Yilmaz v Speciality Fashion Group Ltd
[2019] VSCA 100
•8 May 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2018 0119
| NURSIMA YILMAZ | Applicant |
| v | |
| SPECIALTY FASHION GROUP LIMITED | Respondent |
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| JUDGES: | BEACH and NIALL JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 3 May 2019 |
| DATE OF JUDGMENT: | 8 May 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 100 |
| JUDGMENT APPEALED FROM: | [2018] VCC 1375 (Judge Parrish) |
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ACCIDENT COMPENSATION – Appeal – Serious injury application – Necessity for applicant to establish compensable injury – Whether applicant established that she sustained compensable injury – Credibility of applicant – Applicant not reporting alleged injury to medical practitioners – Primary judge concluding that applicant generally unreliable and not credible – Judge not satisfied that applicant sustained compensable injury – Application for leave to appeal refused – Accident Compensation Act 1985, s 134AB.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr A D B Ingram QC with Mr G A Worth | Melbourne Injury Lawyers Pty Ltd |
| For the Respondent | Mr J P Gorton QC with Mr S E Gladman | Hall & Wilcox Lawyers |
BEACH JA
NIALL JA:
Between November 2011 and March 2013, the applicant was employed by the respondent as a sales person at various of the respondent’s stores. Her work involved, amongst other things, lifting and carrying clothes up and down ladders and unpacking boxes of clothes.
By an originating motion filed in the County Court on 12 January 2016, the applicant sought leave pursuant to s 134AB(16)(b) of the Accident Compensation Act 1985 (‘the Act’) to commence a proceeding at common law claiming damages for injuries she alleged she sustained in the course of her employment with the respondent. The applicant relied upon paragraph (a) of the definition of ‘serious injury’ contained in s 134AB(37) of the Act — namely, ‘permanent serious impairment or loss of a body function’. The body function she relied upon was the function of her lower back and spine.
In her application, the applicant sought leave to commence a proceeding claiming both ‘pain and suffering damages’ and ‘pecuniary loss damages’.[1]
[1]As those expressions are defined in s 134AB(37) of the Act.
In order to succeed in her application, the applicant first had to establish that the injury she propounded as a serious injury was compensable — that is, that it arose out of or in the course of, or due to the nature of, her employment with the respondent.[2] It was only if the applicant established a compensable injury that one might then turn to the questions of whether the relevant consequences of that injury satisfied the ‘at least very considerable’ requirements contained in ss 134AB(38)(b) and (c) of the Act, and also whether a permanent loss of earning capacity of 40 per centum or more was made out as required by ss 134AB(38)(e) and (f).
[2]See s 134AB(2) of the Act; Borazio v State of Victoria [2015] VSCA 131 [63]; Laratae v Dean’s Pty Ltd [2016] VSCA 71 [18].
The application was heard in the County Court by Judge Parrish over three days in November and December 2017. On 23 August 2018, the judge delivered reasons for judgment dismissing the application.[3] The judge dismissed the application because he was not satisfied that the applicant had suffered a compensable low back injury during the course of her employment with the respondent.[4]
[3]Yilmaz v Specialty Fashion Group Ltd [2018] VCC 1375 (‘Reasons’).
[4]Ibid [248].
The applicant now seeks leave to appeal. Her proposed grounds of appeal are as follows:
1.It was not open to the judge to find at [225]–[226] that the applicant did not on 3 December 2012 inform physiotherapist Ms Van Valen of a work injury in June 2012 whilst pulling a heavy trolley.
2.There was no basis for the finding by the judge that the scribbled notes across the original physiotherapy notes would or could justify a conclusion that the applicant did not report a work injury in June 2012 whilst pulling a heavy trolley to physiotherapist Ms Van Valen on 3 December 2012.
3.Alternatively, the judge erred at [225]–[226] in finding that the applicant did not inform the physiotherapist Ms Van Valen of a work injury in June 2012 while pulling a heavy trolley at the time of first consultation on 3 December 2012.
4.Alternatively, in circumstances where the respondent did not challenge the evidence of physiotherapist Ms Van Valen, and the judge did not raise with the parties the prospect of a finding that the clinical note of 3 December 2012 was entered sometime in 2013, the judge failed to afford the applicant natural justice in respect of the findings at [225]–[226] that ‘it is not clear when the handwriting on the original document was added to that document’ and that the applicant ‘probably did not raise [with Ms Van Valen] the alleged incident of injury on 28 June 2012 until sometime in 2013’.
5.The judge failed to provide adequate reasons for the findings at [220], [225]–[226] that the applicant did not inform physiotherapist Ms Van Valen of a work injury in June 2012 while pulling a heavy trolley at the time of first consultation on 3 December 2012.
6.The judge erred in his findings at [220] in misstating the evidence and sidelining the evidence of Ms Van Valen at the time of first consultation on 3 December 2012, or alternatively, failed to provide adequate reasons for rejecting the applicant’s case at trial.
7.The findings by the judge at [188], [190] and [248] that the applicant had failed to prove that she suffered compensable injury in the course of her employment with the respondent were findings which were contrary to the evidence viewed as a whole.
8.On the whole of the evidence the judge ought to have determined that the applicant did suffer compensable injury in the course of her employment with the respondent.
The applicant seeks an order that the judgment below be set aside and that this Court ‘determine for itself that the applicant suffered compensable injury in employment with the respondent and the proceeding be remitted to the County Court for a new trial on remaining issues’. In the alternative, the applicant seeks again to have the judgment set aside, but with the whole of the proceeding being remitted to the County Court for a new trial on all issues.
The evidence generally
On the hearing of the application in the County Court, the applicant relied upon two affidavits that she swore on 14 September 2015 and 9 October 2017. She also relied upon an affidavit sworn on 9 October 2017 by her daughter, Derya Baritakis. Additionally, she relied upon an affidavit sworn on 10 October 2017 by Tulin Nouri, a friend who had known her for approximately five or six years.
The parties tendered various documents, including claim forms, medical reports, radiological reports, vocational assessment reports, notes, letters and emails.
The only witnesses to give viva voce evidence on the application were the applicant and two treating general practitioners, Dr Suzan Al-Alawi and Dr Paul Wing-Fei Mak. Dr Al-Alawi and Dr Mak practised at the Merlynston Village Medical Centre. The applicant attended that centre before, during, and following the conclusion of, her employment with the respondent.
Applicant’s background
The applicant was born in 1962. She was aged 49 to 50 during the period of her employment with the respondent, and 55 at the time of trial.
