Tuimaseve v Wesfarmers Limited - [2016] VMC 15

IN THE MAGISTRATES’ COURT OF VICTORIA

AT MELBOURNE

WORKCOVER DIVISION F12340804

BETWEEN:

FIAESE TUIMASEVE Plaintiff

-and-

WESFARMERS LIMITED Defendant

MAGISTRATE: Ginnane

DATE OF DECISION: 7 September 2016

WHERE HEARD: Melbourne

MEDIUM NEUTRAL CITATION: [2016] VMC015

APPEARANCES COUNSEL SOLICITORS

For the Plaintiff Ms J Frederico Maurice Blackburn Lawyers

For the Defendant Mr McKenzie Wisewould Mahony

Catchwords: - back injury - two claims – claims rejected by employer - worker a long standing employee – whether employment a significant contributing factor to injury – sufficiency of medical evidence – termination for misconduct – whether termination for misconduct –operation of s 114(2A) of the Accident Compensation Act 1985 – Jarvis v The Salvation Army Southern Territory [2016] VSCA 175

REASONS FOR DECISION

HIS HONOUR:

Introduction

The plaintiff challenges the defendant’s decision to reject her two claims for injury to her lower back alleged to have arisen throughout the course of her employment with the defendant. It is not disputed that the plaintiff’s WorkCover claim are governed by the provisions of the Accident Compensation Act 1985 (‘the Act’). She seeks to have the rejection of her claims for weekly payments of compensation and medical and like benefits set aside and for a determination of an entitlement to the same for no current work capacity. The defendant argues that the plaintiff has not suffered an injury in the relevant sense and that in any event the plaintiff's claims should be rejected because of the operative effect of ss 103 and 105 of the Act. Finally, the defendant submitted that the disposition of the self-insurer’s decision in relation to her claims was due to her termination for misconduct and not related to her incapacity and as such is otherwise met by the operation of s 114(2A) of the Act.
The gateway to compensation under the Act is s 82 of the Act. So far as is relevant, it is expressed as follows:

(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.

The Act then directs attention to the form of compensation that is applicable for injury that accords with s 82 (1). The form of compensation is expressed in s 93 of the Act as follows:

If a worker's incapacity for work results from, or is materially contributed to by, an injury which entitles the worker to compensation, the compensation shall be in the form of weekly payments subject to and in accordance with this Part.

Injury, as relevantly defined, and applicable to the circumstances of this case, is expressed in s 5 of the Act in these terms to mean:

any physical or mental injury and, without limiting the generality of that definition, includes—
(a)industrial deafness;
(b)a disease contracted by a worker in the course of the worker's employment (whether at, or away from, the place of employment);
(c)a recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease;

Section 82(2C) (c) of the Act precludes entitlement to compensation for a recurrence, aggravation, acceleration, exacerbation, or deterioration of any pre-existing injury or disease unless the plaintiff’s employment was a significant contributing factor.

Accordingly, in light of the provisions contained in the Act, it falls to the plaintiff to discharge a burden of proof by way of the production of sufficient evidence, that on the balance of probabilities, she has an injury that arose out of or in the course of her employment with the defendant, that is, injury in the primary sense or, if she suffered injury by way of an aggravation, that her employment was a significant contributing factor.

The question for me to determine in regard to the defendant’s liability, is at its heart, one of causation. Counsel for the plaintiff and defendant were at one on this point. In March v Stramare Pty Ltd[1] (1991) 171 the High Court referred to the application of common sense in the assessment of causation.

The plaintiff

[1] (1991) 171 CLR 506

The plaintiff was born on 18 December 1960 in Samoa. She resides in Cranbourne North. She was educated to year 12. She arrived in Australia in 2001. Almost immediately upon her arrival and in June 2001 she commenced employment in Dandenong with the defendant at one of its “Coles” branded supermarkets located. She was initially employed for 10 hours per week but three months later this increased to 20 hours per week and sometime in 2002 she became a full-time retail assistant. By 2009 she was working 25 hours per week together with some overtime.
On 6 January 2014 the plaintiff’s employment was terminated. The termination occurred in contentious circumstances involving an allegation of sexual harassment by the plaintiff of a male staff member. I deal with the allegation of sexual harassment later in these reasons.
More than 3 months after ceasing her employment and on 28 April 2014 the plaintiff completed a Worker’s Injury Claim Form[2]. The Worker’s Injury Claim was rejected on behalf of the defendant by notice dated 21 May 2014.[3]

[2] Ex D6

[3] Ex D18

On 26 March 2015 the plaintiff lodged a further Worker’s Injury Claim Form dated 26 March 2015[4]. On 22 April 2015 the further work claim too was rejected.

[4] Ex P10

The plaintiff is very overweight. She said her weight fluctuated between 120 to 130 kg and that at the time she gave evidence she said she weighed 140kg.

The onset of injury

The plaintiff said that in 2010 she experienced symptoms of pain in her lower back. The evidence does not identify the onset of pain occurred due to the happening of any specific incident or assault to the plaintiff’s back. From this time onwards however the plaintiff had occasional days off work for which she utilised her ordinary sick leave entitlements. She attended on her local practitioner Dr Saghir and was prescribed ordinary pain medication.
On 8 June 2011 the plaintiff saw Dr D’Argent of the Hallam Mediacl Group because of “painful back/knee –for 3 months no recall of any falls[5]”. The note made no reference to the plaintiff’s work with the defendant, although of course, she was in its employ at that time. X-rays to lumbar spine and hip were requested and an ordinary medical certificate was issued. On 10 June 2011 the plaintiff attended again on her doctor because of back pain and Dr D’Agent prescribed Panadol Osteo and a further medical certificate issued.

[5] References in italics are reproduced from clinical notes

The x-ray of the plaintiff’s lumbosacral spine was unremarkable as was the x-ray of the plaintiff’s pelvis – left hip.
On 28 July 2011 the plaintiff attended Dr Jane Song of Hallam Medical Group. Clinical notes record that the plaintiff had not been at work for the previous 2 days with “some back pain”.
On 22 March 2012 the plaintiff attended on Dr Song and it was noted “sore lower back for a few days – tired when standing – works at Coles”.
In October and November 2013 the plaintiff experienced an increase in back pain and developed pain extending into her legs, more on the left side on the right side. She was attending Dr Saghir of the Hallam Medical Group.
On 16 December 2013 the plaintiff attended at the Emergency Department at Dandenong Hospital with acute exacerbation of back pain. X-rays and medication followed. She had 2 or 3 days off work. The plaintiff was still employed with the defendant at this stage.
On 13 January 2014, approximately a week after ceasing employment with the defendant, the plaintiff experienced a severe exacerbation of back pain and was admitted to the Dandenong Hospital for a period of two weeks.
On 17 February 2014 the plaintiff attended the Woodley Waters Medical Centre[6] with left sciatica and bilateral foot pain with the clinical note stating, (“Bilateral foot pain. Left hip pain left sciatica.? Neuropathic ? disc prolapse Hypertensive) .

[6] Ex D5 Clinical Record

On 27 February 2014 an MRI of her lumbar spine was performed. The commentary by the radiologist identified as follows[7]:

Severe facet degeneration L5/S1 with left perifacet oedema. Further severe facet degeneration L4/L5. In the setting of localised left lower buttock pain, this may be arising from the facet joints, especially in light of the surrounding soft tissue oedema. CT-guided steroid facet joint injections could be considered.
Severe bilateral L5/S1 foraminal stenosis with compression of the exiting left L5 nerve root. The patient also describes sciatica symptoms of the foot which may be arising from this region and left L5 nerve sheet injection may be of benefit.
Mild canal stenosis L4/L5.
[7] Ex P8

On 3 March 2014 the plaintiff attended for a “long consultation” with Dr Amalan who recoded in a note[8]:

“Back pain on and of[f] long time [w]orse last few weeks been to hospital radiation down left leg now getting better pain 2/10
Foot pain again few weeks swelling recently
Hypertension – recently started on amlo 10”
[8] Ex D5

On 16 April 2014 some months after the plaintiff’s employment had concluded the plaintiff was given a certificate of incapacity that read, “patient has severe lower back pain which has been aggravated due to her work which involves prolonged standing.”
In December 2014 the plaintiff was admitted to Dandenong Hospital for 5 days. On 11 December 2014 an MRI of the spine was performed.
In January 2015 the plaintiff was admitted to Dandenong Hospital for 3 days.
In March 2015 the plaintiff underwent an injection to her lower back.
On 26 March 2015 the further claim was lodged and on 22 April 2015 a rejection letter was received.
In April 2015 the plaintiff was admitted to Dandenong Hospital for 14 days. The plaintiff had an injection to her lower back.

