Samoiloff v Grandiflora Nurseries Pty Ltd - [2018] VMC 4

IN THE MAGISTRATES’ COURT OF VICTORIA

WORKCOVER DIVISON G11612269

BETWEEN:

MARGARET SAMOILOFF Plaintiff

-and -

GRANDIFLORA NURSERIES PTY LTD

T/A SELECT FLOWERS Defendant

MAGISTRATE: Ginnane

PLACE HEARD: Melbourne

DATE HEARD: 16 & 17 April 2018

DATE OF DECISION: 20 April 2018

CASE MAY BE CITED AS: Samoiloff v Grandiflora Nurseries Pty Ltd

MEDIUM NEUTRAL CITATION: [2018] VMC004

REASONS FOR DECISION

APPEARANCES  Counsel   Solicitors
For the Plaintiff  Mr Coote  Slater & Gordon
For the Defendant  Ms Tait   Russell Kennedy

Catchwords: Workplace Injury Rehabilitation and Compensation Act 2013 – rejected claims - aggravation type injury - acute disc prolapse at home following day’s work - no prior work episodes – previous surgical intervention – whether prolapse caused by constitutional condition – whether work a significant contributing factor to injury – long period of employment – largely manual work – ongoing episodes of lifting – discussion of sufficiency of evidence – uncertain evidence of weights - medical reports tendered – whether plaintiff positively discharged burden of proof – unsatisfactory history in medical reports – lack of factual analysis of work duties to prolapse - applications for review dismissed

HIS HONOUR

The plaintiff is 56 years of age having been born on 12 February 1962. Her work history has been one of working in nurseries and as a bar maid. In July 1999 she commenced employment with the defendant. The plaintiff has a history of having attended Mr Arnold, Chiropractor in years past, and as well, about 11 years ago, the plaintiff underwent low back surgery.
The defendant is a wholesaler of flowers to markets and businesses.
The plaintiff’s work was almost entirely physical work and principally involved the picking and packing of various orders for supply of flowers. There was a period of some office and administrative work but it was not the norm.
The plaintiff was a fulltime employee and her usual hours of work were from 7.30 am to 4.00pm. She worked a variable fortnight of hours and I was told this consisted of 40 hours one week and 45 hours the other. As well, on every second Saturday and Tuesday the plaintiff attended the Footscray Market with deliveries of flowers. She would arrive at the defendant at 1.00am and then drive to the market arriving at 1.30 am and leave at 10.00am.
The duties was to pick and pack orders of roses for florists and wholesalers. The flowers were stored in a refrigerated cool room at the defendant. The roses when picked were placed in one or other of two different sized buckets that contained water. The plaintiff said the buckets were filed either a ¼ way up or 1/2way up the buckets. The plaintiff said she could not estimate their weight. She said some were heavy but she did not have a scale to know their weight. The buckets of roses were placed on wheeled metal trolleys containing one or two or three shelves and manoeuvred by the plaintiff onto the tailgate of a truck which she then drove to the Footscray Market for delivery. The plaintiff said that invariably undertook the trolley work alone. The trolleys accommodated 16 big buckets or 30 small buckets. Mr Elliot, the General Manager of the defendant testified. He said the trucks were not always filled to capacity.
Some doctors have been told by the solicitors for both parties of different estimates of weights and this varied between up to 20 kgs based on the plaintiff solicitor’s instructions whereas Mr Elliot suggested 5 kgs and possibly more but he did not think 20 kgs was a realistic estimate. The fact of the matter is that no one gave corroborative evidence of their various weights. I am unable to make any finding on the weight of the filled buckets. I am satisfied however that on some days the plaintiff could be required to repeat the exercise of lifting up to 100 buckets containing up to 10 bunches of flowers with water of different levels but in all probability filled at least a ¼ or half way.
The plaintiff said she worked at the defendant with a team of between 3 and 6 people.
The plaintiff said she would unload the truck on arrival at the Footscray Market sometimes alone and sometimes with the assistance of another worker. She said that the tail gate of the truck did not always allow a seamless transfer of the flower filled buckets stacked on the metal shelves and on some occasions the trolleys needed to be pushed by her on or off a truck at an angle.