The applicant completed year 11 in about 1979. Thereafter, she engaged in various employments. Initially she was employed as a sewing machinist, and later as a process worker, before having time off for the births of her two children. She was later employed between 1989 and 1993 as a process worker, before again ceasing work to look after her children.
In or about 2001, the applicant commenced employment performing casual sales work. She moved from this employment to other jobs in retail sales. In 2005, she was employed with Merringtons Optical Sales. Her evidence was that she was employed in a managerial role, but was not paid for the duties she was performing. She said that this led to some anxiety and depression and that she consulted Dr Mak about this. She said that at about the same time she was diagnosed with diabetes and prescribed medications, including Zoloft, to ‘try and improve [her] mental outlook’.
In her first affidavit, the applicant said that she ‘subsequently picked [herself] up’ in employment at Harvey Norman between 2009 and 2011. She said that she believed her psychological issues ‘receded into the background’, although she said that she did have ‘some other unrelated health issues including some abnormal ovarian cells around this period’.
In her first affidavit, the applicant also said that prior to commencing work with the respondent she ‘had suffered some intermittent back pain’. Her belief was that these back symptoms were related to a kidney infection. She said she did not believe that she was suffering from any lower back condition at the time she commenced employment with the respondent.
At trial, the evidence concerning the applicant’s health prior to the commencement of her employment with the respondent was not limited to the applicant’s descriptions in her affidavits. Medical records of consultations the applicant had with medical practitioners prior to commencing employment with the respondent were tendered. It is not necessary to set out the details of all of those consultations. The clinical records disclosed that the more significant consultations were as follows:
·On 19 April 2010, the applicant consulted Dr Mak. The reason for the visit was said to be to review a mental health care plan and to deal with her inquiries about obtaining a disability support pension. At that time, it was noted that the applicant was not yet seeing a psychologist, but she had difficulties with lethargy and being unable to concentrate. Dr Mak prescribed Zoloft.
·On 8 May 2010, the applicant consulted Dr Mak in relation to her ongoing diabetes and her application for a disability support pension. At the time, she was referred to a psychologist and a mental health care plan was created.
·On 22 May 2010, the applicant consulted Dr Mak in relation to her diabetes. At this consultation, a Centrelink report asserting that she had not qualified for the disability support pension was discussed.
·On 5 July 2010, the applicant consulted Dr Mak in relation to ongoing asthma and a mental health care review plan.
·On 9 August 2010, the applicant again consulted Dr Mak. Prescriptions of Temaze and Zoloft were renewed.
·On 14 July 2011, an x-ray of the applicant’s lumbar spine was reported as follows:
In the lumbar spine there is a first grade anterolisthesis at L5/S1 level. Otherwise bony texture is normal. Disc spaces are well maintained. Sacroiliac joints have normal appearance.
The anterolisthesis is most likely related to bilateral pars defects. This may be confirmed with CT.
·
On 6 August 2011, the applicant consulted Dr Mak for an ongoing cough, vitamin D deficiency, diabetes and hypercholesterolaemia. Zoloft was ceased, but she was
commenced on Pristiq. The applicant was referred to physiotherapy for lower back pain, and to a dietician.
·On 23 September 2011, the applicant was seen by Dr Nabil Guindi for back pain and ‘frequency stinging’. The complaint of back pain was recorded in capital letters in the clinical notes. Following this consultation, there were additional consultations over the balance of 2011 in relation to complaints of pelvic and abdominal pain.
The applicant commenced employment with the respondent on 16 November 2011, as a sales person working in a number of its stores. The applicant remained in this employment until 9 March 2013. She said she ceased work because of ‘increasing lower back problems’. She has not worked since March 2013.
Circumstances of alleged injury
In her first affidavit, the applicant described her work with the respondent as involving her lifting and carrying clothes up and down ladders and unpacking boxes of clothes. She said the clothes ‘would be loaded from the boxes for display and some of the clothes would be placed on racks which were provided for displays’. She described suffering injury as follows:
I suffered lower back injury throughout the course of my work with [the respondent] particularly on 28 June 2012 as a result of the manual handling I was required to perform. On 28 June 2012 I was lifting and carrying clothes up and down ladders and unpacking boxes of clothes. I tried to pull a rack of clothes which had been loaded with clothes for display and was moving it into a position closer to the entry door. I believe the rack weighed 30 kgs or more when packed with clothes. As I was pulling on the rack the wheel came off the rack and the clothes began to fall to the floor. I tried to prevent this happening and put the clothes back up where I could. In the end some clothes were on the floor but I managed to push the rack to an upright position. In so doing I caused further injury to my lumbar spine.
In her second affidavit, the applicant deposed to two subsequent incidents relating to the rack of clothes involved in the incident on 28 June 2012. The applicant said:
Further to [my first affidavit], a similar incident involving the same clothes rack occurred about a month after 28 June 2012, however I am unable to recall the precise date. Again the problem occurred on this occasion because the wheel came off the rack. I also recall a third occasion when I was asked to move the rack and believe this was Sunday, 9 September 2012. On this occasion, I told the manager that I was not going to move the rack because I did not want to hurt my back again trying to lift it when the wheel came off and suggested that a red sticker or the like be applied to the rack so that people would know that it was defective and I recall the manager Maria saying ‘yeah, okay’.
Claim forms submitted by the applicant
On 9 March 2013, the applicant lodged a WorkCover claim form. The claim form contained the following questions and answers:
What is your injury/condition, and which parts of your body are affected?
Work related injury lumbar spine, back pain, hip and right leg.
What happened and how were you injured?
By trying to pull a rack with forearms full of clothes moving it to another position towards the entrance door — pulling it to move it, and the wheel came off it. The rack fell with all the clothes to the floor. I tried to lift and put the wheel back on it.
…
What was the date and time the injury/condition occurred?
28/06/2012 – 7-8:00 pm.
When did you first notice the injury/condition?
3/7/2012 – this was the next time I saw manager.
…
If you did not report the injury/condition, or there was a delay, please explain why.
I thought I would be okay, it would go away. I didn’t want to lose my job so I kept quiet.
In the claim form, the applicant identified Dr Mak as her treating general practitioner. In completing the claim form, she said that she gave the respondent her first medical certificate on 12 February 2013.
The applicant lodged the claim form together with a letter written by her and dated 5 February 2013. In that letter, the applicant gave further detail of what occurred on 28 June 2012 when she alleged she suffered injury. As to reporting what occurred on 28 June to the respondent, the letter provided:
[M]ost of the nights and weekends we are on our own to work in the stores. I was just worried that I had to get this job done and finished. Because my store manager, Maria Irardo, was quick to report us staff, to the regional manager, who is Heather Sloan (sic). I was scared because I didn’t want to be told off, for a stupid rack, and I needed my job, so my manager won’t have anything to complain and report about us, to the regional manager.
