Redzic v The Doctor in the House

[2015] VMC 16

IN THE MAGISTRATES COURT OF VICTORIA

AT MELBOURNE

WORKCOVER DIVISION

Case No.E12468449

SANELA REDZIC	Plaintiff
v
THE DOCTOR IN THE HOUSE PTY LTD TRADING AS “THE SHOWER DOCTOR”	Defendant

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MAGISTRATE:	S GARNETT
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13, 14 & 15 MAY 2015
DATE OF DECISION:	3 JUNE 2015
CASE MAY BE CITED AS:	REDZIC v THE DOCTOR IN THE HOUSE

REASONS FOR DECISION

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Catchwords: S 109 Rejection of claim – alleged fall at work on 23 January 2014 –  back and right leg pain, anxiety/depression and ‘chronic pain syndrome’ - whether alleged incident occurred – credit issues. Claim dismissed.   

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr Dimsey	Hounslow Lawyers
For the Defendant	Mr McKenzie	Russell Kennedy

HIS HONOUR:

1       Ms Redzic is 25 years of age and commenced employment with the defendant (which specialises in repairing leaking showers, shower remodelling and bathroom renovations) as a Administrative Assistant on 10 December 2013. She alleges that she sustained injuries to her back and right leg together with anxiety/depression as a result of a fall in the course of her employment on 23 January 2014. During the Hearing, she sought and was granted leave to amend the particulars of injury to include an injury described as, ‘chronic pain syndrome’.

2       The defendant denies that the alleged incident occurred.

3       Ms Redzic gave evidence as did her mother, her treating general practitioner, Dr Fixler and Dr Clayton Thomas, Consultant in Rehabilitation and Pain Medicine. The defendant called evidence from Mr James, owner of the business, Ms Davey who is employed as a receptionist by the defendant and who Ms Redzic alleges witnessed her fall and Ms Fieldhouse who is employed by the defendant as its part-time bookkeeper. The parties tendered numerous medical records and reports, documents including sketches of the layout of the defendant’s premises and photos and DVDs of the premises.

4       The principal issue to determine is whether or not the alleged fall occurred as asserted by Ms Redzic. The credibility of Ms Redzic is a determinative factor. She gave evidence over the 3 day period totalling 5 ½ hours of which she was cross examined for approximately 4 ½ hours. For the reasons that follow, I did not find her to be a credible witness and her claim is dismissed.

5       Ms Redzic lodged a WorkCover claim form for compensation dated 28 February 2014, completed by her lawyer, alleging that she sustained back and right leg injuries as a consequence of “heavy and repetitive lifting and manoeuvring of various materials during the course of her employment and tripped over tiles left at the bottom of the steps” on 23 January 2014. In her claim form, she asserted that she reported the injury to Sam (Ms Davey) and Liz Staynor. She also alleged that she had previously suffered from “back pain in late 2012/early 2013 but made a good recovery”. During the hearing, she restricted her claim to allege that her injuries occurred on 23 January 2014  as a consequence of the fall and not throughout the course of her employment.

6       Ms Redzic’s claim was rejected by QBE on 22 April 2014 on the basis that her employment was not a significant contributing factor to her condition.

7       The evidence revealed that Ms Redzic obtained employment with the defendant through the assistance of Advance Personal Management being an organisation which assists those with disabilities obtain employment. It is not in dispute that during her pre-employment interview Ms Redzic informed Mr James that she had suffered from the past back problems which occurred whilst she was caring for her mother. In general, it was also not in dispute that her duties involved answering telephone calls, booking and scheduling quotations, ordering stock, cleaning and doing general tidying up duties in the shop. Mr James and Ms Davey gave evidence that Ms Redzic made a number of data entry mistakes in January 2014 and that Mr James had reason to talk to her about these mistakes on a number of occasions. Ms Fieldhouse also confirmed that Ms Rezdic made a number of filing errors when assisting her and she asked Ms Staynor that she not arrange for her to assist in the future. Ms Redzic conceded that she may have made mistakes in recording information but disputed that Mr James had spoken to her about those mistakes and denied the suggestion that she anticipated that her employment would be terminated when Mr James returned from annual leave at the end of January. Ms Davey gave evidence that Ms Redzic had difficulty in following instructions and recording details accurately and she recalled that on 22 January, Ms Redzic appeared “spaced out” and when she asked her if she was feeling okay, Ms Redzic told her that she did feel “spaced out”. Ms Redzic and Ms Davey gave evidence that approximately one week before the alleged incident, Mr James went on leave and requested that they tidy up the shop including the tool room and the tile room which was situated downstairs.