3 August 2015

The plaintiff gave evidence about events that occurred on Monday 3 August 2015 both at work and at home. She said she had picked orders at work in preparation for collecting and driving to the Footscray Market the next day. She said she finished work at about 4.00pm and went home. She said she fed her animals, made some tea, watched some television and went to bed early due to her need to rise early to drive to the defendant and then travel in the truck to the market. She said she woke and had a shower and whilst showering put her head back to wash her hair and suffered severe pain at the back of her head all the way up the top of her skull. She said she tried to lie down to ease the pain. She managed to telephone her boss and told him in tears that she could not come to work. He told her to ring an ambulance. She did. An ambulance attended. She was taken to the Casey Hospital that morning. She was given painkillers by the ambulance officers. She underwent a brain scan at the hospital and at about 4.00am was released.
The plaintiff on 5 August 2015 attended her general practitioner, Dr Albir.
The plaintiff described the pain she experienced in her head whilst in the shower that morning as more severe pain than she had previously encountered.
The plaintiff took 2 weeks annual leave between in order to try and right herself. The pain did not go away entirely and she experienced some numbness in her left hand and some blurred vision.
The plaintiff said she had some scans and x-rays and was referred to a physiotherapist.
The plaintiff saw her then Dr Albir at the Duff Street Medical Clinic on 19 August 2015. He gave her a Medical Certificate for light duties. She returned to work on 20 August 2015. She said she was put straight back to normal duties. She gave her employer her doctor’s certificate letter but she could not be accommodated with light duties. She was sent home. On the 21 August 2015 she returned to work. She said she did not do well. A redundancy was proposed. She took a period of additional leave to consider her plight. On 14 September 2015 the defendant company terminated the plaintiff’s employment by reason of redundancy and her employment ended immediately.
The plaintiff filed a worker’s injury claim form dated 9 October 2015. It was based on injury that occurred on 4 August 2015 but referred to her work duties of carrying buckets of roses with water with up to 100 buckets a day being lifted as the mechanism of injury. That claim was rejected by the defendant’s authorised insurer on 30 October 2015 and it based its decision on the injury having occurred at home and of the injury being the result of “multi-level degenerative disease”.
A further claim form dated 11 February 2016 that relied on the injury having occurred “over period of time of employment”. It was also rejected by the defendant’s authorised insurer by letter dated 8 March 2016. The rejection relied on the determination that the injury occurred at home and as well that the claim was not made in accordance with periods of time required and contemplated by the Workplace Injury Rehabilitation and Compensation Act 2013 (the WIRCA). Sensibly, at the hearing of the proceeding, counsel for the defendant did not pursue that aspect of the rejection. I note in passing that I am not of course undertaking a review of the decisions made by the authorised insurer but make my own decision on the evidence before me seized of all the powers under the WIRCA.
In February 2016 plaintiff was provided a clearance for restricted work. She said she commenced looking for employment. She found some work in a nursery in February 2016 but it lasted only 3 days because of her neck condition. In June/July 2016 she obtained another job undertaking packing work but hurt her neck. She is now employed at the Tooradin Sports Club performing 25 or 30 hours a week on a casual basis and she said it is employment she is able to undertake within her restrictions. She said she still gets headache pain in her neck if she “overdoes it at work”.
Under cross-examination the plaintiff accepted that she had not experienced neck pain at work on 3 August 2015 but that she had experienced a headache.
The plaintiff was questioned about her work duties and could not say if the large bucket filled with water weighed between 5 and 7 kgs. She disagreed that there are always 2 people to assist her at the Saturday Market. She said she had worked alone at the Saturday Market “for a year or 2 or possibly 3”.
The plaintiff said on a given day she might make between 16 or 32 trips back and forth from the refrigerated cool room to the truck with flower filled buckets on shelves but this “depended”.
The plaintiff was cross-examined about the content of the ambulance records of 4 August 2015 that recorded that she had “twisted her neck awkwardly” on the preceding Saturday but the pain had gone away however returned in the shower. The plaintiff could not recall giving such an account to the ambulance officers.
The plaintiff was also taken to the Casey Hospital record of 4 August 2015 that referred to the Saturday event that was unrelated to work and “Tonight same occurrence when getting in shower”.
The plaintiff said that although she had seen Mr Arnold, a chiropractor in times past for pains that followed on from a hard day’s work, she had not seen him for treatment following the incident in the shower on 4 August 2015.
The plaintiff said she had coped well with her work prior to the incident at home on 4 August 2015.
The plaintiff explained that she did not make an entry in the register of injuries maintained by her employer because initially she was confused if the injury was work related because it did not occur at work but had come on at home.