…
Next time I told my manager, Maria Irardo, but she didn’t ask anything and said ‘oh really’. But I didn’t want to do anything about it because I didn’t want to lose my job, because of my daughter’s wedding I really needed to work at this time, so I kept quiet about it all didn’t want it to be a problem [sic]. But I also mentioned it to another staff member, told her to be careful of that rack … .
The 5 February 2013 letter also referred to the incident that the applicant said occurred on 9 September 2012, before saying:
But I was feeling the pain so I went to see my doctor. I told him about my pains, and he sent me to get an X-ray to see what the problem was and that was in October. Now the pain has increased and I have been seeing a physio for my back pain since December 2012 and also taking medications to ease the pains to my back, hip, right thigh, and right leg. I had reduced my hours of work but I needed to take proper time off and now I am on my sick leave since 12 February 2013.
The applicant lodged a further WorkCover claim form in October 2013. In that claim form, the applicant described her employment as involving ‘constant and repetitive lifting, bending and carrying of clothes including boxes of clothes … unpacking and moving and sorting stock and deliveries’. In relation to her injury, the applicant alleged that she suffered a:
back injury, referred injury to the right hip and right leg, chronic pain syndrome, aggravation of degenerative disease of the lumbar spine, adjustment disorder with mixed anxiety and depression … over the period of employment from November 2011 to 9 March 2013.
Initial medical histories and consultations
Notwithstanding the applicant’s evidence of suffering injury on 28 June 2012, or more generally in the course of her employment with the respondent, the medical records of the applicant’s attendances on treating medical practitioners during the period of her employment with the respondent, tendered at trial, did not disclose contemporaneous complaints of work-related injury.
The medical records tendered at trial disclosed that the applicant attended at the Merlynston Village Medical Centre on 24 March, 11 May, 12 June, 25 July, 18 August, 20 August, 25 August, 13 October, 7 November, 21 November and 3 December 2012, and 7 January, 19 January, 9 February, 21 February and 25 February 2013 for a variety of complaints including anxiety, depression, disturbed sleep, gynaecological issues, diabetes and an upper respiratory tract infection. In none of the consultations between 24 March 2012 and 25 February 2013, however, was there any recorded complaint of, or history by, the applicant of her suffering a back injury in the course of her employment.
The first note of back pain was made by Dr Al-Alawi on 7 November 2012. The note of that consultation records:
Back pain with radiculopathy.
Had X-ray showed deg[enerative] changes/both knees.
Lumbosacral CT showed L3/4 canal stenosis secondary to disc bulge, L5 spondylosis.
On 7 November 2012, Dr Al-Alawi referred the applicant to Merlyn Physiotherapy and Hydrotherapy. In the referral, Dr Al-Alawi made reference to the complaints made by the applicant on 7 November 2012 relating to back pain, and also to the degenerative changes, shown on X-ray, in the applicant’s knees. Contrary to the applicant’s evidence, and contrary to what was the true position, Dr Al-Alawi’s referral letter stated that the applicant was ‘not working’ at the time of the referral.
On 3 December 2012, pursuant to the referral, the applicant was seen by Ms Van Valen. Ms Van Valen’s note of this consultation included the history:
Immediate History & Treatment
2 yrs c/o R leg P+P+N – Two years complains of right leg pain plus pins and needles.
Accident at work June 2012 when pulling a heavy trolley.
Past History
Chronic LBP (lower back pain) over more than two years.
It is the part of this note that provides, ‘Accident at work June 2012 when pulling a heavy trolley’, that is central to the complaints made by the applicant in this Court – and specifically to those complaints made under proposed grounds 1 to 6.
While there were references to back pain, a lumbar disc bulge, spinal canal stenosis and lumbar spondylosis in the notes of the Merlynston Village Medical Centre in consultations that occurred after Dr Al-Alawi’s referral, between November 2012 and February 2013, the first recorded note, in those notes, of the applicant’s back condition being work-related, was in Dr Mak’s note of the consultation of 2 March 2013, where the reason for that visit is recorded as follows:
Lumbar disc bulge.
Lumbar spondylosis — had Mobic for a month; now changed to Celebrex — to pick up script today, to stay on Panadol Osteo 2 bd as well;
Spinal canal stenosis — going to claim WC; [date of incident] 28/6/2012 — been to lawyer — going to make appointment + to get WC forms — been off work on MC since 10/2/13; running out of sick leave, to ? use up annual leave for about 8 weeks.
The applicant consulted Dr Mak again on 9 March 2013. The note of that consultation was similar to the note of the 2 March consultation, except that on 9 March a note was also made that there was a ‘second incident in September 2012’.
On 28 March 2013, the applicant again attended at the clinic of Dr Mak and Dr Al-Alawi. This time she was seen by Dr Joseph Slesenger. He recorded:
Low back pa[in].
Has had injury in June 2012.
Was working in retail and was asked to move a rack of clothes and the wheel dropped and fell and she injured her back whilst preventing a fall.
Notwithstanding the lack of any record in the Merlynston Village Medical Centre notes prior to 2 March 2013 of the applicant complaining of any work related back injury, or back problem caused by or at work, the applicant gave evidence before the judge that, prior to 2 March 2013, she had informed both Dr Mak and Dr Al-Alawi that she had suffered back pain as a result of an injury at work.
Judge’s reasons
The judge commenced his reasons with a description of the application,[5] a summary of the relevant legal principles[6] and a description of the issues in dispute.[7] The judge then summarised the evidence of the applicant,[8] and the medical treatment received by the applicant between April 2010 and March 2013.[9]
[5]Ibid [1]–[3].
[6]Ibid [4]–[10].
[7]Ibid [11].
[8]Ibid [12]–[19].
[9]Ibid [20]–[29].
The judge then summarised the evidence of Dr Al-Alawi.[10] The judge noted Dr Al-Alawi’s evidence that the medical notes did not disclose any reference to a work-related injury prior to the applicant’s consultation with Dr Mak on 2 March 2013. The judge set out part of Dr Al-Alawi’s evidence as follows:
If a patient tells me they have suffered a work-related injury, my usual practice is to ask them to notify reception of a WorkCover claim, and I would also record this in my notes.
