Markovic v The Optical Shop Pty Ltd
[2010] VCC 489
•21 May 2010
| IN THE COUNTY COURT OF VICTORIA | Unrevised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES – COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-09-01459
| ZORICA MARKOVIC | Plaintiff |
| v | |
| THE OPTICAL SHOP PTY LTD | Defendant |
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| JUDGE: | HIS HONOUR JUDGE SHELTON |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 3, 4, 5, 8 and 9 February 2010 |
| DATE OF JUDGMENT: | 21 May 2010 |
| CASE MAY BE CITED AS: | Markovic v The Optical Shop Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 0489 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Serious injury application – s.134AB Accident Compensation Act 1985 – magistrate’s decision pursuant to s.60(2) of Act does not give rise to issue estoppel with respect to injury arising in the course of employment or employment being a significant contributing factor to the injury – is injury suffered a compensable injury? – s.82(2C) of Act – was employment with the defendant a significant contributing factor to the injury – histories given to examining doctors – Franklin v Ubaldi Foods Pty Ltd [2005] VSCA 317 – Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853 – Somerville Retail Services Pty Ltd v Vi [2008] VSC 196 – The Darling Island Stevedoring & Lighterage Co Ltd v Hankinson (1967) 117 CLR 19 - Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602 – Petkovski v Galletti [1994] 1 VR 436 – Hegedis v Carlton & United Breweries Ltd (2000) 4 VR 296.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms A E L MacTiernan | Zaparas Lawyers |
| For the Defendant | Mr P D Elliott QC with | Thomson Playford Cutlers |
| Ms M Pilipasidis | ||
| HIS HONOUR: |
Introduction
1 This is an application by way of Originating Motion seeking leave pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) to bring proceedings for the recovery of damages in respect of a lower back injury, being a very large disc protrusion or prolapse at the L4-5 level allegedly suffered by the plaintiff in the course of her employment with the defendant on 31 March 2007 (“the injury”).
2 Section 134AB(19)(a) of the Act provides that I must not give leave to bring the proceedings unless satisfied, on the balance of probabilities, that the injury suffered was a “serious injury”.
3 Section 134AB(37) of the Act, so far as relevant, defines “serious injury” as follows:
“serious injury means –
(a) permanent serious impairment or loss of a body function.”
4 The body function relied upon by the plaintiff for the purpose of paragraph (a) is her lumbar spine.
5 The plaintiff seeks leave to bring proceedings in relation to consequences with respect to both pain and suffering and loss of earning capacity: see s.134AB(38)(b) of the Act.
The Issues
6 On the hearing of the application, two issues were agitated before me: firstly, whether the defendant was estopped from arguing that the injury did not arise in the course of her employment and that employment was not a significant contributing factor to the injury; and, secondly, whether the injury was a compensable injury under the Act, the first matter to be established in an application such as this – see Franklin v Ubaldi Foods Pty Ltd [2005] VSCA 317, at paragraph 7, per Ashley, JA. I turn to deal with each of these issues in turn.
The Estoppel Issue
7 On the second day of the hearing, I ruled that the defendant was not estopped from arguing the matters referred to in the preceding paragraph. I indicated that I would give my reasons for so ruling at the time of delivering judgment on the application. These are those reasons.
8 By way of background, and I rely principally upon the plaintiff’s Amended Statement of Issues, it is not in issue that on 31 March 2007, the plaintiff sustained the injury. The defendant accepted the plaintiff’s Claim for Compensation. Then, by Notice dated 11 July 2007, the defendant, under sections 99 and 114(2) of the Act, terminated the plaintiff’s entitlement to compensation from 30 July 2007. The grounds given in the Notice were:
“Your claimed injury did not arise out of or in the course of employment.
Your employment was not a significant contributing factor to the claimed injury.”
9 On 18 September 2007, a conciliation conference was held pursuant to Part III, Division 2 of the Act. A Conciliation Outcome Certificate dated 20 September 2007 signed by a conciliation officer stated, inter alia:
“Accordingly, under s.59(10), I am taken to be satisfied that there is no genuine dispute with respect to the liability to make or continue to make weekly payments.
In accordance with s.59(7), I direct that the WorkCover agent make payments of weekly compensation in accordance with the Act for the period 30 July 2007 to 19 September 2007 inclusive.
In accordance with s.59(5), I direct that the WorkCover agent make payments of weekly compensation in accordance with the Act for the period 20 September 2007 to 13 December 2007 inclusive.”
10 On 28 September 2007, the WorkCover agent issued a Summons in the Magistrates’ Court seeking orders pursuant to s.60(2) of the Act revoking the directions given by the conciliation officer directing it to reinstate the plaintiff’s weekly payments. On that date, the Magistrates’ Court dismissed the application.
11 There was no appeal from the magistrate’s decision.
12 Ms MacTiernan, who appeared for the plaintiff, submitted that, as a consequence of the magistrate’s decision, the defendant was estopped from arguing that the injury did not arise in the course of employment and that employment was not a significant contributing factor to the injury suffered.