The medical evidence

Both parties were content to rely on the tender of medical material. The medical evidence was not particularly forensic but of course it falls to the plaintiff to discharge her evidentiary burden in proving a work injury. This not a claim of a type in which the defendant carries any evidentiary or legal burden.
The medical records produced by the plaintiff identifies that the first attendance by the plaintiff on her GP Dr Albir following on from the shower incident was on 5 August 2015 and he certified her unfit for work and continued to do so by way of subsequent medical certificates and as I have already mentioned. On 19 August 2015, Dr Albir certified the plaintiff unfit for heavy lifting above 5 kgs and bending work from 20 August 2015. He noted that the plaintiff was under his care for medical reasons being that “She is suffering from sever degenerative changes in her cervical spine & had history of again laminectomy operation in lumbar spine before”.
The plaintiff said she was dissatisfied with her treatment from Dr Albir who, as well, told her that her that he did not want anything to do with WorkCover. She said it was necessary for her to find a new GP.
Dr Albir has not provided a report to the court and there is no clinical record. The defendant asked me to draw an adverse inference in accordance with the principles in Jones v Dunkel (1959) 101 CLR 298. I do not do so. I am satisfied that it is explicable that there is no report history from Dr Albir based on his attitude expressed to the plaintiff about “workcover”. However, explicable as it may be, it leaves a very substantial gap in the plaintiff’s history.
The plaintiff’s current GP Dr Belinda Zhou issued a Workcover Certificate of Capacity dated 8 October2015 for the plaintiff as a result of suffering neck pain, “caused by heavy daily lifting at work” and diagnosing a “C6/7 cervical disc prolapse with nerve root compression”. The plaintiff was certified unfit for duty from 8 October 2015 until 4 November 2015.
Dr Zhou in a report dated 10 November 2016 wrote that she first saw the plaintiff on 31 August 2012 when she presented with headache, neck pain and shoulder pain which she had experienced for a month and that was treated with heavy painkillers. She wrote that the plaintiff’s job is related to flowers sales and she was required to prepare up to 100 orders per day which involved lifting buckets weighing up to 20 kg repetitively as well as driving a truck. She referred to the events of 3 August 2015 reporting that the plaintiff “was working as usual, towards the end of her shift, she started to develop severe neck pain. Due to the severe pain, she attended the Casey Hospital Emergency Department.” The report makes no reference to the shower incident at all. As well the reference to the severe pain developing towards the end of the plaintiff’s shift is contrary to the plaintiff’s oral evidence. She wrote that in her opinion the plaintiff’s previous job with the defendant “is one of the main contributing factors to her neck injury and ongoing capacity.” I am not satisfied that this is a persuasive account given by Dr Zhou by way of a medical conclusion referable to the preceding factual account and referred to in her report or based on my own findings of fact.
There is also according to the evidence of the plaintiff a reasonable period of years over which she underwent treatment from Mr Arnold, the chiropractor, but here as with Dr Albir, there is no report or notes of treatment from him. Mr Arnold by letter dated 26 August 2015 wrote to Dr Zhou. He wrote that the plaintiff had been seeing him for chiropractic care for many years. He suggested she obtain a neurosurgical opinion and he recommended Mr D’Urso.
The plaintiff saw Mr D’Urso who certified her unfit for work from Thursday, 1 October 2015 to Friday, 27 November 2015 inclusive. He performed a C6-7 anterior cervical discectomy, subtotal vertebrectomy and rhizolysis on 20 October 2015 at the Epworth Private Hospital.
In a letter dated 30 November 2015 to Dr Zhou, Mr D’Urso wrote that he had reviewed the plaintiff in his rooms on 27 November 2015, some 6 weeks since he performed surgery. He noted he was pleased with the plaintiff’s progress.
On 27 January 2016 Mr D’Urso provided a report to the Accident Compensation Conciliation Service. He noted having first seen the plaintiff on 1 October 2015. He gave a history of the plaintiff’s presentation and related the events of 3 August 2015. His history included the plaintiff being required “to prepare up to 100 orders per day to go to market. This involved lifting buckets weighing approximately 20 kg in weight repetitively as well as driving a truck and attending to office duties”. He wrote as well that at the end of the shift the plaintiff “started to develop increasingly severe neck pain and leftbrachialgic symptoms. The symptoms were so severe, she attended the Casey Hospital”. He noted the plaintiff’s history of a lumbar spinal procedure. He said on examination the plaintiff “did have some mild weakness in her left shoulder.” Under investigations he referred to the MRI scan from 10 August 2015 which demonstrated a broad-based disc and osteophyte complex at C6/7 causing spinal cord and exceeding C7 nerve root compression whereas at other levels the changes were relatively mild. He noted the plaintiff’s admission to Epworth Private Hospital on 20 October 2015 and surgery. He said at the time of surgery substantial disc and osteophyte complex was noted causing nerve root compression. He noted her post-operative position being satisfactory. He said the plaintiff post operatively had made a “very good recovery”. He said her headaches had “largely settled”. Her cervical range of movement was “close to normal” she was only taking painkillers on bad days and this was not every day. An x-ray 30 November 2015 was satisfactory.
In dealing with the connection between employment and condition Mr D’Urso wrote:

“Margaret stated that on 3 August 2015 whilst working in her duties at the Grand Flora Facility, she developed increasingly severe neck pain and left brachialgic symptoms. It would appear that with heavy physical work performed in a repetitive fashion at that time (emphasis added) and not only in the 20 years before this workplace injury resulting in her requirement for surgery and current disability in incapacity.”

In a report dated 24 February 2017 Mr D’Urso wrote:

“On 3 August 2015, Margaret completed one of her days at the Grand Flora facility. Her job was related to flower sales. She was required to prepare 100 per day go to market. This involved lifting buckets weighing approximately 20 kg in weight (emphasis added) repetitively as well as driving a truck and attending to office duties.
At the end of the shift, (emphasis added) Margaret started to develop increasingly severe neck pain and left brachialgic symptoms. The symptoms were so severe, she attended the Casey Hospital.”