Ms Yilmaz did not make a WorkCover claim at any of the times she was seen by me or my colleagues until March 2013. There is also no mention of a work related injury in any of my notes of 25 July 2012, 7 November 2012 and 21 November 2012. I do not believe Ms Yilmaz would have mentioned to me that she had a work related injury at any of the times she was seen by me because my notes make no mention of any work related injury or a WorkCover claim, and Ms Yilmaz did not make a WorkCover claim at any of the times she was seen by me. Nor is there any mention of a work related injury or a WorkCover claim in my colleague’s, Dr Mak’s notes on 13/10/2012, 3/12/12, 19/1/13, 9/2/13, which is around the same time she was seen by me. The first time this was mentioned was in March 2013. I did not see Ms Yilmaz since then.[11]
[10]Ibid [31]–[36].
[11]Ibid [32].
Next, the judge summarised the evidence of Dr Mak.[12] The judge referred to a medical report written by Dr Mak on 25 May 2013, in which Dr Mak stated that the applicant claimed that on 28 June 2012:
while working late in the evening by herself at her place of employment, she was trying to move a rack of clothing (weighing over 30 kilograms at least) closer to the entrance of the store, when one of the wheels suddenly came off the rack, causing the rack full of clothes to collapse. In an unsuccessful attempt to maintain the upright position of the rack, [the applicant] was trying to reposition the rack, replacing the clothes in order on the rack, when she felt pain in her back, radiating to her legs.[13]
[12]Ibid [37]–[44].
[13]Ibid [38].
The judge noted Dr Mak’s opinion, as set out in his medical report of 25 May 2013, that the applicant had suffered ‘soft tissue injuries to her back and an aggravation of her spinal conditions of lumbar spondylosis, lumbar disc bulge, and spinal canal stenosis’, and that the applicant’s employment was a ‘materially contributing factor to [her] … injuries’.[14]
[14]Ibid [39]–[40].
The judge then described some of the cross-examination of Dr Mak, including noting Dr Mak’s acceptance of the fact that the consultation on 2 March 2013 was the first occasion on which Dr Mak noted that the applicant had been involved in any work incident. Later in his reasons, the judge noted Dr Mak’s evidence in cross-examination that ‘it would be far more likely than not, that if someone gave a history of hurting his or her back at work that [fact] would be recorded’, and Dr Mak’s acceptance of the proposition that it was ‘very likely that [2 March 2013] was the first time [he] became aware of [the applicant suffering injury on 28 June 2012]’.[15]
[15]Ibid [211].
Next, the judge referred to the evidence of a number of people whose reports were tendered.[16] In this section of his Honour’s reasons, his Honour referred to Ms Van Valen’s evidence, setting out her note of the consultation of 3 December 2012.[17] He also referred to a note in an Austin Hospital report in which it was stated that the applicant had been referred to the orthopaedic surgeons at the Austin Hospital in December 2012 complaining of back pain and associated lateral right leg numbness. The judge noted a history that the applicant was alleged to have given at the Austin Hospital on 4 July 2013, when seen by the orthopaedic surgeons, of ‘progressive low back symptoms over many years, progressing over the preceding six months’.[18]
[16]Ibid [45]–[69].
[17]Ibid [53].
[18]Ibid [59].
Next, the judge referred to the various claims for compensation made by the applicant,[19] before turning to the medico-legal opinions contained in reports written between 2014 and 2017.[20] The judge then described the cross-examination and re-examination of the applicant in some detail.[21] In summarising this evidence, the judge referred to the applicant’s concession in cross-examination that, when she went on sick leave in February 2013, prior to ultimately ceasing work, the applicant told the respondent that this was ‘because of gynaecological problems’,[22] rather than because of any back condition.
[19]Ibid [70]–[73].
[20]Ibid [84]–[86].
[21]Ibid [87]–[175].
[22]Ibid [143].
Under the heading ‘Conclusion’, the judge set out, in summary form, the contentions of the parties, and then analysed their respective arguments.[23] The judge observed that the matter which had assumed the greatest prominence in the hearing was whether the applicant suffered a low back injury arising out of, or in the course of, or due to the nature of her employment with the respondent.[24]
[23]Ibid [176]–[248].
[24]Ibid [176].
The judge observed that, ‘obviously enough, in serious injury trials the credit of the plaintiff will often be critically important’.[25] He said, however, that despite the importance of credibility or reliability, it was incumbent upon the Court ‘not to disregard reliable medical evidence merely due to concerns about [the applicant’s] credibility’.[26] As the judge put it:
The case must be decided on the whole of the evidence, including objective evidence of diagnostic tests which are unaffected by the plaintiff’s credit. In particular, I refer to Cakir v Arnott’s Biscuits Pty Ltd, wherein Neave JA, delivering the major judgment of the Court, stated at paragraph [49]:
However, even if the appellant deliberately denied that he had previously suffered from back problems, an adverse finding on the appellant’s credibility did not, in my view, justify refusal of the appellant’s application. In order to conclude that the appellant was not entitled to leave to commence common law proceedings it was necessary for his Honour to analyse and give appropriate weight to all the evidence both as to the cause and as to the seriousness of the appellant’s injury. That evidence is set out above. It includes the circumstances in which the injury was reported, the appellant’s physical condition before and after the accident, evidence as to the cause of the appellant’s pain provided by diagnostic tests and the opinions expressed by the appellant’s treating doctors and the other experts.[27]
[25]Ibid [182].
[26]Ibid [183].
[27]Ibid (emphasis in original).
Ultimately, the judge concluded that the applicant was an unimpressive witness and that many parts of her evidence were ‘unreliable and lacking credit’. Specifically, the judge said:
I have had the advantage of observing the plaintiff when giving evidence. As has been pointed out by Leading Counsel for the plaintiff, I did intervene on several occasions to make sure that the plaintiff understood the question posed, gave a responsive and truthful answer to the question posed, and if she did not know the answer to the question, to say so.
Even allowing for these matters, I found the plaintiff to be an unimpressive witness and, in particular, found many parts of her evidence to be unreliable
and lacking credit — particularly in relation to the occurrence of compensable injury.I gained the impression that throughout her evidence the plaintiff was attempting to minimise any problems that she experienced with her lower back or, indeed, any psychological issues that she was experiencing prior to the commencement of her employment with the defendant. Rather, her evidence emphasised that her ongoing low back problems were caused by a work injury with the defendant. On occasion, she would assert, with some force, as to when, for example, she told the doctor that she had suffered a back injury, but under cross-examination retreated from this position to sometimes ultimately saying she did not know when, or if, she told the doctor.