Notification of injury and the determination on the plaintiff’s claim

The plaintiff’s Claim Form dated 28 April 2014[9] identified injury having occurred in October 2013 and being first reported in April 2013 to Elaine Korman from the defendant. The 28 April 2014 Claim Form described “Severe facet degeneration and spinal stenosis with compression of left nerve root” and, as to the cause of injury, it recited “standing over the cause [sic] of employment”.

[9] Ex D6

The Claim Form was rejected by notice dated 21 May 2014[10]. The employer referred to the report of the plaintiff’s General Practitioner Dr Amalan dated 8 May 2014 that she was suffering from severe L5/S1 facet degeneration and spinal foramina stenosis and that her condition has worsened due to her work situation where she was required to stand for a prolonged period. As well however the employer’s notice of rejection referred to a report of consulting orthopaedic surgeon Dr Barton dated 16 May 2014 that in part stated that the plaintiff has constitutional and long-standing changes in her spine that are not work-related but related to lifestyle factors and that her employment is not a contributing factor to her condition and that any such incapacity she may be suffering is not related to her work injury. The defendant adopted the opinion of Dr Barton and concluded that there was insufficient medical evidence to support the plaintiff’s claim that she sustained a back injury as a result of standing over the course of her employment with the defendant.

Analysis of the plaintiff’s employment

[10] Ex D18

The plaintiff was employed by the defendant for a period of 13 years. I treat this as a reasonably lengthy period of continuous employment. At the point in time that the plaintiff says she first became aware of her back condition she was employed as a full-time checkout operator and was working a suite of 25 hours per week. It was not disputed by the defendant that over the course of the plaintiff’s employment with the defendant, her duties remained relatively static and called for her to be on her feet during her shifts other than for her designated tea and lunch breaks.
The defendant made considerable effort in testing the plaintiff’s account of the extent she was required to stand in performing her work and whether it was necessary for her to “twist” and “rotate” as she said was required of her in performing her work.
On 16 May 2014 Dr Barton, Consultant Occupational Physician, who conducted a medico-legal examination of the plaintiff at the request of the employer, wrote in a report:

“Subsequently the worker was seen by her doctor following an MRI scan she was advised that the problems seen on the scan were ‘due to standing and twisting at a cash register’”.

I am satisfied that there is no contest but that the plaintiff spent almost all of each shift standing. There is a contest about the extent to which certain movements were necessary or if she needed to “twist”. I accept that the evidence is that the employer was diligent in the educative elements of work safety to its employees. However, the nature of some of the questioning of the plaintiff’s movements, and the testing of her in regard to the same under cross-examination, descended into the somewhat artificial and it should be borne in mind that the proceeding does not require a judgment by me whether the defendant provided a safe system of work for the plaintiff but whether or not I am satisfied on an account given by the plaintiff that her work, howsoever discharged by her, was productive of injury in the relevant sense. In relation to the mechanical manner of her work the plaintiff said in evidence in chief that she “felt pain at work when walking, standing, lifting and twisting”.
I am also satisfied and find that the plaintiff's pain came upon her and presented at work. Therefore, a temporal connection exists, but that does not determine whether the plaintiff has discharged her burden of proof that her employment was a significant contributing factor to her injury. For this to be established the plaintiff is required to discharge the burden of proof that resides with her about additional matters. To determine whether she has made good here claim it is therefore necessary to consider the plaintiff’s evidence in greater detail.

The plaintiff’s evidence in greater detail

The plaintiff undertook retail work in Samoa and in New Zealand before arriving in Australia in 2001. She is married and has three children. In 2009 she reduced her working hours for family reasons. She had been working 25 hours per week. She had a staggered work fortnight with changes every fortnight the hours worked on Fridays and Saturdays. Her work day consisted of two 15 minute breaks and one 30 minute break or a 1 hour lunch break depending on her shift.
The plaintiff testified about the geography of the Dandenong Coles supermarket at which she worked. She identified the cigarette booth or “kiosk” at which was located two registers. She said she always stood. She said that 75% of duties were carried out whilst working at the registers and the balance of her shift spent on duty in and around the self-service checkouts. She said she “loved my job”.
The plaintiff described the use of the belt on which groceries items were placed and moved towards the register operator prior for packing into plastic bags hooked onto a fixed metal carrier which height could be raised or lowered depending on the circumstances of the employee.

The onset of pain

The plaintiff described the onset of pain to her lower back in 2010. She said she reported this to either Mr Bob Lightfoot, her supervisor, or Ms Elaine Korman, her line manager. Korman and Lightfoot both testified for the defendant and said they could not recall such a conversation with the plaintiff.
I am not satisfied of the plaintiff’s account of evidence that she told her Lightfoot or Korman of the existence of pain in her lower back in 2010. I prefer the evidence given by Lightfoot and, in particular, Korman with whom the plaintiff said she got on well at work, that she made no complaint of back pain. Of course I have also borne in mind that an absence of complaint of back pain may have been explicable on the basis that the plaintiff’s concern to not raise any health issue with her employer but obviating against this explanation is that the plaintiff testified positively that she did raise the matter, and moreover, the defendant’s witness evidence was not a denial of any complaints by the plaintiff regarding her health but of complaints of back pain.
The plaintiff also said that she told Ms Korman she had back pain “because of twisting”. I do not accept her evidence of that complaint of conversation.
In the period from about 2011 to 2014 the plaintiff said the pain in her back worsened. She said she sought treatment for the pain. The treatment the plaintiff received during this time was conservative and amounted to taking painkillers and rest.
The plaintiff said she commenced to experience sharp pain in the lower back and it began to affect her left leg and by late 2013 the pain was worse.
The plaintiff said that from about September 2013 she was limping at work. She said she felt pain when at work as a result of walking, standing, lifting and twisting. She said by the end of each day her pain was “very bad” and that when she got home of an evening she would need to relax. She said that whilst she was not working the pain was less but she was still limping. She had by now progressed to a suite of medications including Lyrica, Endone and Panadol Osteo.
On 16 December 2013 the plaintiff attended the Emergency Department of Dandenong Hospital. She said the cause of the admission was back pain radiating to her leg. She was provided with a medical certificate certifying her unfit for work due a medical condition from 16 to 23 December 2013 inclusive. Dr Sagir provided a certificate for fitness for work dated 23 December 2013.
The plaintiff said that when she returned to work and furnished the certificate to Korman who asked her if she was “okay” and she replied, that she was, “for now”. In response to a question by her counsel, Ms Frederico, the plaintiff said she did not consider making a workcover claim at that time because she loved her job and “did not want to make a fuss”.

The harassment controversy

On 6 January 2014 the plaintiff was called to a management meeting by the Store Manager. According to her she was given about a weeks’ prior notice of the meeting in a telephone call from Lightfoot. She attended the meeting accompanied by a union representative. She said she was confronted with allegations of sexual harassment of a fellow fresh produce department staff member Mr Adam while they were together in the tea room. Although Lightfoot appears to have incorrectly recorded the date of the incident as 26 December 2013, I am satisfied the complaint should be understood as concerning events said to have occurred on 24 December 2013. The plaintiff said that after being listened to by those present from the employer, who in addition to Lightfoot, included Ms Sonia Dixon, the meeting was adjourned for a period of time and on resumption she was told her that she could resign her employment or be terminated. She said that on the advice of her union she elected to be terminated.
After her employment with the defendant ended the plaintiff was again hospitalised being admitted to Dandenong Hospital on 13 January 2014 and being discharged on 24 January 2014. The discharge summary[11] identified the diagnosis on discharge as, “Left Hip/Buttock Pain, Gout Acute on Chronic Renal Failure Supratherapeutic Paracetamol Level”.