The Incident

8       Ms Redzic gave evidence that on 23 January 2014 she had collected waste material from the storage room upstairs, which she described as “an absolute mess” as it contained broken plaster, broken tiles and grout. She said that she put this material in a black plastic rectangular tub, the dimensions being 1 m long by 40 to 50 cm wide and 50 cm in depth. She asserted that she carried the tub which was half full and weighed between 5 and 10 kg down the narrow stairwell from upstairs to the ground floor in order to put it into a dumpster at the rear of the premises. Ms Redzic testified that as she reached the bottom of the stairwell, carrying the tub lengthways in front of her, she tripped on a cardboard box containing three tiles and two loose tiles leaning against the box and fell into the wall and then on to the ground on her right side near the double doors leading to the back of the shop. She told the court that the tiles were 1 metre in length and 30 cm in width. She also said that there was a vacuum cleaner near the doors where she fell. She told the court that as a result of falling the contents of the plastic tub spilled onto the floor and the plastic tub broke in two. She said that as a result of falling she cut her finger and experienced pain in her back and right leg.

9       Ms Redzic told the court that when she went upstairs to clean the tool room the box of tiles was not at the base of the stairwell and the only other employees present at the time were Ms Davey and Denver Wyatt who was upstairs at the time working on his computer. She also said that he left the shop at some stage during the day. Ms Redzic said that immediately after she fell Ms Davey came up to her whilst she was on the floor and said; “you better clean it up”. In cross examination, Ms Redzic told the court that when Ms Davey approached her as she was on the floor she said; “Oh my God, they are display tiles and they should be cleaned up”. Ms Redzic told the court that Ms Davey then walked off as she was still on the floor and she then picked up the broken tiles and put them on a trailer at the back of the shop and put the rubbish into the dump master. She said that she then rang her mother on her own phone when she returned to the reception desk to tell her that she had fallen and that she was experiencing back spasms as she said her mother would know what to do as she had previously suffered from serious back injuries involving spasms and had undergone surgery on her back in the past.

10      Ms Redzic gave evidence that the office was quiet at the time of her fall and that the fall and the spillage from the plastic tub caused a loud noise. She said that Ms Davey was sitting at the reception desk at the time approximately 3 metres away and would not have been able to see the precise area where she fell from her desk as she had a computer terminal in front of her but she would have heard the noise. Ms Redzic gave evidence that she asked Ms Davey if she could use to defendant’s phone to report the incident to Liz Staynor and was given permission to do so but Ms Davey told her “to be quick” as she had to leave the shop and take stock to Kew. Ms Redzic said that she then reported the incident by text message on the defendant’s Iphone to Liz Staynor who was out of the office at the time. She said that at approximately 2.30-3p.m., Liz Staynor responded by text suggesting that she visit a myotherapist who was situated a few doors down from the shop. Ms Redzic said that she rang Dr Fixler who advised her not to see a myotherapist and that she should attend his surgery which she did at 6 p.m. that night accompanied by her mother, after she left work early at approximately 3 p.m.

11      In cross examination, Ms Redzic agreed that she sent a text message to Ms Davey at 8.38 p.m. that evening which stated; Hey Hun I had to go for a M IR as I have caught my sciatica nerve in my back from my disc I have a medical certificate im in so much pain so I won’t be in tomorrow so sorry but APM is not happy that I was cleaning a stock room out when I said that in my interview that I cannot lift anything because of my injury but it’s only for tomorrow I have off but I think I need to speak to Liz about my lifting and I do want to help as much as possible for the company and continue to do so, I love working with everyone. Do you think im being more of inconvenience not being able to lift at work honestly? Does Liz recon im doing ok and she still wants me there? Even though I have an injury prior to starting there. Ms Redzic agreed that there was no mention of the fall in the text message but was adamant that in her text to Liz Staynor she did mention that she had fallen. The defendant produced screenshots of text messages sent on its Iphone which did not reveal any text messages being sent to Liz Staynor that day. Ms Redzic said that she could not produce any screenshot of text messages sent by her phone that day as it is currently being fixed by a friend. Liz Staynor was not called to give evidence and she is no longer employed by the defendant and apparently left on acrimonious terms. Ms Redzic was referred to and asked to explain the contents of a Medical Questionnaire completed by Dr Fixler on 13 April 2014 which, when asked what caused the injury, he wrote: heavy lifting and bending at work on 23 January 2014 resulted in exacerbation or aggravation of back pain… Also tripped over tiles at bottom of steps. Ms Redzic said that it was the heavy lifting of the plastic tub that made her fall down the stairs as the lifting aggravated her back, whilst wearing high heels, which caused her to fall.