There was no connection with work attributed by Mr D’Urso in this report dated 24 February 2017. What he wrote was: “It would appear that Margaret was performing quite heavy repetitive physical manual employment prior to her surgical intervention and it would be best that she avoid this type of employment in the future.”
However, in a subsequent report dated 25 September 2017 Mr D’Urso wrote:

“My opinion has expressed in the report dated 24^th February, 2017 remains unaltered. Specifically, it would appear that workplace activity has led to a precipitation of symptoms and remains a materially contributing factor to subsequent disability and the requirement for surgical intervention”.

There was no such attribution of cause given in the report by Mr D’Urso of 24 February 2017 which no doubt prompted the solicitors for the plaintiff to seek such an opinion from him which Mr D’Urso proffered in the report dated 25 September 2017.
In a report dated 11 October 2017 to the plaintiff’s solicitors, Dr Aliashkevich, Neurosurgeon and Spinal Surgeon wrote:

“Your 54-year-old client attended my appointment in Frankston consulting rooms for the purpose of this report today. She provided history of her employment as a salesperson with Grand Flora Rose Farm around 1999. She indicated that her job involved regular truck driving, sales, packing and lifting buckets with flowers half filled with water, up to 50 times a day, depending on how busy the day was. She was working on a full-time basis and had a dude and night shifts. She did not have any problems with her neck prior to commencing her employment.
On around 3 August 2015, after doing a day shifted prior to starting a night shift, she went home to have a shower and experienced sharp onset of pain in her neck, headache, pain in her left arm. It all happened at around 12:30 AM and she called her boss saying that she would not be able to attend the night shift. She called an ambulance and was brought to the emergency department of the Casey Hospital. She underwent CT scan of the brain which was unremarkable and was offered lumbar puncture to rely possible subarachnoid haemorrhage. Margaret declined a lumbar puncture and was given pain medications.
…
Margaret later saw another GP …and was referred to Mr Paul D’Urso, Neurosurgeon. Her MRI scan performed on 10 August 2015 demonstrated multilevel degenerative facetal and uncovertebral joint changes, most severe at C6/7 where there was narrowing of the spinal canal and neuroforaminal greater on the left-hand side. Compression and irritation of the left C7 nerve root was reported. Mr D’Urso recommended surgery and on 20 October 2015, Margaret underwent surgery…
…
Your client’s condition was consistent with aggravation of pre-existing degenerative disease in the cervical spine due to her work-related activities.

In a supplementary report dated 15 October 2017 to the plaintiff’s solicitors Dr Aliashkevich wrote:

“The description of your clients full-time work duties since around 1999 involving work in the fridges at the nursery with a temperature between 4 and 8°C, dealing with 9-10 kg heavy buckets of flowers and loading the trolleys on a regular and a repetitive basis corresponds to her employment history provided in my original report. The provided photographs reflect the same history. Hence, my opinion regarding the relationship between your client’s employment and her neck injury/incapacity for work remains the same. Having regard to Margaret’s work history, clinical presentation, outcome of her cervical surgery on 20 October 2015 and results of her radiological investigations, I consider her employment is a significant contributing factor to aggravation of pre-existing degenerative disease in the cervical spine.”