[11] Ex D4

An application was lodged in Fair Work Australia on behalf of the plaintiff alleging unfair dismissal contrary to the Fair Work Act 2009. I was told that the application for relief was resolved. It appears the Fair Work application was filed on 24 January 2014 being the day the applicant was discharged from Dandenong Hospital. The application was signed for and on behalf of the plaintiff by her union.

The plaintiff is cross-examined

The plaintiff was taken through a number of innocuous and non-probative historical events such as having played for a Coles’ staff volleyball team in about 2008/2009. She said that her decision to transition from full time to part time employment with the defendant came about as a result of a Tattersall’s win and at the urging of her family to reduce her workload and spend more time with them.
The plaintiff was steadfast in her evidence that it was from about the end of 2010 when she began to experience pain symptoms in her lower back of sufficient severity to prompt her to attend Dr Jane Song at the Hallam Medical Centre. The plaintiff is recorded as having attended the Hallam Medical Centre on a good number of occasions. Whilst attending that clinic she also was treated by Dr Ariane D’Argent. I refer to relevant entries of attendance.
A note of entry for 8 June 2011 made by Dr D’Argent noted “painful l back to l knee – for 3 months” from which attendance diagnostic imaging was requested. An entry two days later on 10 June 2011 also records back pain. An entry on 28 July 2011 discloses the plaintiff not having attended work for 2 days due to “some back pain” and a medical certificate was supplied. A note of record dated 22 March 2012 made by Dr Song included the following:

“sore lower back for a few days tired when standing works at coles”.

Mr McKenzie, in final address submitted that the clinical notes are devoid of reference to the plaintiff’s work as a factor for the presentation of pain, and that the reference to Coles as contained in the above note, should not be seen as more than fixing the identity of her employer. The author of the note was not called. In my view there is a limit to the extent of probative findings that can be derived from a clinical note of entry in what is otherwise a lengthy clinical record where the maker is not called.
I agree with Mr McKenzie that the clinical records reveal overall limited medical attendances by the plaintiff with back pain and that of itself the record of attendance would not amount to a sufficient basis for me to find that the plaintiff had discharged her burden of proof that her employment amounted to a significant contributing factor to her injury. It is appropriate that I refer specifically to further relevant clinical notes.

·    A note of entry made by Dr Song dated 22 December 2012 records the plaintiff having expressed feeling tired when standing whilst engaged in her work with Coles. This entry occurs a point in time after the plaintiff had surrendered her full time work for part time work.
·    An entry of attendance on 4 May 2012 by Dr Saghir reveals bilateral ankle oedema “long standing no leg pains no SOB no chest pains”.
·    Medical attendances by the plaintiff also occurred in November 2012, January, February and April 2013 none of which contain any record relating to the plaintiff’s back.
·    On 1 May 2013 the plaintiff presented on Dr Saghir with pain at the top of her left foot together with swelling and associated difficulty with walking. This should perhaps not be thought surprising as on 8 May 2013 the plaintiff’s height is recorded at 172 cm and her weight at 133 kg with a Body Mass Index of 45.00.
·    A record of entry dated 5 August 2013 by Dr Saghir reads: “Lt thigh pains, radiating to knee, no numbness, no lower back pains”. The reason expressed for the attendance is given as “Sciatic pain”.
·    In addition medical attendances occurred on 1 October, 22 October, 28 October and 8 November 2013 but they do not contain any reference to a complaint of back pain.
·    On 5 December 2013 the plaintiff saw Dr Saghir because of “back pain”. On 18 December 2013 the records include an entry in relation to back pain.
·    On 23 December 2013 Dr Song is recorded as writing– “back pains settled” – “analgesia to continue as required”.
·    On 10 January 2014 Dr Song recorded a complaint of back pain but made no reference to a work relatedness.

The plaintiff produced medical certificate for the period 28 October 2013 to 1 November 2013 certifying her as unfit for work. She agreed with the defendant’s counsel that it was “most likely” true that the clinical notes are silent of any reference to back pain during the period of time encompassed by the certificates. I am satisfied by the evidence that this is so.
I am not satisfied that the contemporaneous medical records support the plaintiff’s reliance on employment for injury.
It was suggested to the plaintiff that when she furnished a bundle of medical certificates to Korman any reference she made was to her feet and not her back or leg. She denied this and said that she “complained about my back on many occasions”. I am not satisfied on balance and do not accept the correctness of that account of evidence given by the plaintiff.
The defendant referred the plaintiff to her Application for Unfair Dismissal and the remedy of reinstatement in addition to compensation sought by it. It was suggested to her that this was inconsistent with her claim of incapacity. I draw nothing of relevance from the unfair dismissal application because the remedy of reinstatement is, I venture to suggest, de rigueur in such proceedings and, moreover, the application was made on behalf of the plaintiff by her union under a statutory regime that prescribes a short time period in which to commence such an application.
The plaintiff changed the medical clinic she attended and her first attendance on the Woodleigh Waters Medical Clinic occurred on 17 February 2014 and involved a complaint of gout and left sided sciatica and there is an absence of reference to work relatedness.
On 27 February 2014 the plaintiff underwent an MRI of her lumbar spine.
A note dated 3 March 2014 made by Dr Amalan is the first of that clinic’s record of a complaint of back pain, and it was expressed as “on and of (sic) for long time [w]orse last few weeks been to hospital radiation down left leg now getting better pain 2/10. ” There is however no reference to the plaintiff’s work with the defendant.
A note of entry dated 4 March 2014 identified “back pain” as the cause of the consultation. Further entries are to be found for 13, 20 and 27 March 2014 and 1 and 3 April 2014 but it is not until 8 April 2014 that a connection to the plaintiff’s work is recorded.
The plaintiff when asked about these entries said that she did tell her doctors about her work duties and could not proffer an explanation for an absence of reference to her employment.
On 16 April 2014 Dr Amalan provided a certificate of incapacity that read: “patient has severe lower back pain which has been aggravated due to her work which …
In April 2015 the plaintiff was again admitted to Dandenong Hospital for 14 days and the plaintiff had injection to her lower back.
The plaintiff was questioned about her attendance on Mr Ian Jones who examined her for the defendant. Mr Jones recorded that the plaintiff had said she could sit for up to 15 minutes. The plaintiff said she could not recall what she told him. She was asked if she told him that she ceased work because of her back and she agreed. She agreed that she had given similar accounts to other medico examiners such as Dr Barton who also examined the plaintiff for Coles in May 2014 who recorded the plaintiff as stating that “she was struggling at work”. Counsel put it to the plaintiff that she ceased employment because she was terminated and not because of her back problem. I asked the plaintiff if the decision of 6 January 2014 had not transpired if she would have been at work in the ordinary course the following day and she said she would have.
Dr Awad saw the plaintiff in October 2015 and he reported her complaint of severe back pain was made worse by sitting for longer than 20 minute periods. Counsel suggested that her account to Dr Awad was at odds with her presentation of evidence seated in court during the hearing over a lengthy period of time. The plaintiff said she was suffering from back pain when testifying and she denied she was exaggerating her back pain. In re-examination she said she had taken a number of medications to assist her in giving evidence in the courtroom. I am not persuaded that I should draw any inference either favourably or unfavourably based on the plaintiff’s physical presentation in the witness box over a finite period of time.
The plaintiff said that at the time of her hospital admission on 13 January 2014 her health was very bad and she could not walk because of her back pain. It was noted that she said she would not return to work because of her back and buttock pain. It was also noted that she had said that the pain was relieved with rest. However despite the rest that the plaintiff has had since the cessation of her employment in January 2014 her assessment of her back pain is that it has worsened. She told Dr Barton in May 2014 her back pain was really no better even after having ceased work some four months earlier.
The plaintiff said the claim form for compensation (Exhibit D6) had been assisted in its completion by the union. She said her union had been instrumental in her being put in contact with a solicitor.