12      In the course of giving evidence, Mr James disputed that Ms Redzic was required to clean up plaster and broken tiles from the tool room as he said the tool room did not contain such items. He said that all staff were fully aware that the female employees were not required to perform lifting duties as the tradesmen perform that task. He also told the court that during her pre-employment interview, Ms Redzic had told him that her back was better and she was comfortable lifting 5, 10 or even 20 kg. He also disputed the size of the tiles Ms Redzic asserted she tripped on as he said they do not stock tiles 1 m in length and the largest tile in stock is rectangular in shape and 600 mm in length and 300mm in width. Furthermore, he said that all of the tiles are kept in the tile room which is situated behind the doors where Ms Redzic alleges she fell. Mr James also told the court that according to the defendant’s records, Mr Wyatt did not leave the shop between approximately 8.30 a.m. and 4.12 p.m. that day.

13      Ms Davey gave evidence that she did not place the tiles at the bottom of the stairwell and that the defendant does not stock tiles 1 m in length. She told the court that the biggest tile is 600 mm x 300 mm. Ms Davey denied seeing Ms Redzic fall or hearing any noise when she was at her reception desk at the time the alleged fall occurred. She denied seeing Ms Redzic on the floor at the base of the stairwell and telling her that she better clean the mess up. Mr Davey said; “it is all false”. Ms Davey testified that she recalled Ms Redzic mentioning to her when she was standing at the bottom of the stairwell at approximately 2 p.m. that she had “hurt her back” or had a “sore back” but did not relate it to any incident or accident. She told the court that she suggested to Ms Redzic that she sit down and rest and after doing so they both went out the back of the shop to have a “smoke”. Ms Davey gave evidence that she rang Liz Staynor to inform her that Ms Redzic complained of having a sore back and Liz Staynor suggested to her that she tell Ms Redzic to see the myotherapist situated a few doors away. Ms Davey told the court that Ms Redzic did not make any telephone calls or text messages in her presence. In cross examination, she agreed that in a statement she made to an investigator on 17 April 2014, she did state that Ms Redzic sent a text message to Ms Staynor to report the injury in her presence.  Ms Davey said that she left the shop shortly after 2 p.m. in order to take supplies to a job site in Elwood and took the defendant’s Iphone with her. She said that she returned to the shop at approximately 3 p.m. and Ms Redzic was still present. Ms Davey confirmed that she received a text message from Ms Redzic at 8.38 p.m. that evening which she forwarded to Liz Staynor.

14      Mrs Redzic gave evidence that her daughter rang her in the late morning on 23 January to inform her that she had fallen down stairs at work and hurt her back and cut her finger. She told the court that her daughter told her that she could not move her back and legs and was in pain and she told her that she would help her through the “spasm” by suggesting to her that she “pull in her stomach and breathe through it” to relieve the spasm. She also said that she told her daughter to lie on the couch but her daughter said that she couldn’t because it would not be a “good look”. Mrs Redzic told the court that she also told her daughter to ring Dr Fixler or an ambulance but her daughter told her that she could not leave the shop because no one else was present. Mrs Redzic gave evidence that when her daughter came home she took her to see Dr Fixler and was present in the consultation room when her daughter told Dr Fixler what happened.

15      The medical evidence indicates that Ms Redzic has experienced significant back pain and associated symptoms and has required high doses of medication since 2005. She told the court that she first experienced back problems as a result of a fall from a horse on a school camp in 2005. She also said that from 2010 she has experienced regular bouts of back pain as a result of being a carer for her mother who suffers from a significant back injury which has required her to undergo multiple surgeries. Ms Redzic said that she did experience a low back strain whilst working at Campbell’s Cash and Carry Wholesale between 2008 and 2010 from which she recovered. She gave evidence that on 18 July 2012, whilst assisting her mother up steps, they tripped with her mother falling on top of her. In cross examination, she was referred to a medical entry by Dr Fixler on 18 July 2012, which indicated that she attended as a result of being hit in her lower back by her mother’s walking stick, was unable to walk due to her pain, had moved out of home and had a lot of depression and stress. Ms Redzic said this incident happened later in the day after her mother had fallen on her and agreed that she did not provide Dr Fixler with a history of the fall. She told the court that her back problems did not persist for long but she had occasional flare-ups.