In particular, I consider that distinct issues of credit do arise where, on the one hand, the plaintiff alleges that she suffered an incident of injury on 28 June 2012 during the course of her employment with the defendant (and perhaps subsequent incidents of injury), which gave rise to severe pain in the low back and referred pain to one or both legs and, on the other hand, the details of the consultations with various doctors at the Merlynston Village Medical Centre over the period of that employment, where there is no allegation of any work incident until such time that she ceases work in early 2013. Furthermore, there would not appear to be any consultations with doctors at, or around, any of the alleged incidents of injury.
Ultimately, I am not satisfied that the plaintiff has proved, as a matter of probability, she suffered a compensable back injury when employed by the defendant.[28]
[28]Ibid [184]–[188].
The judge accepted that the applicant ‘did actually experience lower back pain’.[29] He said that the applicant’s lower back pain:
probably commenced prior to her commencement of employment with [the respondent] and, indeed, based on her consultations at the Merlynston Village Medical Clinic, continued during the course of her employment with [the respondent].[30]
[29]Ibid [190(f)].
[30]Ibid.
The judge went on:
However, the critical issue is whether that pain was caused or contributed to by any ‘compensable’ injury or, rather, pain brought on by a degenerative condition in the back, as demonstrated by the plain x-rays on 14 July 2011 and the CT scan of her lumbar spine on 29 October 2012. I am conscious that such degenerative conditions can be aggravated by specific incidents or, indeed, the nature of some employment — however, as I have stated, after a
consideration of all of the evidence, I am not persuaded, as a matter of probability, that was the case in the circumstances of this matter.[31]
[31]Ibid (footnotes deleted).
The judge then set out the incidents the applicant relied upon in her serious injury application as follows:
(a)[The applicant] alleges that on 28 June 2012, during the course of her employment with the defendant, she was manoeuvring a clothes rack, when a wheel on the rack came off, causing the rack to commence to fall and the plaintiff to take the strain of the rack to keep it straight. In so doing, she suffered injury to her lumbar spine and pain to her right leg;
(b)[The applicant] alleges a further incident of injury involving her lower back in late-July/early-August 2012 as a result of a similar incident as to that which occurred on 28 June 2012;
(c)That the injury occurred as a result of the work she was performing throughout the course of her employment with the defendant from the date of her commencement on 16 November 2011 until she ceased in February 2013;
(d)A further incident of injury in September 2012, which occurred in a similar manner to that which occurred on 28 June 2012.[32]
[32]Ibid [191] (emphasis in original).
Next, the judge analysed in some detail all of the various histories given by the applicant and the differences in them.[33] In the course of this analysis, the judge concluded that the applicant had suffered low back pain for a period well prior to the commencement of her employment with the respondent and ‘that she was attempting to diminish the nature and extent of such back pain, both in her affidavit material and, indeed, [in] the various histories that she conveyed to most of the medico-legal witnesses’.[34] At Reasons [210] the judge again described in detail the applicant’s consultations with doctors at the Merlynston Village Medical Centre between 6 August 2011 and 28 March 2013.
[33]Ibid [192]–[213].
[34]Ibid [209].
The judge then again returned to the evidence of Dr Mak and Dr Al-Alawi in the following terms:
Dr Mak gave evidence that he was a qualified general practitioner who had been in practice for thirty-three years. He confirmed that he did practise at the Merlynston Village Medical Centre up until approximately the end of 2013 and that over his time there he did treat the plaintiff. Under cross-examination, and when queried by the Court, Dr Mak stated that it would be far more likely than not, that if someone gave a history of hurting his or her back at work that would be recorded. Under cross-examination the following evidence was given:
Q: And then the next time you saw Mrs Yilmaz is 2 March 2013?---
A: Yes.
Q: And on that occasion she said to you, did she, that she had been to a lawyer and that she was going to make a WorkCover claim?---
A: Yes.
Q: And she told you that she had been injured on 28 June 2012?---
A: Yes.
Q: And so you noted that that’s the first time she’d told you that information, yes?---
A: I would say that very likely, that was the first time I became aware of it.
Dr Al-Alawi was also called and gave evidence. She described herself as a practising general practitioner who, beyond the normal qualifying degree, has a Fellowship from the Australian Royal College and New Zealand Royal College as a specialist general practitioner. She confirmed that she had worked at the Merlynston Village Medical Centre in the past, and also confirmed that she made a report very recently, on 13 December 2017, at the behest of those acting for the plaintiff.
In that report, Dr Al-Alawi makes clear that she had no recollection of the various attendances by the plaintiff as recorded in the notes which were supplied to her.
Dr Al-Alawi noted that she had not seen the plaintiff for over four years. Dr Al-Alawi said in such report that she generally takes ‘full notes’ and feels confident she could rely on them. She also noted that in relation to the various consultations she had with the plaintiff there is no note of the plaintiff making a WorkCover claim, or any mention of a work-related injury. Dr Al-Alawi went on to say that she does not believe that the plaintiff would have mentioned to her that she had a work-related injury at any of the times she was seen by her, because the notes make no mention of any work-related injury or WorkCover claim.[35]
[35]Ibid [211]–[213].
The judge then said:
After a consideration of all the evidence, I find that at no time prior to 2 March 2013 was any doctor at the Merlynston Village Medical Centre and, in particular, Dr Mak and Dr Al-Alawi, informed that the plaintiff had suffered any type of work-related back injury and, in particular, any injury on 28 June 2012. Consistent with the evidence of Dr Mak and Dr Al-Alawi, I consider it more probable than not that if either or both of those doctors had obtained a history of a work-related incident, it would have been recorded in the notes.
It is also to be noted that there is little correspondence between the dates of the alleged injuries and attendance on the general practitioners. The first consultation after the alleged injury on 28 June 2012 was nearly four weeks later with Dr Al-Alawi, and for reasons unconnected with back injury or back pain but, rather, gynaecological issues. Similarly, the next consultation on 18 August 2012, which would seemingly encompass the alleged ‘second incident’ about a month or so after 28 June, was to review the results of the gynaecological testing.
Of course, it is not the situation that the plaintiff never reported symptoms of back pain — clearly she did — but in no way were they related to any incident of work injury.
This must be compared to the first affidavit of the plaintiff, wherein the overwhelming ‘flavour’ of the affidavit is that the plaintiff suffered a work-related injury on 28 June 2012, and thereafter suffered symptoms causing her to seek treatment, initially from doctors at the Merlynston Village Medical Centre and, later, specialist treatment involving physiotherapy and the attendance on orthopaedic surgeons. Such is not borne out by the available material.