The medical evidence

No oral evidence from doctors was adduced and instead the plaintiff and defendant relied on the clinical notes, reports, imaging and medico-legal reports. I have already referred to a good part of the relevant clinical notes and some parts of the medical reports. However, it is appropriate to address the medical reports in fuller detail.

Dr Amalan

Dr Amalan from the Woodleigh Waters Medical Clinic made reports of 8 May 2014, 30 July 2014 and 21 December 2015[12] . Dr Amalan wrote that the plaintiff “has spinal pathology due to osteoarthritis of her spine and the condition had worsened due to her work situation where she had to stand for a prolonged period. She is also obese and has continued to the progression of back pain.

She has pain on standing and mobilisation. Also gets it on prolonged sitting.… Currently she will not be able to do her usual work and if symptoms settles following interventions she may be able to return to work. She has been started on Lyrica for nerve pain is a non-analgesics. She has seen Physiotherapist and osteopaths.
[s]evere L5/S1 facet degeneration and spinal foramina stenosis. [Her] prognosis depends on the response to her treatment”.
[12]Ex P5

In his report dated 30 July 2014 Dr Amalan wrote that the plaintiff “reports back pain and pain radiating down left leg on and off for over few years and the pain has been gradually getting worse since end of last year.… On examination she has tenderness over her lumbar spines and her straight leg raising test was 30 degrees bilaterally. She walks on her own but has walking aids when pain gets worse.

Mrs Tuimaseve has spinal pathology due to osteoarthritis of her spine and the condition had worsened due to her work situation where she had a stand for a prolonged period. She is also obese which has contributed to the progression of back pain”

In his third report dated 21 December 2015 Dr Amalan wrote:

“Mrs Tuimaseve first started to come to this Medical Practice in February 2014 and saw me first on 3/3. 2014.
She gave a history of back pain for few years and the pain getting worse over few months necessitating hospital admissions. She informed that her job involved prolonged standing and it made her back pain and sciatica-on left side worse. She has had a Spine x-ray done in 2011 which had showed arthritic changes. She had a MRI scan in February 2014 (report extract omitted)
Mrs Tuimaseve has chronic back pain and sciatica secondary to degenerative spine disease. She is obese and this may have contributed to the pathology. Her occupation where she was on her feet for prolonged periods had made her back pain and sciatica symptoms worse. She has not mentioned to me about any back injury at work or elsewhere. Mrs Tuimaseve has few admissions in the last few years where she was admitted due to her back pain getting worse.
…
Mrs Tuimaseve is on pain medications-Panadol Osteo and Lyrica and takes strong pain medications like Endone when pain gets worse. She has been advised regarding an exercise program, physiotherapy or osteo therapy, weight loss and regular Analgesia. Neurosurgeon has advised, surgery will only help with her sciatica symptoms and may not help her back pain. Mrs Tuimaseve needs to follow the exercise program and weight loss to prevent further deterioration of her condition.
In her current status where her mobility is limited and she is in pain it will be difficult for her to have a capacity to work. This may change of her symptoms improve. If symptoms worsen she may need to see neurosurgeons regarding any surgical interventions”.

Dr Mohammed Awad

Dr Awad, neurosurgeon, provided a report at the request of the plaintiff’s solicitor’s dated 30 October 2015[13]. His reported history of the onset of lower back pain and its progression by late 2013 is consistent with the plaintiff’s account in her testimony. He expressed an opinion on causation based on an account of the plaintiff’s duties and the “nature of her work which required long periods of repetitive standing as well as her regular packing duties at the till, her employment has most likely been the significant contributing factor to aggravation and acceleration of her lumbar spondylosis. In my opinion, her employment remains the significant contributing factor to her ongoing pain, disability and requirement for treatment”. This causation Dr Awad wrote was in respect to a diagnosis of an aggravation of lumbar spondylosis and facet joint hypertrophy and bilateral L5 radiculopathy secondary to L5/S1 foraminal stenosis. He said that in his opinion, the plaintiff’s condition is consistent with her long repetitive workplace conditions “mainly standing for long periods of time throughout the course of this employment”.

[13] Ex P6

What can be said of these medico legal reports relied on by the plaintiff is that the mechanism for the aggravation of the plaintiff’s condition identified in them is conformable with the medical opinion of those who treated and saw the plaintiff. In other words, putting aside the credibility and reliability of the evidentiary account given by the plaintiff of complaint connecting her pain to her work, the theory that repetitive standing in her employment amounted to a contributor to her injury is reflected in the plaintiff’s medical opinion.

Ian Jones

Mr Ian Jones is an orthopaedic surgeon and in a report dated 19 November 2015 to the defendant’s solicitors he noted that he had examined the plaintiff on 16 November 2015 in relation to complaints involving the lower back. Mr Jones gave a work history derived from information furnished to him by the plaintiff. He reported that the plaintiff fixed the onset of symptoms in her lower back in 2010 although she did not recall any specific injury or insult to her lower back either at work or outside her employment. He recorded the plaintiff’s account of a gradual onset of pain over a long period extending up to 2013. Mr Jones noted the plaintiff’s first attendance on her local practitioner Dr Saghir in 2010 who prescribed medication for her back pain. He reported the plaintiff stating that in approximately 2013 she noticed an increase in the level of her back pain together with the development of pain extending down both legs. Mr Jones said the plaintiff told him that the pain in her left leg was worse than the right side and that the pain in the left leg and outer aspect of the left thigh extended occasionally into the left foot. Less severe symptoms were described by her as affecting the right lower limb.
Mr Jones noted the admission to Dandenong Hospital on 16 December 2013 at which point X-rays were undertaken and the plaintiff was sent home.
On 13 January 2014 Mr Jones noted that the plaintiff again reported severe spontaneous exacerbation of back pain. She was admitted again to the Dandenong Hospital for a two week period. X-rays were undertaken and a MRI performed and she received steroids and painkillers for the back pain and left and right leg pain. She was discharged home.
Mr Jones noted that since the plaintiff had resigned her employment in January 2014 she had undergone further treatment and had further admittances to the Dandenong Hospital for treatment as an inpatient including for a period of 14 days in April 2015. He noted that the plaintiff had reported limited relief from injection into the lower back however she thought a repeat of the injection in April 2015 was less beneficial.
Mr Jones noted that the plaintiff also reported that for the preceding four months she had suffered bilateral wrist pain and pain and swelling in both ankles particularly on the right side and aching symptoms of both knees.
Mr Jones referred to the history of objective investigations that had been undertaken and although he did not have x-rays to hand he referred to reports in which they had been discussed such as:

·an x-ray of the lumbosacral spine, pelvis and hip dated 10 June 2011;
·an MRI of the lumbar spine dated 27 February 2014;
·a report of a plain x-ray of the lumbar spine dated 10 June 2011 which described prominent bone density overlapping the right and left facet joints in the lower lumbar spine suggesting facet joint osteoarthritis with prominent osteophyte formation;
·an x-ray report of the patient’s pelvis and left hip but no suggestion of pathology;
·an MRI scan report of plaintiff’s lumbar spine dated 17 February 2014 that concluded severe facet degeneration at L5/S1 with left perifacet oedema. Further severe facet degeneration at L4/5. The MRI scan additionally described severe bilateral L5/S1 foraminal stenosis with compression of the left L5 nerve root. Mild canal stenosis was reported at L4/5;

a further MRI scan report produced by the plaintiff dated 11 December 2014 that concluded severe facet joint hypertrophy at L5/S1 resulting in severe right and moderate to severe left neural foraminal stenosis. Bilateral mild neural foraminal stenosis was also reported at L4/5 due to extensive facet joint hypertrophy. Mild to moderate broad-based disc bulge was reported at L3/4 causing mild to moderate central canal stenosis.