16      Ms Redzic told the court that although she had a history of back problems and had been prescribed numerous medications over the years including Tramal and Endone, she ceased taking this medication prior to commencing employment with the defendant because the medication made her feel drowsy, incoherent and nauseated. Ms Redzic gave evidence that she told the defendant at her job interview about her prior back problem. In cross examination, she agreed that she told them that she had “recovered completely” and had not experienced back pain since March 2013. When clarification was sought by me she said that her back pain had “almost resolved” and that she was still experiencing a few symptoms but they were not as severe as in the past and did not require her to take medication, “except perhaps” Voltaren.

17      In cross-examination, Ms Redzic was questioned about the history she gave to Mr O’Brien, orthopaedic surgeon who assessed her on behalf of her lawyers on 25 February 2015 that she had suffered a “stroke” in 2008. She gave evidence that she suffered from a transient ischaemic attack on her right side due to stress and that she lost use of half of her body and was hospitalised for a period of 3 weeks. She told the court that Dr Fixler was aware of her suffering a stroke and the treatment she received at the Box Hill Hospital. Dr Fixler testified that he was unaware of this event.

18       During cross examination, Ms Redzic disputed the evidence given by Ms Fieldhouse that she had told her that she had previously injured her back whilst working at a restaurant. Ms Redzic said the conversation never took place.

19      Ms Redzic also disputed the assertion that she failed to provide a complete and accurate history to all doctors that have either treated her or assessed her for the purposes of this proceeding. When it was pointed out to her that she only told Dr Clayton Thomas of an episode of backache in 2010 following a fall and from which she made a full recovery she said that she assumed Dr Fixler would have provided him with her history as he arranged the referral.

20      Dr Fixler gave evidence that he has treated Ms Redzic since she was 2 weeks old. The medical reports prepared by him and his records indicate that he first treated Ms Redzic for back pain on 10 May 2005, following a horse riding incident and he diagnosed that she sustained a ligament strain. He prescribed Voltaren and Valium. He saw her in April 2010, following her return from Canada where he arranged for a CT scan to be performed which revealed no abnormality in the spine. The cause for her back pain was not recorded and the records indicate she was prescribed Naprosyn and Panadeine Forte. In July 2010, Ms Redzic attended his surgery complaining of back, neck and shoulder pain for which he prescribed analgesics and anti-inflammatory medication. An MRI scan was performed on 28 October 2010 which was reported as being essentially normal. She re-attended on 26 November 2010 with a history of back pain after pushing a car and once again analgesics and anti-inflammatory medication were prescribed. The records indicate that she attended on 3 February 2011, with back pain and referred right leg pain which he diagnosed as a disc strain and for which he prescribed analgesics, narcotic and non-narcotic anti-inflammatory medication and muscle relaxants. On 17 February 2011, Dr Fixler recorded that Ms Redzic attended complaining of an aggravation of back pain as a result of falling in a bath. On 28 July 2011, she attended complaining of bilateral buttock and leg pain and told him that she had been seen at the Anglis Hospital and Box Hill Hospital with back pain. He reported that a Bone Scan performed at the Royal Melbourne Hospital was normal. On 10 October 2011, she told Dr Fixler that she was in severe back pain and was suffering migraines and he noted she was suffering from a panic disorder and depression. On 18 July 2012, she attended complaining of very severe back pain as a consequence of being hit in her lower back by her mother’s walking stick. Dr Fixler reported that a CT scan performed on 19 July 2012 was essentially normal. In August 2012, she was prescribed Panadol Osteo, Voltaren, Endone, Mogadon and Valium. During 2013 she regularly attended and was prescribed high doses of medication.