Associate Professor Graham Thompson, General Surgeon assessed the plaintiff for medicolegal purposes at the request of the defendant on 19 October 2015 and provided a report to the defendant insurers. He reported that the plaintiff had been employed for 19 years by the defendant and that for the last 9 years she had been involved in preparing flowers for distribution and purchasing flowers from the wholesale market Footscray. He said at times she would be working in a refrigerated area with temperatures ranging between 5 degrees Celsius and 18 degrees Celsius. He noted that within the refrigerated area should work in a trolley preparing orders of this would require lifting buckets of flowers which when completed placing these orders on shelves and under the trolley. He referred to the plaintiff’s history of presenting and noted that at 12:30 am on 4 August 2015 whilst showering prior to leaving home to attend the market she developed severe pain in the neck which radiated in the midline to the occiput. She rated her pain as 10/10. She was taken by ambulance to Casey Hospital where a scan of the brain occurred due to concern that there had been a cerebral event however the scan was normal and she was discharged to come home but under the care of her general practitioner. He wrote that the plaintiff then became aware of pain in the left upper limb numbness in the third, fourth and fifth fingers. Following consulting her general practitioner imaging by way of x-ray and MRI occurred.
He noted that the severity of the plaintiff’s symptoms were such that she was initially off work for 2 weeks (this was pursuant to ordinary certificates) after which she returned for a short period of 3 days, but because of pain and not coping, her GP advised light duties. She was then slated for redundancy, took further time by way of leave to consider her position and subsequently was rendered redundant.
He noted that the plaintiff’s initial treatment by her GP included an analgesic injection for pain relief. She subsequently has been prescribed a variety of analgesics. She had physiotherapy but it provided no benefit. Mr Thompson referred to the advice the plaintiff obtained from her chiropractor and her eventual referral to a neurosurgeon, Mr D’Urso.
Associate Professor Thompson noted that since the plaintiff ceased work she reported a slight improvement but a further exacerbation some few weeks after the initial incident when once again she called an ambulance but she was not taken to hospital. I heard no evidence about this episode. He referred to the then predominant symptoms as pain in the upper cervical region radiating to the left upper limb. He referred to associated paraesthesia in the left-hand and to a lesser extent to the right. He said the plaintiff is unable to turn her neck to the left without pain.
He referred to the lumbar surgery some 9 years before the date of his report of a disc prolapse. He noted that the plaintiff had a good result from surgery and is asymptomatic. He noted that over the last 2 years the plaintiff has had a history of neck pain and headache without associated upper limb symptoms and that she had said that the symptoms were precipitated by being busy at work. He said in response to these pains the plaintiff sought chiropractic treatment.
He referred to the x-ray of the cervical performed on 5 August 2015 revealing a severe disk narrowing of the C6/7 level and to a lesser extent the C5/6 level. Bilateral foraminal stenosis, most severe at the C6/ C7 was noted. An MRI of the cervical spine performed on 10 August 2015 that showed diffuse degenerative changes in the cervical spine. The most significant of which were noted the C6/7 level where there was a desiccation of the disc and narrowing of the neural foramina that was greater on the left side with likely compression of the left C7 nerve root. Further he noted there was a significant narrowing of the spinal canal at this level and a flattening of the spinal cord.
Associate Professor Thompson summarised his findings in his report. He noted that the plaintiff had a background of neck pain for at least 2 years and developed severe pain in the neck on 4 August 2014. He noted this occurred when the plaintiff was showering preparatory to work. He noted she continues to suffer pain in the neck with some symptoms indicating nerve root irritation on the left side with clinical examination revealing diminished movements in the neck. He noted as well that although there are sensory changes and increased muscle power in the left upper limb such changes do follow the distribution of a single nerve root in particular, C7. He referred to the imaging evidence of multilevel degenerative changes in the cervical spine most severe at C6/7 where there is spinal canal and foraminal stenosis with likely compression and irritation of C7 on the left.
Associate Professor Thompson diagnosed a degenerative disease of the cervical spine, maximal in this C5/6 and C6/7 spaces. At the C6/7 level there is spinal canal stenosis in addition to bilateral foraminal stenosis and an MRI is identified likely compression and irritation of the left C7 nerve root.
As to the issue of causation, Associate Professor Thompson opined, that the plaintiff’s multilevel degenerative disease of the cervical spine is “constitutional, rather than related to an injury.” He said that the plaintiff presented with a degenerative disease of the cervical spine and from the history provided, he expressed the opinion that an acute disc protrusion occurred on 4 August 2015 for which there was no precipitating event to account for the exacerbation, being one which did not occur at work. He noted that “although the worker indicated that over the last 2 years she would at times experienced pain in the course of her work, there was no particular movements or duties precipitating these episodes, other than being busy.” For this reason, and based on this history, Associate Professor Thompson wrote that in his opinion, the acute deterioration that occurred at home was not contributed to by the plaintiff’s employment.
The plaintiff was also seen by Dr Siu, Neurosurgeon, at the request of the defendant’s solicitors. Mr Siu examined the plaintiff on 5 December 2016. He produced a written report. In it he recounted the history he had of the circumstances that occurred to the plaintiff including that on 3 August 2015 whilst at work the plaintiff having experienced headache. He made no point of the headache as a precursor or predictor of the subsequent acute episode. He noted that the plaintiff was getting ready to come to work and was showering when “she had a sudden onset of severe pain in the back of the neck”. He recounted her attendance on her GP together with x-ray and the provision of analgesics. He referred as well to the MRI confirming the C6/7 disc problem. Mr Siu noted that as a matter of importance to him, that the plaintiff “has been attending a chiropractor”. He reported the plaintiff telling him in response to his question that she had attended the chiropractor “because of pain in her neck”.
Mr Siu noted that the plaintiff came to the attention of Mr D’Urso who reviewed her radiology and recommended surgery which she underwent at the Epworth Hospital. He said in consequence the plaintiff said her headache “was better. The numbness got better. The pins and needles in the left upper limbs felt better.” Mr Siu wrote “Surprisingly, she had neck pain but not much pain radiating into the upper limbs. According to her, the neck pain got about 60% better.”
Mr Siu wrote that the shower incident has “certainly aggravated her pre-existing cervical spondylosis” but that he did not believe it is work-related.
Mr Siu provided a second written report dated 2 November 2017 based upon a further examination of the plaintiff. In relation to background information he noted that the employer had indicated that the weight of a bucket half-filled with water was approximately 5 kg and not 9 kg and that the 10 bunches of roses per bucket of between 60 and 70 cm weighed about 2 kg and not 9 to 10 kg. Mr Siu said that the plaintiff had no idea of the respective weights, something consistent with plaintiff’s evidence to me. Mr Siu’s report replicated the history that he had previously recorded in his first report. Mr Siu noted that prior to seeing Mr D’Urso the plaintiff had consulted Mr Arnold chiropractor whom she had been seeing on a regular basis because of pain in her lower back. He noted that the chiropractor suggested she should see a specialist that led to her coming under the care of Mr D’Urso. It was following her attendance on Mr D’Urso that he advised surgery which she underwent. Mr Siu emphasised that the plaintiff’s main symptom prior to surgery was pain in the neck and not much pain in the upper extremities although she had some numbness in her hand. Mr Siu wrote that “it is surprising that post—surgery she felt much better and the neck pain was a whole lot better (60%). The numbness also improved. He said he enquired specifically of the plaintiff who insisted that “in her mind… The neck pain was the main problem with not much arm pain”.
Mr Siu wrote that the clinical findings remained unaltered from his initial report. He said there was no convincing evidence that there was nerve root compression prior to surgery. Mr Siu remained of the opinion that the incident on 4 August 2015, washing her hair, throwing her head back whilst washing her hair, caused an aggravation of cervical spondylosis which is not work-related.
Mr Siu was asked to comment, if thought pertinent, about the descriptions of information relating to the movement of trolleys and the weight of the buckets. He wrote in his report that the plaintiff’s symptoms “are due to aggravation of pre-existing cervical spondylosis. He said:

“The fact that the employer can supply information that the weight of the bucket is less than what is alleged, does not alter my opinion.
If anything, the impression is that the bucket was not as heavy has considered and therefore less likely to have been responsible for her symptoms. Her symptoms are due to aggravation of pre-existing cervical spondylosis. In the activities of daily living, as a housewife only, it is entirely possible that it disc prolapse could have been caused by throwing ahead back in the shower. Absent the employment this may indeed occur, and it is difficult to ascribe aggravation of cervical spondylosis by carrying heavy weight (if under 7 kg is considered heavy). It may be responsible for a shoulder injury but the worker has no complaints shoulder pathology”.

Mr Siu maintained that did not believe the plaintiff’s work duties aggravated her pre-existing cervical spondylosis.

Significant contributing factor

This proceeding is governed by the WIRCA.
Clause 25 in Part 3 of Schedule 1 of the WIRCA states:

“In determining whether a worker’s employment was a significant contributing factor to an injury, the following must be taken into account-
(a)   the duration of the worker’s current employment;
(b)   the nature of the work performed;
(c)    the particular tasks the employment;
(d)   the probable development of the injury occurring if that employment did not taken place;
(e)    the existence of any hereditary risks;
(f)     the life style of the worker;
(g)    the activities of the worker outside the workplace.”

The words “contributing factor” recognises that an injury may be caused by more than one factor. The inclusion of “significant” in its adjectival form means that where there is more than one factor involved and one of them is the worker’s employment then its importance must be assessed in order to determine if it is a significant contributing factor or not. There may be also more than one factor which is significant and of course one factor may be more significant than another but this will not diminish the question which is, whether employment is a significant contributing factor to the causation of injury. It may be of lesser significance than another but nonetheless satisfy the description of “significant”.
In Meddis v. Victorian WorkCover Authority (County Court, judgment 24 April 1996) Judge Rendit said this:

“I consider a broad meaning can only be given to the words ‘significant contributing factor’ as the facts of each case must be looked at in the light of its own circumstances and an assessment made factually whether the employment was a significant contributing factor to the happening of the injury. In this regard, I consider it means more than de minimis but less than a major or a dominant factor. Indeed, one can have several significant contributing factors which are unrelated but which play their part in the occurrence of the injury. I consider that it is basically a question of fact”.

In Allman v. Major Finance and Engineering Pty Ltd (County Court, judgment 14 March 1997) Judge Strong described “significant’ as meaning “of considerable amount or effect”. At a practical, as distinct from conceptual level, the distinction between an employment contribution exceeding de minimis and an employment contribution of considerable amount or effect may be more apparent than real.
The plaintiff’s two claims have the combined effect of pleading that she sustained the injury on 4 August 2015 as a result of her employment. The claimed injury in this case is not the episode at home on 4 August 2015 (that being the occasion that resulted in incapacity and hence a prima facie entitlement to compensation under the WIRCA) but rather the relevant consideration is whether the plaintiff’s employment “was a significant contributing factor to the injury”, that is by way of aggravation of the pre-existing injury or disease, namely the degenerative changes to the neck.

65.In Hegedis v Carlton and United Breweries Ltd (2000) 4 VR 296 the worker was injured whilst peeling an apple during a paid break. Ashley J held that employment was a significant contributing factor to the worker’s injury and made the following observation at [51]:
…None the less, save in pretty exceptional cases the causal requirement imported by the phrase “arising out of employment” and that imported by the requirement that employment be a significant contributing factor to injury cover the same ground.