Responding to specific questions that had been requested of him, Mr Jones said that:

the circumstances of the onset and progression of the plaintiff’s back and left and right leg pains occurred in circumstances in which she had been unable to identify any precipitating injury either during the plaintiff’s employment or outside of the work to account for her lower back and left and right leg conditions.
clinical examination of the plaintiff revealed a morbidly obese woman with a moderate restriction of spinal movement with referred pain particularly into her left buttock. He reported that there were no convincing signs of radiculopathy affecting either of the plaintiff’s lower limbs.
x-ray evaluation of the plaintiff revealed changes consistent with severe long-standing facet joint arthritis particularly of the L4/5 and L5/S1 levels of the lumbar spine. He reported that the more recent MRI scan investigations showed severe compromise of the intervertebral canals of the L5/S1 level which he thought was likely the cause by way of pressure on the L5 nerve root and thus would explain the referred pain into the plaintiffs’ lower limbs.

Mr Jones expressed the opinion that the plaintiff suffers from severe facet joint arthritis affecting the L5/S1 joints of the lumbar spine and to a lesser degree the L4/5 facet joints. He expressed the view that the plaintiff’s lower back condition to be constitutional in its aetiology related to her age and morbid obesity. He concluded that although the plaintiff’s employment working at the checkout had the capacity to exacerbate the symptoms he did not believe that work had been a cause of her lower back complaint [14]and thus any exacerbation by way of symptoms that she may have experienced at work should have ceased when her employment ended had her employment been a cause.

David Barton

[14] My emphasis

Mr David Barton is a Consultant Occupational Physician. He also examined the plaintiff on 15 May 2014 at the request of the defendant and he produced a written report.[15] He too took a history of the plaintiff’s employment and noted that she had first developed some lower back problems approximately two years prior to the date of examination. He wrote that that the plaintiff “did not report this problem at work”. He said the plaintiff had told him that it was in October 2013 that she commenced to experience problems with pain and numbness in both feet, and the pain and numbness was equally present on both sides. As well the plaintiff said she had noticed some lower back pain.

[15] Ex D11

The plaintiff told Dr Barton that she is “really no better having stopped work four months ago.” She described pain in the left buttock area as one that shoots down the back of the left leg and she said she has constant pain in both feet. She said that her back and leg symptoms were generally worse with prolonged sitting, standing and walking. She also described pins and needles and numbness around the posterolateral aspect of the left thigh.
Mr Barton noted that the plaintiff is significantly overweight.
Dr Barton wrote that although there had been some changes observed on MRI, this did not suggest in his opinion that the changes would have been caused by her work or that the plaintiff’s work caused the onset of her symptoms.
Dr Barton described the plaintiff’s health as fairly poor and related to her level of obesity and lack of physical fitness. He did not believe the plaintiff’s employment is a contributing factor to her problems which he regarded as constitutional and related to lifestyle factors. However, no lifestyle factors were specified by Dr Barton.

Lay Evidence

Elaine Korman

Elaine Korman is the Customer Service Manager employed by the defendant at Dandenong and has occupied this position for the last 7 years having been employed by the defendant overall for 15 years. She testified about certain physical elements associated with the plaintiff’s work environment. She was taken to Exhibit D7 consisting of photographs depicting the checkout at the kiosk. There is a belt running at the front and back. She agreed that the plaintiff worked the self-checkouts. She testified that advice was given to employees to “work the figure 8”, that is, to utilise a method of movement around the checkouts best designed to observe attempts by customers to avoid scanning purchases. When told that the plaintiff’s evidence had been that over the course of a shift she worked about 25% of the time at the self-checkouts and 75% on kiosk registers, she disagreed and said that staff were spread across all areas over the course of a shift.
She did not agree with the suggestion that a staff member was required to twist in order to fulfil register duties and she said that all staff working registers have the use of fatigue mats and raised bag carriers. She said she could not recall seeing the plaintiff twist. Obviously Korman did not have the plaintiff under constant observation. I accept however the evidence of such of the observations that she made.
Korman said that she had seen the plaintiff limp once “ages ago” but that the plaintiff explained it to her as due to “a sore foot”. As well Korman said that she saw the plaintiff on one occasion leaning on the assisted checkout bollard and she chastised her telling her that she was required to be walking around. She thought this occurred about July/ August 2013.
Korman said that the plaintiff “never complained about back pain to me”. She said that the plaintiff only ever voiced to her a complaint about her feet and she could only remember one occasion of such a complaint. She said she could not recall when this was but she remembered the plaintiff turning up for work one day in slippers. In addition, Korman said that the plaintiff had never complained to her about her legs. Korman said there were occasions on which certain instructions were given to the plaintiff, such as, to walk the figure 8, to go to register 7 and to pick up baskets but these requests were declined by the plaintiff for various reasons such as “it’s too cold at register 7”.
In cross-examination Korman accepted that the plaintiff was “an excellent worker” and that she was “very popular”.
Korman said the reason she requested the plaintiff obtain a medical clearance was “because I heard she had a numb hip”. She agreed that save for 2 fifteen minute breaks and a 30 minute break on a longer shift the plaintiff was standing for the whole shift.
Korman did not waiver in her evidence under cross examination that she had never been told of back pain by the plaintiff.
I found Korman to be a straightforward and direct witness in the manner in which she gave her evidence in regard to matters about which she had direct knowledge.

The complaint of sexual harassment

Under cross-examination a number of questions were put to the plaintiff to establish that she had been provided with documents governing her employment including the defendant’s Code of Conduct and Team Member Behaviour policies. The plaintiff did not contest that she had been provided with these documents and I am satisfied that they formed part of her employment terms and conditions. I am satisfied too from the plaintiff’s evidence that she had a sufficient understanding of the rules prohibiting sexual harassment in the workplace. She said she understood it was prohibited and that one outcome of a complaint of such a nature could be the termination of an employee’s employment.
The plaintiff was questioned about the events the subject of the sexual harassment allegation. She said she attended an interview on 6 January 2014 at which were present Lightfoot and Sonia Dixon from the employer and a support person from her union.
In the course of her cross-examination the plaintiff was asked if she was present in the tea room of the store in the company of co-workers Chong and Adam on 24 December 2013. She thought it was unlikely because Christmas Eve “is the busiest day” and she could not recall having a tea break in the presence of the staff members concerned. It is alleged that when she entered the tea room she asked “Where the big bananas were for the staff”. It was also alleged that she said, to Adam “I am going to grab your bananas”. It was alleged that she touched Adam inappropriately. The plaintiff denied making the comments or the particulars of the alleged physical contact.
The plaintiff denied touching Adam’s penis and told Lightfoot that she “knew the rules”. She said Choong was “always a very rude joke teller”. She said could not remember what she said in the interview. She said she was very shocked by the allegation.
The plaintiff agreed that there had been a break in the meeting and then Lightfoot came back and told her that her employment was to be terminated but gave her the option to resign which she declined. The plaintiff elected that her employment be terminated on the advice of her union representative. The plaintiff was furnished with a letter of summary termination for serious misconduct of her employment dated 6 January 2014 (exhibit D12).