13 In Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853, at 934, Lord Guest stated:
“The requirements of issue estoppel still remain (i) that the same question has been decided; (ii) that the judicial decision which is said to create the estoppel was final; and (iii) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies.”
14 It was not in issue that this was a correct and succinct statement of the requirements of issue estoppel.
15 In Somerville Retail Services Pty Ltd v Vi [2008] VSC 196, Kyrou, J considered a similar scenario where a Conciliation Outcome Certificate contained similar wording, mutatis mutandis, to that contained in the Conciliation Outcome Certificate of 20 September 2007 before me. There, too, the employer applied to the Magistrates’ Court for the revocation of the directions made by the conciliation officer and, as here, the Court dismissed the application. The employer appealed to the Supreme Court against the magistrate’s order under s.109 of the Magistrates’ Court Act 1989 and also applied under Order 56 of the Supreme Court (General Civil Procedure) Rules 2005 for judicial review of the magistrate’s order. Kyrou, J stated, at paragraph 3:
“… It was common ground that, as s109 of the MC Act permits an appeal to the Supreme Court only from a final order of the Magistrates’ Court, if the order was interlocutory, the appeal is incompetent … .”
16 Kyrou, J concluded, at paragraph 4, that the Magistrates’ Court order was not a final order.
17 He stated:
“[34] … However, I have concluded that the Magistrates’ Court order is interlocutory because it did not finally resolve a principal cause pending between the parties notwithstanding that no other proceedings were on foot between the parties. The principal cause between the parties was their dispute as to whether Mrs Vi had suffered a compensable injury for the purposes of the AC Act. The key section is s82. Division 2 of Pt 2 of the AC Act contains conciliation provisions which provide a mechanism for the making of directions of an interim nature. Where a conciliation officer finds that there is no genuine dispute about the employer’s liability to make weekly payments and to make a direction under s59(3), that direction does not finally determine the principal cause between the parties. It does not finally determine that the worker has suffered a compensable injury and the making of payments pursuant to the direction does not constitute an admission of liability. [35] The entitlement to be paid weekly payments pursuant to a direction under s59(3) is for a limited period and even within that period the entitlement may cease because the direction is revoked under s60(1) (for example, on the application of the employer) or because some other event occurs which authorises the employer to cease making payments under s114 or another provision of the AC Act. In short, a direction under s59(3) deals only with part of the dispute between the parties and, although it is an offence not to comply with it, it is of limited temporal effect. It does not put an end to the dispute between the parties. A direction under s59(3) is clearly interlocutory and, in my opinion, it must follow that an order of the Magistrates’ Court refusing to revoke the direction has similar features and must have the same character. This proposition is supported by Victorian Legal Aid v County Court of Victoria, where it was held that a Supreme Court judge’s order refusing to quash an interlocutory costs order made by a County Court judge was itself interlocutory.
[36] The limited and transient nature of the direction tells strongly against an order refusing to revoke it being a final order. The order is similar to an order refusing an application to set aside a statutory demand for payment of a debt, which was held in Aussie to be an interlocutory order because it did not determine a principal dispute between the parties, namely whether the amount claimed was owing.
[37] In any event, in my opinion, the conclusion that the Magistrates’ Court order is interlocutory is inescapable in light of s61(2) of the AC Act, which provides that the grant or refusal by the Magistrates’ Court1of an application for revocation of a direction is not a finding as to liability in respect of the matter in dispute.
[38] The mere fact that the order determined the issue in the proceeding before the Magistrates’ Court does not make the order final. This is because, although the order finally determined the proceeding in which it was made, it did not involve a final adjudication of substantive rights. As submitted by Mr O’Loghlen, the legal consequence of the order refusing to revoke the interlocutory direction is to allow that interlocutory direction to stand, at least for the time being, with no greater effect than it had before the order.”
18 A footnote to paragraph [37] states:
“Although s61(2) refers to the County Court, s 43(3) of the AC Act
enables s61(2) to be read as if it refers to the Magistrates’ Court.”
19 Ms MacTiernan sought to impugn Kyrou, J’s judgment. She particularly referred to paragraph 64 of the judgment which was concerned rather with the application under Order 56.
20 In my view, there is no merit in this submission, which, in my view, does not weaken in any way the reasoning set out in paragraphs [34] to [38] (supra), and, in particular, paragraph [37]. I find the reasoning of Kyrou, J compelling and adopt it.
21 I conclude that the magistrate’s decision of 28 September 2007 is not final and therefore a necessary ingredient for issue estoppel is missing. The defendant is not estopped from arguing that the injury did not arise in the course of the plaintiff’s employment with the defendant and that employment was not a significant contributing factor to the injury.
A Compensable Injury?
22 Final submissions of counsel focussed almost exclusively on this issue and, in particular, the causal connection between the injury and the plaintiff’s employment with the defendant. Refreshingly, there was not the normal trawling through medical reports by counsel seeking to find evidence supporting their stance.