Although one may comprehend a worker not telling his or her employer about a work-related injury (as was sometimes suggested by the plaintiff), because of a variety of matters — perhaps the most obvious being job security — it is difficult to contemplate why there would be no mention to her treating doctors as to the cause of such pain, other than the obvious one — that such pain is not work-related.
Of course, in the circumstances of this matter, the plaintiff did assert that she told, in particular, Dr Al-Alawi and Dr Mak, of the work-relatedness of her condition from early days.[36]
[36]Ibid [214]–[218].
The judge then rejected submissions made on behalf of the applicant that the notes and history recorded by Dr Al-Alawi on 7 November and 21 November 2012 were ‘deficient in failing to record [the applicant’s] complaint of back pain or work injury’.[37]
[37]Ibid [219]–[221].
The judge then turned to the evidence of Ms Van Valen and her note of 3 December 2012.[38] It is this part of the judge’s analysis that contains what are said to be the critical paragraphs of his Honour’s reasons that are sought to be impugned by the applicant in grounds 1 to 5. At Reasons [225]–[226], the judge said:
Unfortunately, Ms Van Valen was not called to give evidence at the trial and it is not clear why this note dated 1 March 2013, addressed ‘To whom it may concern’ came into existence, bearing in mind that the plaintiff last saw Ms Van Valen on 21 February 2013. Furthermore, it is not clear when the handwriting on the original document was added to that document.
Given all the evidence surrounding this issue, I tend to the view that the plaintiff probably did not raise the alleged incident of injury on 28 June 2012 until sometime in 2013 — thus the scribbled notes across the original documentation and the ‘To whom it may concern’ letter dated 1 March 2013.
[38]Ibid [222]–[226].
Next, the judge returned to analysing the applicant’s evidence, comparing what she said in her affidavits, with the histories she had given and with the evidence she gave at trial.[39] Having identified various inconsistencies in the applicant’s accounts, the judge rejected evidence that the applicant gave at trial that on 29 June 2012 she rang her manager and told her of the incident that occurred on 28 June. He also rejected evidence the applicant gave about the amount of Zoloft she had taken at particular points in time.
[39]Ibid [227]–[243].
The judge returned again to the issue of the applicant’s reliability, saying:
Ultimately, I have found the plaintiff to be generally unreliable, and in many areas, not creditable. Her reliability and credibility are important in determining whether or not a compensable injury occurred. It is to be noted that all the medico-legal specialists are reliant on what she asserts her history was and, in particular, whether she suffered incidents of injury during the course of her employment and whether the nature of her work caused worsening symptoms. Such opinions are of no weight if such histories are wrong. In this respect, I also note that Dr Mak ultimately wrote a report on 25 May 2013, supporting the plaintiff on the basis of what he refers to as the ‘alleged work-related injuries’ and the ‘claim’ of the plaintiff that she suffered injury on 28 June 2012. Again, clearly enough, such opinion stands or falls on the allegation of injury on 28 June 2012 being correct.[40]
[40]Ibid [244].
The judge concluded his reasons with what he regarded as ‘the most critical issue’ in the case — the applicant’s failure to tell any of the doctors at the Merlynston Village Medical Centre of any work-related injury until early 2013. As the judge put it:
To my mind, this is perhaps the most critical issue, in that the plaintiff, notwithstanding her assertions to the contrary, never informed any of the doctors at the Merlynston Village Medical Centre of the injury on 28 June 2012 — or, indeed, any other injury at the employer’s premises — until early 2013. This is in the context that if one accepts her assertion that she suffered immediate and dramatic pain following the incident on 28 June 2012, and continued to suffer such pain but ‘battled on’.[41]
[41]Ibid [246].
In the result, the judge concluded that he was not satisfied that the applicant had suffered a compensable back injury, and that the application therefore had to be dismissed.[42]
[42]Ibid [247]–[248].
Parties’ contentions
In her written case, the applicant argued all of her proposed grounds of appeal under the one heading. The applicant commenced her written case by noting that it was her submission at trial that ‘she was an honest but unreliable witness rather than a dishonest witness’. The applicant then relied upon what she submitted were a series of cases that supported the proposition that ‘creditable objective evidence is capable of overcoming unreliability or a want of credit’. The cases relied upon which were said to support this proposition were Cakir v Arnott’s Biscuits Pty Ltd,[43] Grace v El-Masri,[44] Sejranovic v Berkeley Challenge Pty Ltd,[45] Mazevska v Transport Accident Commission[46] and Davies v Nilsen.[47]
[43][2007] VSCA 104 [49].
[44][2009] VSCA 111.
[45][2009] VSCA 108.
[46][2014] VSCA 174.
[47][2014] VSCA 278.
The applicant then submitted that there was credible objective evidence that she suffered injury in the course of her employment with the respondent. She identified that evidence as follows:
·the history of compensable injury given to Ms Van Valen on 3 December 2012;
·the written opinion of Dr Mak, in his report of 25 May 2013, that the applicant had sustained compensable injury;
·the applicant’s complaints of increased clinical symptoms, and radiological evidence consistent with a compensable injury;
·the applicant’s increased medication intake to Panadol Osteo 2–3 tablets daily, Tramadol 100 mgs as needed and Panadeine Forte 4 tablets daily;
·the ‘stark contrast’ between what the evidence demonstrated as to complaints of spinal pain prior to 28 June 2012 with what the evidence disclosed after that day; and
·the ‘firm evidence’ of the applicant that she informed both Dr Mak and Dr Al-Alawi that she suffered back pain as a result of an injury at work, before that fact was noted by Dr Mak on 2 March 2013, coupled with ‘deficiencies’ in the medical notes — which were exemplified by Dr Al-Alawi’s referral letter of 7 November 2012 incorrectly stating that the applicant was not working as at that time.
The applicant submitted that, contrary to the finding of the judge,[48] Dr Mak’s opinion in his report of 25 May 2013 that the applicant had sustained compensable injury in employment with the respondent, ‘did not stand or fall simply upon the issue of the applicant’s history’. It was submitted that Dr Mak’s opinion was also informed by his experience and expertise as a general practitioner, following examination of the applicant, and by reference to a comparison of radiological evidence before and after the claimed compensable injury, and of the increased treatment required contemporaneously with the claimed compensable injury.
[48]Reasons [244].