Peter Choong

Peter Choong testified for the defendant. He said he is currently employed as a Duty Manager at Coles Dandenong. He testified about the events alleged to have occurred in the tea room on 24 December 2013 at about 5pm. He was on tea break in the tea room with Mr Adam. He said the plaintiff came in and asked “where are the bananas”. He said the plaintiff then approached Adam “and grabbed him on the penis area and then she made a sound”.
Choong was cross-examined. He was not sure if the date relied on as the date of the incident was correct. He agreed he had made a signed written statement to his employer. He agreed with Ms Frederico for the plaintiff that he and the plaintiff got along well together and that “we had big jokes together”. He said he was standing and positioned at the water fountain in the tea room getting water. He denied that because of where he stood that he did not see what happened. It was put to him by Ms Frederico that he told the plaintiff to grab Mr Adam’s bananas. He denied this.
Adam did not testify. No arrangement had been made for him to be available such as a subpoena by the defendant. Ms Frederico criticised this failure by the defendant but chose not to make a Jones v Dunkel[16] submission despite being afforded the opportunity to consider the position. However, in the plaintiff’s written submission dated 30 August 2016 and received by email at the Court on 5 September 2016, it was submitted that an adverse inference should be drawn. I do not think the plaintiff should be permitted to recant from its earlier concession at the hearing. In any event, for reasons that will be evident a determination on the submission is unnecessary.

Robert Lightfoot

[16] (1959) 101 CLR 298

Lightfoot testified. His evidence chiefly concerned the issue of the complaint of sexual harassment levelled at the plaintiff although he did give brief evidence about the plaintiff’s general work.
Lightfoot is Store Manager, Prahran Coles but previously had been employed as Store Manager at Dandenong.
He said he had no memory of any complaint of back pain made to him by the plaintiff. He said that in going about his work he would observe the plaintiff from time to time. There was nothing in the plaintiff’s presentation that raised any concerns based on his observations of her.
He testified about events that came to his attention in relation to a complaint about the plaintiff and a fellow staff member. He said that Choong and Adam came to see him and “he took it from there”. He said he spoke with Choong and Adam separately and then obtained written statements from them. The statements were not produced before me. He said a meeting with the plaintiff was thereafter arranged. He recalled the meeting occurred about 2 days after he gave notice of the same to the plaintiff and after he had received advice from Human Resources. He said a record was made of the meeting. He said the plaintiff told him that she had lent over and grabbed Adam’s leg. He conceded that the date of the alleged incident as initially documented by him was wrong and he believed in fact the incident was alleged to have occurred on 24 December 2013. He said after a break and discussion it was decided that her employment would be terminated for misconduct which Lightfoot described as “very serious” and could not be tolerated. He said that the employer offered the plaintiff the option to resign but she determined that it was for the plaintiff to terminate her employment.
Under cross-examination Lightfoot conceded that the plaintiff’s statement did not contain any admissions of wrongdoing by her or that that she grabbed Adam’s leg as she is said to have admitted. Lightfoot said he was shocked by the allegation against the plaintiff. He said she was a good employee. He said Adam told him that he was seated in the tea room and the plaintiff lent across and grabbed his penis. Lightfoot said Adam was very embarrassed by the recounting of the incident and was reluctant to discuss it.

Lightfoot’s other relevant evidence

As to the contest between the parties about the steps required and movements involved by a register operator such as the plaintiff and the range of movement by means of adjustment of height of the metal plastic bag holder from which purchases once scanned are then placed from the rubber belt, Lightfoot said, and I accept, that the bag container is adjustable to accommodate the varying height of register operators.
Under cross-examination, Lightfoot maintained his account of evidence of his observations of the plaintiff and said, “No she did not complain to me of back pain that I can remember”. In addition he said, “I cannot recall her limping or leaning” and, “I had no concerns about her health in late 2013”. He said, “she always said she was fine whenever I spoke with her after any return from sick leave”.
In re-examination Lightfoot said that had the plaintiff made a complaint of back pain to him he would have “sent her to be checked”.

The plaintiff’s conceptual analysis of the case - injury

The substance of the submission made on behalf of the plaintiff is that even if I am satisfied that the plaintiff would probably have developed her back condition despite her employment with the defendant I should accept the medical evidence of her treating practitioner Dr Amalan that her condition “worsened due to a work situation where she had to stand for a prolonged period” and that of Dr Awad that the plaintiff’s work “which required long periods of repetitive standing as well as regular packing duties at the till” has been and continues to be a significant contributing factor to ongoing pain, disability and requirement for treatment.
Ms Frederico submitted as well that the opinion of Mr Jones was as consistent with the plaintiff’s employment having acted as an accelerant of her degenerative condition such as to fit within the category of a recurrence, aggravation, acceleration, exacerbation or deterioration of a pre‑existing degenerative condition.
The question for me is whether the plaintiff has discharged her burden of proof and established on the balance of probabilities that her work which ceased on 6 January 2014 was and continues to be a significant contributing factor. This involves legal, factual and medical questions.

The legal question

The requirement that the plaintiff establish that her “injury” “arise out” of her employment will be satisfied if her employment is shown to have been a cause of the injury.

Standard of proof and “actual persuasion”

The standard of proof on the balance of probabilities requires the court to reach a state of “actual persuasion of the occurrence or existence of the fact in issue before it can be found” (NOM v DPP [2012] VSCA 198 at [124. A ‘[m]ere mechanical comparison of probabilities independent of a reasonable satisfaction will not justify a finding of fact” (NOM v DPP [2012] VSCA 198 at [124]. The plaintiff must show that her case is more likely than not (Jackson v Lithgow City Council [2008] NSWCA 312 at [9]-[10] per Allsop P.
In my evaluation of the evidence I have had regard to the nature of the legislation, being an enactment that is beneficial in nature.

Reasoning

Although I accept the plaintiff’s evidence that over a span of years she developed back pain and that her pain occurred while in employment with the defendant it is a telling fact that her pain has not been confined to occasions when undertaking her work duties but has persisted after ceasing work. Her evidence is that the pain has worsened over the years since her employment ended and that she has had periods of incapacity with frequent periods of hospitalisation. The nexus between the cessation of her work and the continuing and worsening pain was not addressed in the medical evidence relied on by the plaintiff to satisfy me that of the link between cause and effect to conclude the existence of a recurrence, aggravation, acceleration, exacerbation or deterioration of her pre-existing condition but it was addressed by the medical opinions relied on by the defendant. From the defendant’s standpoint, the conclusion derived, is that the plaintiff’s condition is constitutional in its aetiology related to her age and obesity and that the plaintiff’s work, although may amounting to a cause of an exacerbation of pain symptoms, was not a cause of them. In my opinion, the causative difficulty faced by the plaintiff and not overcome by the medical evidence upon which reliance is placed, is succinctly expressed by Mr Jones in his report dated 19 November 2015, when addressing his conclusion that the plaintiff’s back condition is the result of constitutional degeneration of her spine compounded by her obesity, he wrote:

“…Although this patient’s employment working at the checkout for Coles had the capacity to exacerbate her symptoms, I do not believe that her work has been a cause of her lower back complaint and that any exacerbation of her symptoms that she may have been experiencing at work would have ceased on cessation of employment”.

I prefer and accept the analysis by Mr Jones.

Significant contributing factor

It is not necessary that the plaintiff establish that the employment was either the sole or the dominant cause of her condition. Because of the nature of the extended definition of injury relied on by the plaintiff she must be able to establish that her employment was a significant contributing factor to it. In assessing the evidence I have kept in mind that the words “contributing factor” recognises that an injury may be caused by more than one factor and that the adjective “significant” means that where there is more than one factor involved and one of them is the worker's employment then its importance needs to 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 does not diminish the question whether employment is a significant contributing factor to the causation of injury[17]. It may be of lesser significance than another but nonetheless satisfy the description of “significant”. There are many statements that have been made in decided cases, the sum total of which are, I venture to suggest, consistent with the generality of comments I have just expressed. For example, 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”.

[17] See: Godala v KRT Riversdale Pty Ltd MMC 31 March 2015

In Allman v. Major Finance and Engineering Pty Ltd[18] Judge Strong described “significant’ as meaning “of considerable amount or effect”.
[18] (County Court, judgment 14 March 1997)

Ashley JA has spoken about the overlap between the statements of Judge Rendit and Judge Strong and he has said that there is an apparent point of disagreement in that the minimum requirement of the Meddis formulation is that the contribution of employment to injury be “more than de minimis”, whereas the “single requirement of the Allman formulation is that such contribution be ‘of considerable amount or effect’’. Ashley JA considered the Allman formulation more accurately reflects what he called, the “sense of the legislation”. As his Honour pointed out, the adjective which parliament chose to insert was “significant” not “material”, nor the phrase “to a recognisable degree” owe their development to different legislative arrangements. Further his Honour said it is an adjective which implies a contribution of greater dimension than that conjured up by such of these other formulations. His Honour stated that that it is important to keep at the forefront of consideration that what will amount to “considerable” in any particular case will, of course, be a matter for determination on the facts and that 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 section 5 (1B) factors

Section 5(1B) of the Act provides that –

(1B)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.