Relevant Facts
23 It is necessary to place the injury in a factual context.
24 The plaintiff was born in Serbia on 4 August 1961 and thus is now aged forty- eight. She migrated with her family to Australia in 1970 and completed Year 12 schooling. It appears she had a good work history, being in constant employment apart from after the birth of her three children and for some time thereafter. She commenced employment with the defendant, which operated a number of optometry shops, in March 2005. She was well-regarded there and in April 2006, was awarded ‘Employee of the Month’.
25 On 24 November 2005, she attended at Rowville Health. The clinical notes from the medical practice for that date state:
“History
Lower back pain since yesterday. Intermittent back pain in the past but usually settle with Panadol. No pins/numbness/
More right side also slight pain thigh.”
Panadeine Forte was prescribed.
26 On Monday, 26 March 2007, the plaintiff attended Rowville Health and saw Dr Jayawardena. She stated that the primary purpose for the visit was in connection with her daughter’s diabetes. The clinical notes from the practice state that the reason for the visit was that the plaintiff “required imaging” as she had ongoing lower back pain radiating to her legs which she stated happened infrequently. Under the heading of “Actions” it is noted that a CT scan and x-ray of the lumbar/sacral spine were requested. However, only an x-ray of the plaintiff’s lumbar spine was performed. A report on this x-ray dated 28 March 2007 stated:
“Good alignment. Vertebral body heights are preserved. Disc space narrowing at L4-5. S1 joints are normal. Minor facet joint degenerative change L5-S1.”
27 On 29 March 2007, on the basis of this x-ray, a diagnosis was made of “muscular back pain”. Dr Darrer at Rowville Health recommended heat, massage, liniment and walking.
28 It is unfortunate that a CT scan was not performed at this time. There was no explanation provided to me as to why a CT scan was not performed. I note, however, the comment of Dr Wafa Michaels of Rowville Health, who gave evidence before me, that a CT scan would only be ordered if the matter was serious.
29 Mary Jane Moorcroft, the general manager of the defendant’s Waverley Gardens shop at the time, who is no longer in the employ of the defendant, stated that on Thursday, 29 March 2007, the plaintiff commenced work there at 9.00 am. When Moorcroft arrived at work at 12.30 pm that day, the plaintiff, she says, told her that her back was very sore. On Friday, 30 March 2007, the plaintiff worked a 4.00 pm to 9.00 pm shift with the defendant at its shop at Waverley Gardens. Moorcroft stated that on commencing her shift, the plaintiff stated that she had thought of not coming to work because of her back pain. Moorcroft stated:
“I observed her, between the time she arrived at the store and the time I left at about 5.30 pm, standing behind the counter in the store shaking her leg saying that it felt numb. She said that she could not sit down because of her condition.”
30 She said that the plaintiff appeared to her to be in considerable pain then. The plaintiff denied this and further, denied that she had made the comments attributed to her on 29 and 30 March 2007.
31 In evidence before me, the plaintiff stated that on Saturday, 31 March 2007, she arrived at the defendant’s Waverley Gardens store at about 9.00 am to commence work. She stated that she opened the roller door at the entrance to the defendant’s premises which was in a shopping plaza. To push up the door completely, it was necessary to use a pole with a hook upon it which attached to the door. The plaintiff states that in leaning across to pick up this pole, which was standing upright at a slight lean just inside the door in a corner, she felt a twinge of pain in her back. She stated that it was not a severe pain. She states that this was the first pain in her back she noticed, that is, that there was no pain felt when opening the roller door. She then performed her normal duties in the course of the morning, which included bending over to empty rubbish bins, bending over to take patient cards from a drawer and some vacuum cleaning. She stated that in the course of the morning she experienced increasing back pain and pins and needles in the left leg. She told an optometrist employed at the defendant’s Waverley Gardens’ store who was on duty that day, Daivik Lawton, jokingly, that she thought she was having a stroke. It is not in issue that she did not mention to Lawton any work incident which caused her increasing back pain which she might have been expected to do were this so. She was taken to Rowville Health and saw Dr Wafa Michaels there at about 3.30 pm. Her clinical notes for the visit state:
“L leg from knee down is numbish
initially in the last 2yrs she was getting a minor low back pain radiate to the thighs for couple of weeks, using hot water, Panadol and rest and it went away
recently in the last month the pain hadn’t gone away, more severe than
the past
had an xr and didn’t show more than disc space narrowing at l4-5
last night, numbness of L leg from knee the foot and toes
on examination: power is normal, including the ankle movement, except
the toes, can’t do dorsiflexion but sensation is reduced on the l sole.”
(sic)
32 Under the heading “Actions”, “last night” is mentioned again.
33 The reference to “last night” on two occasions in the history taken by Dr Michaels is, of course, very relevant, as is reference to the pain increasing in the previous month and in the previous “couple of weeks” radiating to the thighs. Dr Michaels, who was cross-examined, stated, not surprisingly, that she had no independent recollection of the consultation but that she would only have made reference to “last night” if she had been told this by the plaintiff. The plaintiff states that she did not report symptoms from the previous night and that perhaps Dr Michaels had misunderstood her when she stated she was working the previous night.