21      On 13 August 2013, Ms Redzic told Dr Fixler that she could not sit longer than 10 minutes because of her back pain and he recorded that she was taking a multitude of medications without significant benefit. She also attended on 24 October 2013, approximately 6 weeks before she commenced employment with the defendant, complaining of right lumbosacral disc strain and right sided sacroiliac strain with sciatica. As noted, various medications were prescribed with Endone, Voltaren and subsequently Tramal added to the mixture. Dr Fixler gave evidence that on 18 December 2013, 8 days after commencing employment with the defendant, Ms Redzic attended wanting more medication as her back pain had increased. At that time she had already been prescribed Panadol Osteo, Panadeine Forte, Endone, Murelax and Valium. She was then prescribed Naprosyn. Dr Fixler gave evidence that Ms Redzic never told him that she had ceased taking medication prior to commencing employment with the defendant.

22      Dr Fixler reported that Ms Redzic attended on 23 January 2014 complaining of back pain after cleaning a store room and moving heavy boxes of rubbish, tools and broken tiles and after carrying a box weighing approximately 10 kg downstairs when she tripped at the bottom, over a tile and fell. On examination, he found that her low back was tender, she had limitation of movement and right sided sciatica. He added Lyrica to her existing medications. The clinical records do not record this history. When questioned as to the reason why the history was not recorded in his clinical notes he told the court that it was because “he had a lack of time to do it or he was not told”. When informed that the first record of this history appeared in the medical questionnaire on 13 April 2014, he said that he did so because, it was at that stage that Ms Redzic indicated to him that she wanted to make a WorkCover claim or it may have been the first time he was given a full history of the alleged incident. During cross examination, Dr Fixler agreed that he is “100%” reliant on the history given to him by Ms Redzic and her veracity. He also agreed that Ms Redzic first complained that her back and leg pain was caused by heavy lifting and bending and then mentioned to him that it was also caused by tripping over tiles. When told that Ms Redzic testified that she did not experience pain on 23 January before the fall, he agreed that this evidence was inconsistent with her history of long-standing and non-remitting back pain since 2005. He also told the court that he could not recall Ms Redzic ringing him on 23 January seeking his medical advice as to whether it was appropriate for her to attend a myotherapist.

23      Dr Fixler reported that he has continued to treat Ms Redzic, arranged for her to undergo radiological investigations which included a CT scan on 31 January 2014, MRI scan of the spine on 20 March 2014 and MRI Scan of the scarum and right hip on 25 September 2014. Apart from the initial CT Scan which indicated small protrusions at L3-4 and L4-5, the MRI scans did not reveal any abnormality. Dr Fixler also referred Ms Redzic to neurosurgeons Mr Goldschlager and Mr D’Urso. Mr Goldschlager reported that it was difficult to pinpoint her pain in view of the normal radiological investigations and Mr D’Urso reported that in view of the numerous normal radiological investigations he was uncertain as to why Ms Redzic was so symptomatic. He suggested hydrotherapy and that she should weaned off her addictive medications.

24      Dr Fixler concluded that Ms Redzic suffers from a chronic pain syndrome compounded by a significant degree of anxiety, depression and frustration. During cross examination, he agreed that if a finding is made by the court that the alleged incident did not in fact occur, her complaints of back pain and psychological issues is entirely consistent with her long-standing condition. He also agreed that her numerous presentations over the years and heavy reliance on medication is extraordinary for a person of such a young age.

25      Dr Clayton Thomas gave evidence and a report prepared by him and dated 3 April 2015 was tendered following his only assessment of Ms Redzic on 31 March 2015, on referral from Dr Fixler. He obtained a history that in January 2014 she had a box of rubbish which she was taking to the rubbish bins and was coming out of the back of the shop going down some steps and was not able to see a stack of ceramic tiles, when the box hit the tiles and she fell forward landing on her right hand side. He reported that Ms Redzic told him she had severe spasms, could not move and “actually called her mother in this position”. Dr Clayton Thomas reported that Ms Redzic was taking a hefty amount of medication, Norflex 100 mg three times per day, magnesium and mega-vitamin B, Panadol Osteo 4 times per day, Murelax 60 mg at night, Voltaren, six Valium per day, 60 mg of OxyContin daily and 3 Endone tablets per day. After reviewing the MRI scan dated 20 March 2014 which he noted was normal, he diagnosed that Ms Redzic was suffering from a chronic pain syndrome, organic in nature which he described as “pain is the disease”. He told the court that he initially diagnosed her condition as organically based on the basis of his clinical findings. Dr Clayton Thomas gave evidence that apart from being given a past history by Ms Redzic of back ache in 2010 after a fall, from which she made a good recovery, he was not provided with any other history of long-standing back problems. After being told and given access to Dr Fixler’s records he said that he was “disappointed” that she withheld her complete history from him and told the court that he considers her not to be a “reliable witness”. He diagnosed that she suffers from a chronic long-standing pain condition and has been on strong medication throughout. He called into question the significance of any incident on 23 January 2014 and told the court that if it finds the incident did not in fact occur she may well be in the state that she is, in any event.