66.Ashley J’s decision concerning the “significant contributing factor” test was upheld on appeal[1] and later endorsed by the Victorian Court of Appeal in Zlateska v Consolidated Cleaning Services Pty Ltd [2006] VSCA 141[2] In doing so the Court observed (Maxwell ACJ, Eames and Redlich JJ) at [80]:
[1] Carlton and United Breweries & Anor v Hegedis [2002] VSCA 61.
If it can be shown that employment was a significant contributing factor, that will usually be sufficient to show that the injury was one ‘arising out of the employment’…If there is a distinction between the two concepts, it is more theoretical than real in such circumstances…

67.The following dicta of Kitto J in Federal Broom Company Pty Limited v Semlitch (1964) 110 CLR 626 at 632-633 is pertinent:
The second ground treats the word “employment” in the definition as something distinct both from the fact of the employment of the worker and from any consequence of the employment, and confines it (if I understand the notion correctly) to the inherent features or essential incidents of the employment, to the exclusion of occurrences in the course of the work. With all respect, I think that to take this view is to refine upon the word too much and by so doing to miss what the definition is manifestly intending to say. Where it is possible to identify as a contributing factor to the aggravation, acceleration, exacerbation or deterioration of a disease some incident or state of affairs to which the worker was exposed in the performance of his duties and to which he would not otherwise have been exposed, I see no misuse of English in condensing the statement of the fact by saying simply that the employment was a contributing factor to the aggravation etc. It is in that sense that I should understand the language of the definition.

68.The appellant also referred to the following dicta of Windeyer J in Semlitch at [641]:
I pass then to the next, and I think more difficult, question, was this aggravation or deterioration contributed to by her employment? This requirement of the Act is not satisfied by showing only that a worker suffering from some disease would or might have suffered less severely if he had not been employed at all. When the Act speaks of “the employment” as a contributing factor it refers not to the fact of being employed, but to what the worker in fact does in his employment. The contributing factor must in my opinion be either some event or occurrence in the course of the employment or some characteristic of the work performed or the conditions in which it was performed.

In Ogden Industries Pty Ltd v Lucas (1967) 116 CLR 537 at 593 Windeyer J stated:

“…aggravation’ means, I think, that an existing disease has been made worse, not that it simply has become worse…”

Here the incident in the shower is what occasioned the plaintiff’s incapacity for work and so the question is whether it was an incapacity by way of aggravation of a work injury. The plaintiff had been performing her duties without evident disruption prior to 4 August 2015. I have kept in mind that it is important not to confuse injury with the consequences of injury (see the observations of Ashley J in Grech v Orica [2002] 14 VR 602 at paras [55 – 58]). As his Honour reminded, notions of injury and resultant incapacity are not the same thing. They can arise together at the same time or with some period in between. Also, there may be two or more causes of injuries that may be legally sufficient causes of the same injuries. Here, for example, the plaintiff’s counsel argued that the fact of the plaintiff suffering a constitutional degenerative condition is not to exclude as a likelihood by way of a cause of injury in the guise of aggravation, the relatively benign event of showering of the plaintiff’s hair following a day’s work where there is a history of work comprising the lifting and bending and reaching associated with the picking and packing of flowers and their conveyance on multi shelved wheeled trolleys on and off trucks on market days over many years.
The case proceeded by both counsel on the basis that the injury on 4 August 2015 is an aggravation type injury. The plaintiff contended that the effects of the disease is one precipitated the rupture on 4 August 2015 due to work and should exclude the sudden movement of the head whilst showering as a discrete cause unrelated to employment.

Assessing the evidence

I accept that the plaintiff has been over the lengthy years of her employment with the defendant a dedicated and reliable employee.
At first glance it might seem probable in terms of the plaintiff’s burden of proof that her activities in employment with the defendant performed over many years was a significant contributor to the event on 4 August 2015. However, first impressions can be misleading. In this case I am satisfied they are.

The evidence is that prior to the incident on 4 August 2015 the plaintiff is recorded in both ambulance records and hospital records of suffering from a severe pain incident on the Saturday preceding the shower incident. The plaintiff had no recollection of making such a statement and the plaintiff also said that the pain experienced on 4 August was of a calibre not experienced before. I am satisfied on the balance of probabilities that a previous incident occurred and that it was caused by non-work activity.
The account of the pain that struck the plaintiff in a further domestic setting when she threw her head back when showering on 4 August 2015 occurred a short time after this previous incident.
The account of history furnished to the plaintiff’s doctors of an onset of neck pain on 3 August 2015 at work and towards the end of her shift is at odds with the oral evidence of the plaintiff under cross-examination that she had a headache at work but no neck pain.
The major problems found on surgery by Mr D’Urso speak for themselves.