34 Dr Michaels arranged a CT scan which was performed on Monday, 2 April 2007 at 1.00 pm. On that morning the plaintiff had again consulted Dr Michaels. Her clinical notes state that the plaintiff told her that she had pain in her left foot and the numbness was getting worse and that she was unable to walk well.
35 A report upon the CT scan performed at 1.00 pm that day stated:
“Scans have been performed from L1 down to S1 using a multislice
technique and multiplanar reconstructions performed from this data:
The L1-2, L2-3 and L3-4 levels appear normal.
At L4-5, there is a very large central disc protrusion which severely compresses the theca to a crescentic rim around the large prolapsed disc. The protruding disc measures up to 1.3cm in width, 1.1cm in depth and extends beneath the ligaments posterior to L4 and 5 for a length of about 2.1cm.
The L5-S1 disc is mildly narrowed from degeneration but there is no focal prolapse present.
No bony canal stenosis present. There is some facet joint disease affecting L4-5 and L5-S1 without impingement of the foramina. Alignment is normally maintained.
CONCLUSION:
A very large disc protrusion at L4-5 occupies much of the volume of the canal centred at the disc level.”
36 Given the large central disc protrusion at L4-5 and the plaintiff’s worsening numbness, Dr Michaels arranged for the plaintiff to be immediately admitted to Angliss Hospital, which occurred at 5.33 pm on 2 April 2007. The “nursing assessment” made by the triage nurse on admission to Angliss Hospital notes that the plaintiff had lower back pain for two months which radiated to the thighs over the preceding weekend and left leg numbness. At 6.05 pm on 2 April 2007, Dr Marcia Smart at the Angliss Hospital noted a history of intermittent back pain over the years with a worsening over the previous five days and severe pain over the last three days. Importantly, she notes: “No recollection of injury”. Hospital records indicate that when a history was taken from the plaintiff at 6.45 pm, she complained of back pain for “a few weeks” and “Fri night/Sat am felt L foot numbness/pain/tingling and severe weakness (limping) (dragging foot)”. It appears clear from its wording that this history is actually given by the patient and not taken from the letter of referral from Rowville Health dated 2 April 2007 which is, in essence, a repetition of the clinical notes. There is no mention in the Angliss Hospital records of a work incident which caused the injury – in fact the very opposite, in that the 6.05 pm entry states that there was no recollection of an injury.
37 On the following day, 3 April 2007, the plaintiff was transferred to St Vincent’s Hospital for surgery. The admission history at St Vincent’s Hospital dated 3 April 2007 notes a long history of low-back pain with bilateral radiation to her anterior thigh and low-back pain progressing over the previous week.
38 An MRI scan was performed at St Vincent’s Hospital on 4 April 2007. A report on this MRI scan states:
“FINDINGS:
Mild scoliosis of the lumbar spine convex to the left. No vertebral body fracture nor pars defect.
Conus normally positioned at L1. At T12/L1, mild disc bulge indenting the lower cord.
L1/2, L2/3 demonstrate normal posterior disc contour.
L3/4 demonstrates a mild broad based disc bulge, with right paracentral annular tear. Mild facet joint arthropathy. No central nor foraminal stenosis.
L4/5 demonstrates a very large central disc extrusion, which almost fills the spinal canal. AP diameter of the disc extrusion measures 1.1 cm, and craniocaudal dimension 1 cm, causes high grade central canal stenosis at this level. Mild facet joint arthropathy. The left L4 nerve root exits without compression. There is contact of the right L4 nerve root within the foramen.
L5/S1 demonstrates a mild diffuse disc bulge, and mild to moderate facet joint arthropathy. Within the left foramen, there is contact of the L5 nerve root. The right L5 nerve root exits without compromise.
Incidental 6 mm perineural cyst posterior to S2.
CONCLUSION:
Large L4/5 disc extrusion causes high grade central canal stenosis.
Reported by: Dr B Lui.”
39 On 4 April 2007, a laminectomy and discectomy at the L4-5 level was performed at St Vincent’s Hospital.
40 The St Vincent’s Hospital discharge summary on 10 April 2007 states that the plaintiff had left-sided sciatica and left foot drop, that is, neurological signs, for one week prior to admission. Again, there is no reference in St Vincent’s Hospital records of a work incident which caused the injury.
The Law
41 Section 82 of the Act provides:
“Entitlement to compensation
(1) If there is caused to a worker an injury arising out of or in the course of any employment, the worker shall be entitled to compensation in accordance with this Act.”
42 The words “entitled to compensation” are picked up in s.134AB(1) of the Act which provides that an application pursuant to s.134AB can only be brought by a worker who is “entitled to compensation”.
43 Mr Elliott relied upon section 82(2C) of the Act which states:
“Compensation is not payable in respect of the following injuries unless the worker's employment was a significant contributing factor to the injury—
. . .
(c) a recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease.”