In deciding whether injury within sub‑paragraph (b) or (c) of the Act has been caused to the plaintiff the nature of employment is a matter that must be considered: (s.5 (1B) (b) and (c) of the Act). My assessment of the evidence is that the sum result of it is that the nature of the plaintiff’s employment consisted of continuous periods of standing on a daily basis and that her duties were largely static including tending registers and packing purchases and maintaining a presence at the self-serve checkouts and other rudimentary tasks as directed on occasions by her line manager. I am not persuaded that the nature of the employment or the plaintiff’s duties can be regarded as a significant contributing factor or, put another way, to the extent one or the other or both were factors, I am not satisfied that they were significant in the sense of amounting to more than de minimis.

Furthermore, I am not satisfied that there is a sufficient connection disclosed in the medical evidence relied on by the plaintiff to conclude on the balance of probabilities that the work duties performed in the discharge of her employment with the defendant meets the description of a recurrence, aggravation, acceleration, exacerbation or deterioration of any pre‑existing injury or disease. In other words, I do not accept the plaintiff’s submission that the plaintiff suffered an aggravation or an exacerbation or a deterioration of which the work she performed with the defendant was a significant contributory factor. As I have already said, I prefer and accept the opinion of Mr Jones, and I am not persuaded of the plaintiff’s duties having done greater than contribute to a temporary aggravation or exacerbation of symptoms of pain and that the absence of remediation of the same after her work ceased is, on balance, better explained by the constitutional nature of the plaintiff’s condition and its progression due to her general health, excessive weight and relative age.

By comparison, the plaintiff’s medical evidence offered no clinical explanation for the connection between the act of repeated and prolonged standing or the plaintiff’s duties at the checkout with her condition and I agree with Mr McKenzie that prolonged standing is, after all, the predication for the cause of the plaintiff’s injury despite the efforts of the plaintiff to rely on the extended mechanism of twisting.

In considering whether employment is a significant contributing factor to injury, paragraphs (e), (f) and (g) of s 5 (1B) directs my attention to aspects of the worker or her lifestyle, hereditary risks and her activities outside the workplace which, where relevant, have contributed to a particular injury. In giving effect to this part of the Act, it would be wrong of me to approach the matter of the construction of those paragraphs as only relevant where circumstances fitting them are present; in which case such facts would be put in the balance against the worker. Rather, as I understand the law, I am directed to be aware that the absence of facts falling within any of the sub-paragraphs may tell in favour of there having been significant employment contribution to injury in a particular case. There was no evidence addressing the plaintiff’s lifestyle, outside activities or any hereditary factors. I regard the absence of the same as neutral factors. Otherwise the evidence on relevant factors that I am directed to is that of the plaintiff’s employment with the defendant which was of reasonable length. I have had regard to its length when assessing the evidence of the particular tasks associated with the plaintiff’s employment with the defendant.

I have also kept in mind the question of the probable development of the injury occurring if the employment had not taken place. In this regard the medical opinions that address this relevant consideration are those of Mr Jones and Dr Barton and whose opinions favour the conclusion that the plaintiff’s condition would have developed if the employment had not taken place as opposed to the employment having merely exacerbated her condition.

Mr McKenzie for the defendant in final address highlighted a clear contrast between the defendant’s medical evidence particularly Mr Jones who reported that the plaintiff’s lower back condition is constitutional and the plaintiff’s medical evidence. The contrast relied on included a lack of evidence of a reliable complaint made by the plaintiff of pain associated with her work to her doctors and the absence by way of analysis, as opposed to assertion, of causation in the plaintiff’s medical evidence. The defendant also relied on the plaintiff’s account in her evidence that her condition worsened in the period of time since she ceased work. It is to be remembered that Mr Jones expressed the opinion that if the plaintiff’s injury was work related he would have expected an amelioration of and not a deterioration in presentation and symptoms. That opinion expressed was not met by the plaintiff’s material. At the time of trial and after two years of rest the plaintiff said her condition had worsened. I think Mr Jones’s opinion is an important matter. Mr Barton upon whose opinion the defendant also relied, adopted a similar logical reasoning to that of Mr Jones on the question of causation.

Mr McKenzie contended that the plaintiff’s case involved nothing greater than standing. Ms Frederico correctly directed me to the enlarged claim of injury arising throughout the course of the plaintiff’s employment and the reference to “twisting”. As to other mechanisms I am not satisfied that the movements of grocery items and placement in bags attached to the metal bag carousel involved the plaintiff in anything other than benign movement and her account in evidence which was more exaggerated as to methodology was not in my judgment consistent with the defendant’s witness evidence of how the bag carrier was adjustable to meet the variable circumstances of individual employees. The plaintiff’s medical evidence did not provide a meaningful explanation of a clinical connection to the duties relied upon. Mr McKenzie referred to the existence of the obvious and apparent exact same aggravating factor of standing occurring outside of the plaintiff’s work. Evidence was not adduced from the plaintiff of the hours she stood of a day outside her working shift but I think it can be safely assumed that her non-work related standing was of a lesser time period and was not of continuous duration as applied at her work. I do not find that this observation of assistance. The plaintiff said she would come home after work and need to rest in order to obtain some respite. However, in my judgment the experience of temporary respite should be seen in the context of the progression of the plaintiff’s condition as constitutional in aetiology and that despite ongoing rest and relative inactivity following on ceasing employment, her pain has worsened.

Mr McKenzie further argued that Dr Awad’s report was unreliable and that in terms of establishing a requisite connection with the plaintiff’s work duties his report does not amount to more than an assertion of work relatedness and is devoid of reference to her age and obesity. I agree with Mr McKenzie that this represents a deficiency in the assistance that can attributed to the report by Dr Awad.

I am satisfied that the preponderance of evidence is that the plaintiff had a pre-existing degenerative condition constitutional in its aetiology. This finding is supported by the detailed analysis and history recorded by Mr Jones. I am further satisfied that the onset of the plaintiff’s back pain occurred whilst at work with the defendant and that because the condition is characterised as one attendant with pre-existing degenerative changes the matter necessitates an answer to the question whether the injury was work related such that it has been proved by the plaintiff that through the course of her years of employment with the defendant she suffered degenerative changes that were aggravated and or accelerated by her work activities amounting to “a significant contributing factor” to such aggravation or acceleration. For the reasons expressed I am not satisfied on the balance of probabilities that the plaintiff has established this requirement. Rather I am positively satisfied that the plaintiff’s employment amounted to nothing more considerable by way of a contribution to her condition than an exacerbation of symptoms of pain. I am satisfied by the evidence that the absence of remedial effect on the plaintiff following the cessation of her employment is more probably due to the existence of the plaintiff’s underlying condition and her general state of health and weight than of her employment. Therefore the plaintiff’s employment was not a significant contributing factor.

Section 114 (2A)

At the date of reservation of my reasons for decision an appeal in Jarvis v The Salvation Army Southern Army Southern Territory[19] was awaiting hearing and determination by the Court of Appeal. The appeal in Jarvis involved the scope and operation of s 114(2A) of the Act upon which the defendant placed reliance in this proceeding. The Court of Appeal published its decision on 20 July 2016.[20]
[19] [2016] VSC 34 (Riordan J)
[20] [2016] VSCA 175

Because of my primary findings of fact that the plaintiff’s employment did not amount to a significant contributing factor to her injury the question of the operation of s 114(2A) of the Act does not fall to be considered. However, in the event I had arrived at a different conclusion on the facts and determined the plaintiff’s employment did amount to a significant contributing factor to injury, or I am wrong in my findings, then it is appropriate that I express my view about the application and reliance placed on s 114(2A) by the defendant.