26      Mr Scott, General Surgeon, assessed Ms Redzic for QBE on 14 April 2014. He obtained a history from her that on 23 January 2014, she was asked to clean a storeroom above ground level and she had to move boxes of tools and rubbish and broken tiles. She told him that she was carrying a box weighing probably 10 kg or more down some stairs when she tripped over a tile at the bottom of the step and stumbled and fell and injured her back. Mr Scott opined after conducting an examination and reviewing the results of the CT scan dated 31 January 2014 that Ms Redzic had an acute back strain and a discogenic lesion of the lumbosacral spine causing right-sided nerve root irritation caused by lifting rubbish in the storeroom on 23 January, it being a recurrence of the problem in 2012, from which she had recovered.

27      Dr Boys, Orthopaedic Surgeon assessed Ms Redzic on behalf of the defendant’s lawyers on 12 December 2014. He obtained a history that on 23 January 2014 she was carrying a large box downstairs when the box struck some tiles and she fell down approximately 3 stairs to the floor. Ms Redzic told Dr Boys that she was taking antidepressant medication and analgesic medication including daily use of Endone, OxyContin, Panadol Osteo and Valium. Ms Redzic said that she suffers constant right-sided lumbosacral pain extending down the right lower limb to the toes with associated paraesthesia of the right calf and foot. She said she had a sitting tolerance of approximately 20 minutes, a static standing tolerance of 10 to 15 minutes and a walking tolerance of 30 to 40 minutes. She said that she experiences pain with all activities, if sustained, bending at the waist is limited and she has poor balance. Dr Boys opined that Ms Redzic suffers from a chronic pain disorder and non-verifiable right sciatic complaints, a history of long-standing pain, sciatica, and use of prescription narcotic medication since 2010. Dr Boys also reported that no specific abnormality is noted on physical examination other than pain behaviours and inappropriate physical signs indicate magnified illness behaviour. He also noted that symptoms described by her in the period after 23 January 2014, would appear to be compatible to those experienced prior to that date. In his opinion, the fall is not a significant contributing factor to her ongoing pain and perceptions of disability and that she has had a long-standing chronic pain syndrome since 2010.

28      Mr O’Brien, Orthopaedic Surgeon assessed Ms Redzic on behalf of her lawyers on 25 February 2015. She told him that her initial low back injury occurred in approximately May 2012 when she was helping her mother and they slipped with her mother landing on top of her. She told him that on 23 January 2014, she was asked to clean out the stockroom and was carrying a rather high box which prevented her from adequately seeing in front of her. She told him that as she was coming downstairs, the box apparently struck a stack of ceramic tiles which was partially obstructing a doorway causing her to lose balance and fall forward landing on her right side. Mr O’Brien noted on physical examination that Ms Redzic presented with a rather bizarre posture, with her trunk tilted to the right, with some trunk rotation with the right leg held with the knee in extension. He noted that she then proceeded to walk with a stiff right leg gait and even when seated she had a tilt of her trunk to the right side. Mr O’Brien noted that the MRI scans in March and September 2014 were normal and that her current physical signs were entirely subjective and quite variable and did not confirm any specific underlying pathology in the lumbar spine. He concluded that she presented with chronic non-specific back and right leg pain which is influenced by psychosocial factors.

29      Dr Sheehan

, Psychiatrist, assessed Ms Redzic on 24 November 2014 for her lawyers. He obtained a history from her that on 23 January 2014 she was asked to clean out a storeroom, which involved moving boxes of shower fittings and heavy tools. She told him that she had informed her employer that she had a pre-existing back problem but “he didn’t care much” and also said; “I had no choice, I had to start cleaning”. Ms Redzic told

Dr Sheehan that she had to lift a “big black box of rubbish” and take it downstairs and when doing this she knocked some tiles off a box and fell over onto her right side and experienced an immediate spasm in her lower back and couldn’t move. He diagnosed that she suffers from a depressive state and will require ongoing treatment.