44 A “significant contributing factor” is defined in section 5(1B) of the Act as follows:
“In determining for the purposes of this Act whether a worker's
employment was a significant contributing factor to an injury—
(a) the duration of the worker's current employment; and (b) the nature of the work performed; and (c) the particular tasks of the employment; and (d)
the probable development of the injury occurring if that employment had not taken place; and
(e) the existence of any hereditary risks; and (f) the life-style of the worker; and (g) the activities of the worker outside the workplace— must be taken into account.”
45 Ms MacTiernan sought to rely upon passages of the High Court decision in The Darling Island Stevedoring & Lighterage Co Ltd v Hankinson (1967) 117 CLR 19 in support of a submission that the injury was not:
“a recurrence, aggravation, acceleration, exacerbation or deterioration of
any pre-existing injury or disease.”
46 Were that the case, I would adopt, rather, the principles set out in Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602, at 616, where Ashley, JA stated:
“. . . Most often, a consequence is compensable if it ‘results from or is materially contributed to by’ an injury. The concept of material contribution was a later addition to workers compensation legislation. But even before that addition, the causal connection required by the words ‘results from’ had been construed to require much less than that injury be the sole cause of a consequence. . . . It is enough to say that the Act, as with its predecessors, contemplates that a consequence may have a multiplicity of causes, including a multiplicity of compensable injuries.”
47 The onus then would be on the plaintiff to show only that her injury resulted from or was materially contributed to by her employment with the defendant rather than that the employment was a significant contributing factor to the injury.
48 Certainly Ms MacTiernan opened the case on behalf of the plaintiff on the basis that there had been “aggravation, acceleration and exacerbation and therefore a deterioration of degenerative disc disease”.
49 Further, the estoppel issue was concerned with whether the defendant was estopped from arguing that employment was not a significant contributing factor to the injury.
50 It is not in issue that there was a serious deterioration in the condition of the plaintiff’s lumbar spine at the end of March and early April 2006.
51 In my view, Darling Island Stevedoring does not assist the plaintiff. That case was concerned with the definition of the word “injury” in the context of New South Wales’ Worker’s Compensation legislation. The Court held that the acceleration of a pre-existing asymptomatic condition could be regarded as an injury. The definition of “injury” under sub-paragraph (c) in s.5 of the Act says as much. I fail to see how this decision has any bearing upon the interpretation of s.82(2C)(c) of the Act.
52 Ms MacTiernan also sought to rely upon Hegedis v Carlton & United Breweries Ltd (2000) 4 VR 296. However, there Ashley, J was dealing with a differently worded Act.
53 Further, in any event, since Petkovski v Galletti [1994] 1 VR 436, numerous cases have recognised and dealt with the aggravation of a pre-existing condition, such as here, in a manner totally inconsistent with Ms MacTiernan’s submission, which I reject.
54 Mr Elliott conceded that the evidentiary burden was upon the defendant to satisfy me that the plaintiff’s employment with the defendant was not a significant contributing factor to the deterioration of her back condition, but rather that her back condition would have deteriorated to her present state irrespective of her employment.
Discussion and Conclusion
55 I have not been satisfied that the plaintiff’s employment with the defendant was a significant contributing factor to the injury. I set out my reasons for so concluding.
56 In summary, initially the plaintiff did not connect the injury with her employment. Then, when she did, she seemed uncertain as to how the injury was caused. Next, there was conflict in the evidence as to whether, on 31 March 2007, the plaintiff suffered a sharp pain to her back then going down her left leg or whether it was just a twinge which developed over the next few hours. Finally, there is the evidence before me that the plaintiff had substantial problems with her lower back prior to 31 March 2007 and that the injury would have occurred irrespective of her employment with the defendant.
57 I turn, firstly, to what the plaintiff had to say about the cause of the injury immediately after it occurred. No reference is made to opening the roller door or reaching for the pole to open it to Mr Lawton nor to Dr Michaels, the Angliss Hospital or St Vincent’s Hospital when histories were being taken. In fact, as mentioned, she stated to Dr Smart at 6.05 pm that she had “no recollection of injury”.
58 On the WorkCover Worker’s Claim Forms signed by the plaintiff on 23 April 2007, in answer to the question:
“What happened unexpectantly? (sic)
she answered:
“Nothing out of ordinary, i.e. lifted roller door to enter shop then quick
vacuum of shop.”
59 In answer to the question:
“How exactly were you injured?”
she states:
“Not sure, could have been lifting roller door or vacuum.”
60 In an undated letter to Mr Jerry Jakubobic, then a director of the defendant, which the plaintiff’s states was written at about the time the Claim Form was completed, she states:
“On Saturday, 31-3-07 I went to work at W Gardens as usual. I opened up and did a quick vacuum before the first patient arrived. Soon after I started getting pain and numbness in my left leg.”
61 Doctors at Rowville Health indicate this difficulty on the plaintiff’s part in determining a connection between the injury and the plaintiff’s employment with the defendant.