The applicant’s reference to a comparison of the radiological evidence is a reference to a comparison between the plain X-ray performed on 14 July 2011 (before the alleged incident on 28 June 2012), on the one hand, and a CT scan performed on 29 October 2012 and two MRIs performed on 17 July 2013 and 8 January 2015 (all performed after 28 June 2012) on the other hand. Specifically, the applicant notes the differences in the reporting of findings at the L3/4 level before and after 28 June 2012. In summary:
(a) the plain X-ray performed on 14 July 2011 was reported as showing a first grade anterolisthesis at the L5/S1 level, with no other significant abnormality;
(b) the CT scan performed on 29 October 2012 was reported as showing, amongst other things, a moderate central canal stenosis secondary to an annular disc bulge at L3/4 with ligamentum and facet hypertrophy;
(c) the MRI performed on 17 July 2013 MRI was reported as showing:
At L3/4, there is moderately marked vertebral canal narrowing, secondary to a moderate sized broad-based disc bulge, local ligamentum flavum hypertrophy and adjacent L3/4 facet joint osteoarthropathy. The intervertebral foramina are mildly narrowed by the disc and facet disease. In addition, there is narrowing of the lateral recesses bilaterally which results in probable compression of the bilateral traversing L4 nerve roots.
(d) the MRI scan performed on 8 January 2015 was reported as showing:
At L3/4, note is again made of a generalised disc bulge, bilateral facet joint degenerative disease and ligamentum flavum hypertrophy. These all contribute to moderately severe central canal stenosis, slightly worse when compared with the prior MRI from 2013, with greater crowding of the cauda equina nerve roots at this level. There is also persistent effacement of the subarticular space bilaterally, likely causing compression of the descending L4 nerve roots. There is moderate narrowing of the right L3/4 neural exit foramen, however there is no evident distortion of the exiting right L3 nerve root and this appearance is stable since the 2013 examination. The left neural exit foramen is capacious.
In her written case, the applicant identified the following matters as ‘verifying the applicant’s credit particularly with respect to reportage of injury’:
·the 3 December 2012 note of Ms Van Valen;
·the failure by the respondent to adduce surveillance evidence referred to in the index to its court book; and
·the failure by the respondent to adduce affidavit evidence disputing or denying the occurrence of compensable injury reported either by telephone on 29 June 2012, or in person to the manager on 3 July 2012 (as stated in the applicant’s WorkCover claim form of 9 March 2013, and the letter attached thereto).
Central to the applicant’s submissions was a complaint that the judge was wrong to conclude that Ms Van Valen’s note of 3 December 2012 was not made until sometime in 2013. It was submitted that there was no basis for this finding, nor any basis for the judge ‘sidelining’ this ‘pivotal’ and undisputed evidence. The judge should have accepted this evidence. Moreover, when this evidence was accepted and combined with all of the evidence, the judge ought to have then concluded that the applicant suffered compensable injury in the course of her employment with the respondent.
In essence, the applicant’s submission was that the trial had been conducted on the basis that Ms Van Valen’s note of 3 December 2012 was ‘pivotal’ to the applicant’s claim, being a document which:
objectively verif[ied] matters relevant to the central issues for determination, and thereby [the applicant’s] credit, particularly with respect to reportage of injury.
From Ms Van Valen’s note, it was then submitted that Dr Al-Alawi’s referral, containing the statement ‘occupation: not working’, was wrong. From there it was submitted that the notes of the Merlynston Village Medical Centre were incomplete, inaccurate and unreliable, and that the judge should have inferred (consistently with all of the evidence) that the applicant, contrary to the findings he made, actually told her general practitioners, when she consulted them in July, August and October 2012, that she had suffered a lower back injury in the course of her employment.
In amplification of this submission, the applicant contended that Dr Al-Alawi’s written referral of the applicant to Ms Van Valen showed that the applicant’s general practitioners did not know that the applicant was working in the second half of 2012, and thus they had failed to record the applicant’s actual history given by her that she was working and had suffered injury in the course of her work.
In its written case, the respondent accepted that, having regard to the way the case was conducted by the parties, the judge should have accepted that Ms Van Valen’s note of 3 December 2012 was made on that day. The respondent submitted, however, that the application for leave to appeal should be dismissed because the judge’s failure to accept that this note was made on 3 December 2012 was ‘not material to the order dismissing the [applicant’s] serious injury application’.
The respondent contended that the judge’s comprehensive findings on the applicant’s credit and the occurrence of compensable injury were not materially affected by his treatment of Ms Van Valen’s notes. Moreover, once the judge made the adverse credit finding he made in relation to the applicant, the dismissal of her application ‘was inevitable because the evidence adduced at the hearing was incapable of supporting any other outcome’.
The respondent also submitted that Ms Van Valen’s note did not materially affect the judge’s finding that the applicant was a discreditable and unreliable witness, or his related finding that the applicant did not suffer compensable injury in the course of her employment with the respondent. Those findings, it was submitted, were based on numerous factors, including:
·the judge’s unfavourable impression of the applicant as a witness;
·the applicant’s repeated attempts to minimise her pre-existing back and psychological conditions;
·the judge’s finding that the applicant had not informed her treating general practitioners that she had suffered any type of work-related injury until 2 March 2013, some eight months after the alleged incident on 28 June 2012;
·the applicant’s failure to consult doctors at, or around, the time of the alleged incident of 28 June 2012;
·the applicant’s failure to report any back injury to the respondent until she lodged her WorkCover claim form in early March 2013;
·the fact that the applicant had no time off work for any back injury during the period of her employment with the respondent; and
·the fact that the applicant had told the respondent in February 2013 that she needed to take personal leave for reasons unconnected with her lower back condition.
Additionally, the respondent submitted that the application for leave to appeal could not succeed in light of the judge’s rejection of the applicant’s evidence that she was not suffering from any back injury or condition at the time she commenced her employment with the respondent. The judge’s rejection of that evidence, and his finding that the applicant suffered low back pain commencing before the start of her employment with the respondent,[49] was said to well-support the judge’s ultimate decision that he was not satisfied that the applicant suffered a compensable lower back injury during the course of her employment with the respondent.
[49]Ibid [190(f)], [209].
In a further submission in support of its contention that leave to appeal should be refused, the respondent referred to the applicant’s applications for a disability support pension made, first, in May 2010 (before she commenced employment with the respondent) and, secondly, in January 2013 (after she had suffered her alleged injury).
Specifically, the respondent noted that in the January 2013 application (made because of medical conditions unrelated to the applicant’s lower back), the applicant’s lower back conditions (referred to as spinal stenosis and lumbar disc bulge) were referred to as conditions that were ‘generally well managed and that cause minimal or limited impact on ability to function’. Thus it was submitted that even if one took a favourable view of compensable injury so far as the applicant was concerned, the applicant’s claimed injury could not meet the ‘at least very considerable’ test set out in s 134AB(38) of the Act.