I invited submissions from the parties arising from the decision of the Court of Appeal in Jarvis. Notes by way of submission were received[21]. I have given them consideration.
[21] By the plaintiff dated 5 September 2016 and by the defendant on 6 September 2016

It was not suggested by either party that because the plaintiff’s claim was a rejection of a claim for weekly payments that s 114 (2A) of the Act had no operative effect. Furthermore, it was not suggested by the plaintiff that because s 114(2A) was not raised in the employer’s notices of rejection for payments of weekly benefits and medical and like expenses[22] but pleaded in its defence that the question was not open to be heard and determined.
[22] Ex D17 and D18

The jurisdiction of the Magistrates’ Court is expressed in the following s 43 of the Act and it is “to inquire into, hear and determine any question on any matter”.

Section 114 (2A) of the Act is expressed in the following language:

If the current weekly earnings of a worker who—
(a)has an incapacity for work resulting from, or materially contributed to by, an injury; and
(b)is receiving, or but for the worker's current weekly earnings, would have been entitled to receive, compensation in the form of weekly payments—

are reduced because—
(c)the worker no longer resides in Victoria; or
(d)the worker's employment was terminated because of the worker's misconduct; or
(e)the worker—
(i)has resigned; or
(ii)reduced the hours worked otherwise than in the circumstances referred in section 93CDA—

for reasons unrelated to the worker's incapacity—

the Authority or a self-insurer may determine—
(f)not to alter the amount of compensation in the form of weekly payments paid to the worker; or
(g)not to pay compensation in the form of weekly payments.

The scope and application of s 114 (2A0 of the Act

In a decision in this Court of Gleeson v SPI Electricity Pty Ltd [23] His Honour Magistrate Garnett said that in circumstances involving s 114 (2A)(d) the Court must be satisfied that the worker’s employment was terminated because of misconduct and that the termination occurred for reasons unrelated to incapacity. His Honour decided that he was entitled to consider the circumstances of the employee’s misconduct and the harshness of the decision to dismiss for it.

[23] [MMC] 3 October 2014

Mr McKenzie submitted[24] that it was not for me to assess if the misconduct occurred, and it would follow, although not expressed as such by counsel, that I would not have power to revisit the decision, but if it was otherwise, then nonetheless I should be satisfied the defendant had established that the misconduct occurred and the termination followed as a result of such and not for reasons related to the plaintiff’s incapacity.

[24] Counsel’s submissions were made prior to the publication of the reasons for decision of the Court of Appeal in Jarvis and his written note did not develop the point.

It struck me that the primary position advanced by the defendant if left unchecked could lead to situations in which terminations were manifestly absurd and unjust decisions would be insulated from scrutiny. On the other hand, should a self-insurer or Authority or the Court be able to gainsay a finding of misconduct by the employer? Should the Court be at large to revisit decisions made by the employer, its agent or the Authority? The decision of the Court of Appeal offers guidance on the matter.
A distinguishing feature of the present case is that the conduct underpinning the finding of misconduct is not admitted by the plaintiff. The plaintiff denied the allegation of sexual harassment. She did however admit in evidence to having made a gesture of some sort at her fellow employee while he was seated in the tea room.
There is no argument that s 43 of the Act requires the Court to determine for itself whether a relevant precondition contained in s 114(2A) has been established.
Had my findings of fact on the matter of injury been determined favourably to the plaintiff then I would have been required to determine if the plaintiff was terminated for misconduct unrelated to her incapacity.
If I had been satisfied of that fact then it would have followed that one of the relevant preconditions provided for in subsection (2A) was made out and I would then have been required to “determine,” (as would have been the task of the insurer), whether or not to pay or alter the amount of compensation in the form of weekly payments as referred to in, and required by, the sub-parts of s 114 (2A) of the Act.
The use of the word “may” is a clear indication of the conferral of a discretion on the part of an insurer or the Authority (or the Court) as the case may be to make the determination required in the event of the establishment of the necessary precondition. To the criticism levelled by the respondent in Jarvis to an unencumbered conferral of the discretion, the Court of Appeal said[25]: “The short answer to this point is that the determination falls to be made by reference to the object and purpose of the Act” or self-insurer.

Misconduct unrelated to incapacity

[25] At para [31]

I am satisfied that the plaintiff’s employment was terminated for misconduct in her inappropriate conduct towards another employee and it was not related to her incapacity. I am satisfied of this based on the balance of probabilities taking into account the seriousness of the allegation. I accept that the employer received and progressed a complaint of misconduct and that it afforded the plaintiff the opportunity to be heard on it. I am satisfied the plaintiff was present in the tea room on Christmas Eve and and that she acted inappropriately towards a co-worker and the employer determined consistent with the codes of behaviour of which the plaintiff was aware to terminate the plaintiff’s employment for that reason.
The next step in the exercise that I would have been required to determine is whether it was the correct decision to reject the claims because of the termination of employment for misconduct? Had it been necessary for me to address this question then I would not be satisfied that the decision by the defendant was the correct decision arising from the misconduct.
The plaintiff was after all a long standing employee of the defendant. The oral evidence of Korman and Lightfoot was that the plaintiff was an excellent employee and very well liked and that the complaint made against her was completely out of character. Nothing by way of evidence was adduced by the defendant from the plaintiff’s work history to suggest otherwise. I heard as well evidence from the plaintiff that the workplace environment in the tea room and the conduct in the telling of jokes could be less than refined. The conversation in the tea room was not I think at all times genteel. I also think that it has some relevance that the plaintiff maintained a denial of the specific impugned conduct. The complainant was not before the Court and the statement made by the complainant to which reference was made on a number of occasions by Lightfoot was also not before me. The notes of the meeting was not a transcript or a verbatim account. The notes and record produced by the defendant do nonetheless support the fact of the allegation of harassment being made to the plaintiff. The fact of the denial by the plaintiff of the allegation does not forestall the defendant from being able to terminate the employment for misconduct. I accept the account of evidence given by Lightfoot.
In summary the task of the Court is to determine if it is satisfied the employment was terminated for misconduct and unrelated to the plaintiff’s incapacity. If that occurs the Court is then required to determine afresh the plaintiff’s claim for weekly payments and decide whether or not such compensation should be paid having regard to the object and purpose of the Act. In a particular instance, the existence of the precondition may determine the decision by the Court as to whether or not to order payment of or order reinstatement of weekly payments, but in all cases, the decision is the decision of the Court unimpeded by impermissible fetters to its jurisdiction.

The formal matters raised by the defendant pursuant to ss 102 and 103 of the Act

The defendant of course also invoked s 102 and 103 of the Act. I can deal with them in short compass. In essence the sections operates to preclude a plaintiff’s claim if the defendant has not been notified within 30 days of the plaintiff becoming aware of a work-related injury. Had it been necessary for me to decide the point I would not have upheld the objection based on this provision. I would not have been satisfied that it was not reasonably practical for the plaintiff to give notice as she stopped working without working through a period of notice and then then underwent a period of hospitalisation. Finally, I would not have been satisfied that a failure to comply with s 102 of the Act would in this case have been productive of comparative unfair prejudice to the employer. None was adverted to by the defendant. By comparison the enforcement of the statutory provision would cause comparative injustice to the plaintiff by barring her efforts to seek to establish a claim for entitlements.
The defendant also invoked reliance on s 103 (5) of the Act. I would not have upheld the objection of the defendant and I would have been satisfied the plaintiff’s claim for compensation was made as soon as was practicable after she became aware of her incapacity.

I note too, that counsel for the defendant in the course of his final address, in responding to questions from me did not place determinative emphasis on the provisions. I think that was entirely proper.
For the reasons stated above the plaintiff’s claim is dismissed. I will hear the parties on the question of costs.