62 Dr Michaels stated, when she saw the plaintiff on 31 March 2007 she treated her as a private patient rather than a WorkCover patient which suggests that the plaintiff did not mention work as a cause of her back condition.
63 One might have expected this to be mentioned as giving a reason for the considerable pain the plaintiff was experiencing.
64 Dr Lisa Yoffa of Rowville Health, the general practitioner there who normally treated the plaintiff, states, in a report of 6 July 2007:
“I am uncertain as to whether her employment has been materially
related to her injury.”
65 In her clinical notes of 26 July 2007, she states:
“Going to conciliation.
Tells me now that there is a roller door at work they have to open that gets jammed and feels that may have caused the acute disc prolapse.”
(emphasis added).
66 In a report dated 28 August 2007 to the defendant’s insurer, Dr Des Darrer of Rowville Health, states:
“Mrs Markovic states that there is a roller door at work they have to open that gets jammed and she feels that this may have caused the acute disc prolapse. I am unqualified to comment on the relationship of Mrs Markovic’s pain and her employment.”
67 In this application, the plaintiff relies upon a frank incident as giving rise to her injury. Originally she relied upon the opening of the roller door but on the hearing of the application she relied rather upon reaching for the pole to open the roller door. The application was run before me on the basis that the opening of the roller door and reaching for the pole were separate incidents and that reaching for the pole was not to be regarded as part of opening the roller door.
68 In her affidavit sworn 4 December 2008, the plaintiff states that as she pushed the roller door up it jammed and this caused a jolt to her body.
69 Paragraph 7 of the Draft Statement of Claim filed in this proceeding states:
“On 31 March 2007 the plaintiff had unlocked the roller door on the premises, and whilst raising the door, it jammed, causing a jolt to the plaintiff’s torso, the result of which caused the plaintiff to suffer injury.”
70 A chronology handed to me at the commencement of the hearing of the application stated, for 31 March 2007:
“Body jolted when roller door plaintiff was lifting jammed.”
This entry was obviously based upon the Draft Statement of Claim.
71 At the commencement of the hearing, Ms MacTiernan amended the chronology by replacing the word “body” with “door”. In a final address however, Ms MacTiernan sought to rely upon the lifting of the roller door as causing the injury.
72 The clinical notes of 26 July 2007 and the report from Rowville Health of 28 August 2007 connect the injury with the opening of the roller door.
73 Further, there was conflict in the evidence as to whether, on 31 March 2007, the plaintiff suffered a sharp pain to her back and going down her left leg or whether it was just a twinge which developed over the next few hours.
74 As indicated above, the plaintiff gave evidence before me that she suffered a slight pain or a twinge in her back when leaning over to take a pole and that this worsened over a few hours.
75 Dr Peter Blombery, consultant physician specialising in vascular disease, examined the plaintiff on 18 June 2009 and provided a report to the plaintiff’s solicitors dated 8 July 2009. He takes a history of the back pain commencing when the plaintiff reached for the pole and of the pain developing over a few hours.
76 Mr Brian Barrett, orthopaedic surgeon, examined the plaintiff on 8 April 2008. In a report of 10 April 2008 to a general practitioner in Yarraville, who, it appears was then treating the plaintiff, he stated that the plaintiff –
“… was lifting an external roller door at the shop entrance on 31 March last year when she complained of lower back pain, which steadily increased that morning and after moving a rubbish bin preparatory to starting her work, she had pain, numbness and tingling down her left leg as far as the foot.”
77 Then in a report to the plaintiff’s solicitors dated 20 May 2008, he states:
“She first complained of a sudden attack of low-back pain as she twisted to place a steel locking pole in position, to hold the door, this low-back pain steadily increasing.”
78 Mr Jonathan Hooper, a medical specialist who examined the plaintiff for the defendant on 21 May 2007, provided a report of 22 May 2007, which states:
“She said on the 21 March 2007 [it was agreed this should refer to 31 March 2007] she was pushing a roller door, she got a sudden onset of back pain and very severe leg pain. She said she has had occasional back ache on and off over the past two years, but she had never had any previous back or leg pain like this.”
79 The plaintiff states that she cannot recall telling Mr Hooper what he reports with respect to the roller door. Ms MacTiernan conceded that Mr Hooper had recorded an incorrect history.
80 Dr James Rowe, specialist occupational physician, examined the plaintiff for the defendant on 14 January 2010 and provided a report of that date. He records a history of the plaintiff “opening a roller door when she felt sudden, severe low-back pain”.
81 Mr Rodney Simm, orthopaedic surgeon, examined the plaintiff for the defendant on two occasions, on 14 December 2007 and 26 August 2009, and has provided reports dated 14 December 2007 and 1 September 2009. He took a history from the plaintiff that she experienced a twinge of lumbar pain when reaching for the pole.
82 Mr Bruce Love, orthopaedic surgeon, in a report dated 10 June 2009, states that the plaintiff told him on 9 June 2009 that she experienced a “ping” in her back as she was lifting the roller door. The pain then gradually worsened.