Conclusion

30      I did not find Ms Redzic to be a credible witness. I have reached this conclusion for a number of reasons:

·     The medical evidence reveals that Ms Redzic has had a long and continuous history of back pain and associated symptoms since 2005. She has attended Dr Fixler on regular occasions since that date with complaints relating to; back, shoulder, neck and right leg pain, dizziness, nauseous, headaches/migraines, lethargy, vertigo, insomnia, pelvic and groin pain, left ulnar neuritis, rib pain and anxiety/depression. As a result of these complaints she has been prescribed copious amounts of medication. The general consensus of medical opinion is that she has a chronic and long standing pain syndrome and is over reliant on medication. I do not accept her evidence that she ceased taking medication prior to commencing employment with the defendant. Throughout 2013 she was prescribed regular and high doses of medication to relieve her symptoms of pain including on 24 and 25 October, six weeks before commencing employment. Her evidence that she was prescribed the medication but did not consume it is not plausible based on her medical history of dependence. She also attended on 17 December for repeat prescriptions of Panadeine Forte, Panadol Osteo, Endone, Murelax and Valium and on 18 December, for Naprosyn, as a result of complaints of severe migraines and increasing backache, only one week after commencing employment. It is probable that her statement to Ms Davey on 22 January that she felt “spaced out” was an accurate self-assessment based on and caused by her medication intake. Her statement to the defendant at her pre-employment interview that she had “recovered completely” from her prior back problem and to the court that her back condition had “almost resolved” when she commenced employment is not accepted by me as being truthful. The medical records indicate otherwise.

·     Ms Redzic gave different versions as to the mechanism of injury on 23 January 2014. She testified that she injured her back and right leg when she fell as a consequence of tripping on the box of tiles at the base of the stairwell. The history given to Dr Fixler, either on 23 January or 13 April, was that she sustained injury as a consequence of heavy lifting and bending and as a consequence of tripping over tiles at the bottom of the steps. However, when giving evidence she denied experiencing back pain on 23 January prior to the alleged fall. When questioned further she then asserted that it was the heavy lifting of the plastic tub that made her fall because; “it aggravated her back, whilst wearing high heels”. Ms Redzic told Dr Clayton Thomas, Dr Boys and Mr O’Brien that she fell as a result of the box she was carrying hitting the tiles. She told Mr Scott she fell as a result of tripping over a tile at the bottom of the steps and told Dr Sheehan that whilst lifting a box of rubbish she knocked some tiles off a box and fell over.

·     I found Ms Davey to be a truthful and credible witness.

·     I accept the evidence of Ms Davey and Mr James that the defendant does not stock tiles one metre in length as described by Ms Redzic.

·     I accept the evidence of Ms Davey that she did not place the box of tiles/tiles at the base of the stairwell.

·     I accept the evidence of Ms Davey that she did not see or hear Ms Redzic fall and did not approach her whilst she was on the ground and suggest to her that she clean up the mess.

·     I do not accept the evidence of Ms Redzic that she reported the alleged incident to Ms Staynor immediately following the fall as asserted by her. The telephone records do not substantiate her evidence. Furthermore, I do not accept that she called her mother to inform her of the incident whilst lying on the floor as she told Dr Clayton Thomas.

·     I accept as truthful the evidence of Ms Fieldhouse that Ms Redzic did inform her that she had injured her back at a restaurant before commencing employment with the defendant.

·     I find that Ms Redzic did not give a fall and accurate account of her medical history to all of her treating doctors or the medico-legal experts. In particular, I do not accept her evidence that she suffered a “stroke” in 2008 as she reported to Mr O’Brien on the basis that medical records were not tendered to substantiate her assertion and Dr Fixler, her treating general practitioner, was unaware of it. I have also noted that she did not inform Dr Fixler of the incident where her mother fell on her on 18 July 2012. She also failed to give Dr Clayton Thomas a full history of her prior back problems apart from a fall in 2010 for which she told him she had made a good recovery.

31      For the above reasons, I did not find Ms Redzic to be a credible witness and I find that the alleged fall on 23 January 2014, did not in fact occur.

32      Accordingly, I find that Ms Redzic did not sustain an injury which arose out of or in the course of her employment with the defendant. The proceeding will be dismissed.