Schedule 1 WIRCA

In addressing the mandatory factors required to be taken into account by Schedule 1of the WIRCA in considering whether the plaintiff’s work amounted to a significant contributing factor to injury I make the following findings:

·    the duration of the worker’s current employment was lengthy;
·    the nature of the work performed by the plaintiff was physical and manual and there was a significant degree of repetition of some duties associated with the employment especially two trips a week to market and the work preparatory to market days including picking and packing and reaching up to retrieve product without mechanical assistance;
·    The particular tasks of the plaintiff’s employment involved bending, lifting, reaching and leaning together with lifting and carrying buckets of flowers with water and the wheeling of stock laden trolleys on and off trucks. The plaintiff described the work as heavy. The weights she carried was uncertain but likely 5kg and more but how much greater the plaintiff has not established. Mr Elliot, General Manager in his statement produced in evidence and adopted as true by him said relevantly:
“Staff are required to complete the days of work for the following day, however it is not time monitored.
There is no mechanical assistance or equipment available to help workers access awkward/difficult areas. There are no safety steps available to reach the higher shelves.
Margaret always followed applicable instructions when performing her work.
I don’t think she asked for any assistance when performing tasks.
I am in charge of OH&S, everyone is told to let us know of any safety hazards. We have toolbox meetings when required. We do not have a formal Employer manual handling policy. If staff are not able to lift things on their own, they ask for assistance. There is no manual handling training provided to staff.
The lifting of the buckets is continually raised our meeting; we have tried to improve the system of this such as reducing the amount of water of the buckets.
There have modifications to the system of work, by reducing the amount of buckets on the trollies. This wasn’t as a result of the lodged claim; it was also customers could see what was on the trolleys.
I would guess the maximum weight lifted by Margaret was 5 kilos. There is usually 10 bunches of roses in the bucket, and there are ten roses in a bunch. These roses can be 40, 50, 60, and 77 centimetres in length.
The buckets are made from plastic”.

· The probable development of the injury occurring if the employment did not take place is only addressed in any meaningful sense by Mr Siu in that part of his report dated 2 November 2017 in which he wrote as follows:
“Her symptoms are due to aggravation of pre-existing cervical spondylosis. In the activities of daily living, as a housewife only, it is entirely possible that it disc prolapse could have been caused by throwing her head back in the shower. Absent the employment this may indeed occur, and it is difficult to ascribe aggravation of cervical spondylosis by carrying heavy weight (if under 7 kg is considered heavy). It may be responsible for a shoulder injury but the worker has no complaints shoulder pathology”.

The plaintiff relies on the opinions of Dr Aliashkevich, who in his report dated 11 October 2016, wrote relevantly:

“She did not have any problems with her neck prior to commencing her employment.
On around 3 August 2015, after doing a day shift and prior to starting a night shift, she went home to have a shower and experienced sharp onset of pain in her neck, headache, pain in her left arm.
Your client’s condition was consistent with aggravation of pre-existing degenerative disease in the cervical spine due to her work-related activities”.

In his further report dated 15 October 2017 Dr Aliashkevich confirmed his opinion regarding the relationship between the plaintiff’s employment and her neck injury/incapacity for work. He wrote:

“Having regard to Margaret’s work history, clinical presentation outcome of her cervical surgery on 20/10/2015 and results of her radiological investigations, I consider her employment as a significant contributing factor to aggravation of pre-existing degenerative disease in the cervical spine.”

The resolution of the question of cause is not resolved by a mere arithmetic comparison of the number or reports favourable to a work contribution against that number that are to the contrary. Careful consideration of the probative worth of opinions ventured in reports are required and arguably it is made more difficult for a plaintiff in a given case when doctors are not called and questioned about facts underlying expressed opinions. I have found the analysis of the plaintiff’s work activity and her lack of neck symptoms and the occurrence on 4 August 2015 against the background of her constitutional vulnerability overall better explained by the opinion of Mr Siu and of Associate Professor Thompson than by others and that in the evidence of Mr Siu it is the constitutional condition and vulnerability that framed the incident in the shower and that it was not caused by work in the legal sense. I find his opinion is a better explained account than the contrary opinions by those who have reported for the plaintiff and who are silent on the interconnectedness if at all of the pre-existing non-work condition.

·    The existence of any hereditary risks. There is no evidence directed at any risk factor of this type.
·    The life style of the worker was not a matter of evidence to which attention was directed.
·    The activities of the worker outside the workplace was as well not a matter to which attention was directed.

In regard to these last three considerations to which no relevant evidence was addressed, I have previously observed in other decisions, that the absence of evidence relevant to them should not be thought to always disadvantage a plaintiff but rather the absence of evidence pertinent to any one of them may in fact point more probably in the direction of a workers’ employment discharging the test of a significant contributing factor to injury. However, on this occasion, the absence of relevant evidence has not between sufficient to establish the plaintiff’s claims.

Proof

It is not sufficient that where the evidence of the plaintiff and the evidence of the defendant are equally capable of explaining an occurrence that a plaintiff will have discharged her burden of proof on the balance of probabilities. The beneficial nature of the compensation scheme reflected in the WIRCA cannot fill an evidentiary gap. This is not a case in which I find the evidence evenly balanced. I am positively satisfied that the plaintiff has not discharged her burden of proof. I am instead satisfied that the evidence adduced by the defendant more probably leads me to be satisfied that the plaintiff has not suffered a work injury.

Conclusion

For the reasons expressed, the plaintiff’s proceeding is dismissed.