83 Mr Keith Elsner, orthopaedic surgeon, took a history on 3 September 2008 of “not severe” pain in the plaintiff’s lower back when she was pulling up the roller door and that the pain thereafter developed.
84 On 5 May 2009, Dr Timothy Entwisle, consultant psychiatrist, took a history of an incident with the roller door with the pain then increasing and radiating to the left leg.
85 Mr Charles Flanc, vascular and general surgeon, took the following history on 17 October 2007:
“Mrs Markovic arrived at about 9.00am and opened the door as usual. She believes that it ‘jammed as usual’, but she did not recall any pain at the moment of lifting. However, she recalled feeling pain in the lower back as she bent over and reached for the rod with her right hand. This pain was of short duration and she was able to continue with her usual duties.
She walked into the shop and switched on the lights at the back of the shop. She then checked the fridge and checked the office. She then put her handbag away and she told me that there was no pain in the lower back at that time.
About 2-3 minutes after she entered the shop, she bent over and pulled out a wire basket from under a desk. As she straightened, she again felt pain in the lower back.
She then vacuumed the carpet without any pain. Following this, she bent over to obtain some patient cards, at which stage she again felt pain in the lower back.
She worked on and about half an hour after she started work while sitting at the desk, she noticed a ‘burning sensation over the outer part of the left leg, especially the knee’. She could not remember whether she was suffering from back pain at that time. She continued working, but the discomfort over the outer part of her left leg persisted and extended into the left foot and all of her toes (except the great toe). The pain and discomfort in her left leg became more and more severe and she had to stop work at about 2.30pm.”
86 Mr Brownbill, consultant neurosurgeon, examined the plaintiff on 13 November 2007. He took a history of the plaintiff experiencing “a sharp jab of pain in the lower back” when she reached to pick up the pole.
87 Dr Clayton Thomas, a consultant in rehabilitation and pain medicine, took a similar history on 3 December 2008.
88 Associate Professor John Balla, consultant neurologist, also took a similar history.
89 Ms Leonie Schneider of Australian Vocational Link took a history from the plaintiff on 21 May 2009 that she injured her back while opening a roller door and had to stop work immediately.
90 I think there is some merit in the submission of Mr Elliott, one of Her Majesty’s Counsel who, with Ms Pilipasidis appeared on behalf of the defendant, that the plaintiff was reconstructing in her own mind what occurred on 31 March 2007 and endeavouring to establish a causal link between her injury and employment with the defendant.
91 A further problem faced by the plaintiff is the evidence before me that the plaintiff had substantial problems with her lower back prior to 31 March 2007 and that the injury would have occurred irrespective of her employment with the defendant.
92 The starting point is the plaintiff, on 26 March 2007 requiring that investigations be carried out on her back and the suggestion that a CT scan be carried out which Dr Michaels stated would only be done for a back injury of some seriousness.
93 Dr Darrer saw the plaintiff at Rowville Health on 27 July 2007. The clinical notes indicate that the plaintiff was upset that WorkCover had rejected her claim. She stated to him that she felt that the fairly normal x-ray of 29 March 2007 “implied that there was no disc prolapse at that time”. He notes:
“Explained this isn’t so, in fact there was L4-5 narrowing visible on the
x-ray.”
94 The histories taken by Dr Michaels on 24 November 2005, 26 March 2007 and 31 March 2007, at the Angliss Hospital on 2 April 2007 and at St Vincent’s Hospital on 3 April 2007 as summarised above, are not supportive of the plaintiff’s position as to prior back problems. I find the plaintiff’s suggestion that perhaps Dr Michaels had misunderstood her when she stated that she was working the previous night somewhat unconvincing.
95 The defendant seeks to rely upon the evidence of Mary Jane Moorcroft as to what she states she saw and was told by the plaintiff on 29 and 30 March 2007.
96 A concern is that Moorcroft stated that the plaintiff could not have been vacuuming on 31 March 2007 since she had vacuumed the shop on the previous day and taken out the bag and had then purchased a new one which had not been put in the vacuum cleaner prior to 31 March 2007. In a statement made on 2 July 2007, although referring to the vacuum cleaner, she did not refer to the fact that it could not have been used on the Saturday morning. She stated:
“The vacuum cleaner used in the store is quite noisy. I doubt whether Zorica would have used the vacuum cleaner in the store as tests of patients were being conducted in the store. I doubt that she used the cleaner on that day because when she arrived a patient was already being tested. … There is not time to vacuum on a Saturday morning and in any event the store did not need vacuuming as I had vacuumed the store on the day before. I usually attend to vacuuming the store which is carried out every second or third day. It is not a task that is required to be done daily.”
97 Although Moorcroft is no longer working for the defendant, and in that sense can be said to be an independent witness, I find it hard to accept that if the vacuum cleaner could not be used on 31 March 2007, she did not mention this in her statement made just three months later. Further, she gave her evidence in a very confused and unsatisfactory fashion. Still, the statement by her that the plaintiff stated on 30 March 2007 that her leg felt numb does have a ring of truth about it and is consistent with the clinical notes of Dr Michaels from 31 March 2007 and histories given to doctors. In the circumstances, I accept Moorcroft’s evidence as to what occurred on 29 and 30 March 2009.