Analysis
The applicant’s principal claim was that she suffered a serious injury to her lower back at work on 28 June 2012. Notwithstanding that claim, however, the judge found that for some months the applicant did not consult any medical practitioner in relation to this alleged injury. More specifically, the judge concluded that the evidence showed that while the applicant consulted her general practitioners on a number of occasions between July and November 2012 for various medical complaints, she did not give any history of suffering a back injury in the course of, or as a result of, her work.
The judge provided detailed and comprehensive reasons why he did not accept the applicant’s evidence that she suffered a compensable injury in the course of her employment with the respondent. In those reasons, the judge correctly observed that in serious injury trials the credit of the plaintiff will often be critically important.[50] The judge went on, however, to observe (again, correctly) that despite the importance of credibility or reliability, it was incumbent upon the Court not to disregard reliable medical evidence merely due to concerns about the applicant’s credibility. The case had to be decided on the whole of the evidence.[51]
[50]Ibid [182]. See also Mobilio v Balliotis [1998] 3 VR 833, 836; Palmer Tube Mills (Aust) Pty Ltd v Semi [1998] 4 VR 439, 448; Gjorgovska v AFM Cleaning Services Pty Ltd [2006] VSCA 104 [27]; Veljanovska v Verduci (2014) 42 VR 222, 231–2 [39]–[40]; Fenton v AIA Australia Ltd [2017] VSCA 331 [91]; Petrovic v Victorian WorkCover Authority [2018] VSCA 243 [74] (‘Petrovic’).
[51]Reasons [183].
The judge’s reasons for not being satisfied that the applicant suffered a compensable injury in the course of her employment with the respondent were powerful and compelling. Moreover, the judge had the benefit of seeing and hearing both the applicant and her two general practitioners. There is no basis for this Court to conclude that the judge’s assessment of the applicant and her general practitioners involved any error. In our view, the judge’s assessment of the witnesses he saw and heard was well open and accorded with such objective evidence as there was about the circumstances surrounding the applicant’s claims of injury.
That said, the judge should not have ‘tend[ed] to the view that [the applicant] probably did not raise the alleged incident of injury on 28 June 2012 until sometime in 2013’ with Ms Van Valen. There was no basis for that observation — although it should also be noted that what the judge said[52] did not constitute a positive finding that the applicant did not give the history Ms Van Valen recorded on the date it was recorded in December 2012.
[52]At Reasons [226].
The critical reason for the judge rejecting the applicant’s case that she sustained a compensable injury to her lower back in the course of her employment was the judge’s conclusion that the applicant had not given any such history to her treating general practitioners at times when one might reasonably have expected her to have given such a history had she sustained injury in the circumstances she now claims. The judge’s musing about whether Ms Van Valen’s note of a 28 June 2012 accident was made some time in 2013, rather than on 3 December 2012, was not material to the judge’s reasoning showing why he concluded that the applicant had failed to persuade him that she had sustained a relevant compensable injury.
Further, even if the judge accepted, as was the fact, that the applicant had told the physiotherapist in December 2012 that she had sustained an injury in June 2012, it is untenable to contend that this would have affected the judge’s conclusion that the applicant had not told her general practitioners about the injury until some time in 2013. It was this finding, and not the position regarding Ms Van Valen that the judge considered was critical to his decision.[53] The error that the applicant fastened on provides no basis for this Court overturning the judge’s critical findings of fact.
[53]Ibid [246].
The applicant’s submissions concerning Dr Al-Alawi’s written referral to Ms Van Valen suffer from the problem that the referral document appears to be one that was compiled over time. It is unclear from the document (and there was no evidence called about this at trial) of the date upon which the information that the applicant was not working was first inserted into the document. On the face of the document, it appears that a template of it was first created in March 2006; and from that time it has been updated by the insertion of the applicant’s contemporaneous medical complaints and the recording of various prescriptions from time to time.
In any event, the fact that Dr Al-Alawi (and by extension Dr Mak) may not have known that the applicant was working in November 2012 does not materially assist the applicant. If the applicant’s general practitioners did not know that the applicant was working in November 2012 then, contrary to the applicant’s submissions, this may reinforce the proposition that the applicant never gave a relevant history of any work-related injury to them.
Additionally, if one accepted that there was some deficiency or inaccuracy in Dr Al-Alawi’s written referral, we are unable to see how it could be contended that the judge should somehow have inferred (either from Ms Van Valen’s note alone or from that note coupled with this so-called deficiency or inaccuracy) that the applicant reported her work-related lower back injury to her general practitioners at or about the time of, or shortly after, its occurrence.
Further, contrary to the submissions of the applicant in this Court, neither the subsequent opinion of Dr Mak (set out in his report of 25 May 2013), nor the radiological evidence, nor any of the other evidence tendered at trial,[54] required the judge to conclude that the applicant sustained a compensable injury on 28 June 2012 or otherwise in the course of her employment with the respondent.[55] Dr Mak’s opinion in his report of 25 May 2013 that the applicant’s employment ‘was a material contributing factor to [her] injuries’, and his assertion that ‘there was an incident [that] happened at work during [the] course of [her] employment on 28 June 2012’, could only be based upon the applicant’s history — plainly, given to Dr Mak many months after the alleged incident. Dr Mak’s opinion was, on any view, heavily dependent upon the acceptance of the applicant’s account.[56]
[54]Including the affidavit evidence of the applicant’s daughter and friend, which was not specific as to dates or onset of the applicant’s alleged symptoms.
[55]See Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598, 1609 [60]; Petrovic [2018] VSCA 243 [74].
[56]Ibid.
While credible objective evidence external to a plaintiff, whose reliability or credibility has been successfully challenged, may be capable of founding an ultimate conclusion in that plaintiff’s favour in certain circumstances, there was no evidence of such a kind in the present case. That is, while there was evidence tendered at trial that had the capacity to be viewed as supportive of the applicant’s case on compensable injury, the judge was entitled to conclude that, on the whole of the evidence, the applicant had failed to establish that she had sustained a compensable injury to her lower back. Moreover, in our view, the judge was entitled to so conclude, essentially for the critical reason that the evidence did not support a conclusion that the applicant sought any treatment for a work-related lower back condition at any time in the months following her alleged injury on 28 June 2012.
Conclusion
The applicant’s proposed appeal has no real prospect of success. Accordingly, leave to appeal must be refused.
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