98 I appreciate that histories taken by doctors and hospitals are to be approached with some caution: (refer to Franklin (supra) at footnote 5, per Ashley, JA.) Still, I am here faced with several histories which are inconsistent with the evidence given by the plaintiff. Apart from casting doubt on the plaintiff’s credibility as a witness, the incorrect histories also infect the opinions given by medical reporters, such as Messrs Barrett, Hooper and Elsner.
99 Mr Simm stated, in viva voce evidence, that it would be highly unlikely that the plaintiff’s action in reaching for the pole would have caused the prolapse to occur.
100 Mr Simm states that there must have been some pre-existing problem and that the prolapse has just slowly increased as she has gone about her normal duties on the morning of 31 March 2007 and that on that morning the disc at the L4-5 level was moving out and compressing the surrounding nerves.
101 In his report of 1 September 2009, Mr Simm states:
“On the basis of the available information, it would appear that the prolapse of the L4/5 invertebral disc with nerve root involvement occurred prior to 31 March 2007. There may have been some progression of the lumbar disc prolapse on 31 March 2007.”
102 He concludes:
“I do not believe opening the roller door has influenced the clinical course of her advanced L4/5 lumbar disc degeneration. The pathology was severe and pre-existing. She had already reported symptoms of numbness in the left leg indicating that there was nerve root involvement from the L4/5 disc prolapse. The observations made by Mary Jane Moorcroft were that Mrs Markovic was distressed with symptoms consistent with the lumbar disc prolapse on the preceding day. The degenerate L4/5 lumbar invertebral disc was the most unstable structure prone to spontaneous and further protrusion in the days following the onset of her left lower limb pain and numbness. One does not have to invoke a history of trauma to explain her clinical course. … I believe it is likely that the worker would have required surgery on 4 April 2007 as a result of advanced L4/5 lumbar disc degeneration with an associated disc protrusion which was independent of any alleged aggravation on 31 March 2007.”
103 Mr Charles Flanc examined the plaintiff on 17 October 2007 and 12 October 2009. In a report of 20 October 2009 to the plaintiff’s solicitors, he states:
“I still consider that the specific episode which occurred on 31/3/2007 when she pulled up the roller door at work was a significant contributing factor to an aggravation of her pre-existing disc degeneration of the lumbar spine in the sense that it became symptomatic and probably initiated a disc prolapse at the L4-5 level which in turn caused compression of left-sided nerve roots. …
… I have come to this conclusion because her previous episodes of back pain had been of short duration and had always resolved and did not result in any loss of time at work.
I would therefore regard the injury which occurred in March 2007 as still being a significant contributor to her current status.”
104 In expressing this opinion, Mr Flanc relies upon the lifting of the roller door as causing the injury, whereas in his earlier report of 2 January 2008, he takes a history of no pain at the moment of lifting the door.
105 I appreciate that some medical reporters find a causal connection between the plaintiff’s injury and her employment with the defendant. These were conveniently summarised in a document prepared by Ms MacTiernan. However, it is necessary also to take into account the matters referred to above.
106 In her opening, Ms MacTiernan indicated that she was relying upon Ansett Australia Ltd v Taylor [2006] VSCA 171, on the basis that the defendant had accepted liability for the plaintiff’s s.98(c) claim for her lower back and left radiculopathy. She did not rely upon this case in her final address.
107 For the sake of completeness, I note that in that case, Ashley, JA stated, at paragraph 40:
“Having regard, however, to the very serious consequences for the Authority or self-insurer flowing from acceptance of a claim – not only in respect of compensation payable under s.98C or s.98E, but also, potentially, with respect to s.134AB(3) and (15) – I consider that such an admission should ordinarily be regarded as very significant; albeit not conclusive, because a defendant, in a particular case, might be able to satisfactorily explain its conduct.”
108 His Honour, in paragraph 46ff, set out eleven matters in support of his conclusion that an admission made by the insurer was not conclusive. In particular, he stated, at paragraph 53:
“Seventh, it is true that a favourable decision under s.134AB(16)(b) only allowed a worker to access a gateway, this permitting commencement of a common law action. But it does not follow, in the context of consideration whether the worker had accessed the gateway, that an administrative decision to accept liability in relation to a claim in respect of injury allegedly occurring on or after 20 October 1999 should stand as conclusive proof that such injury had been sustained.”
109 In my view, the defendant has successful discharged the evidentiary burden cast upon it. I am satisfied that the employment of the plaintiff by the defendant was not a significant contributing factor in the deterioration of her back condition at the end of March 2007.
110 Further, even adopting the lower standard of Grech, I am not satisfied that the injury resulted from or was materially contributed to by her employment with the defendant.
111 Thus, I am not satisfied that the plaintiff suffered a compensable injury on 31 March 2007 in the course of her employment with the defendant.
112 The application fails.
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