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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
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REASONS FOR DECISION
HIS HONOUR:
Introduction
1. 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.
2. 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.
3. 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.
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4. 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;
5. 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.
6. 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.
7. 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 Ltd1 (1991) 171 the High Court referred to
the application of common sense in the assessment of causation.
1 (1991) 171 CLR 506
4
The plaintiff
8. 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.
9. 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.
10. More than 3 months after ceasing her employment and on 28 April 2014 the
plaintiff completed a Worker’s Injury Claim Form2. The Worker’s Injury
Claim was rejected on behalf of the defendant by notice dated 21 May 2014.3
11. On 26 March 2015 the plaintiff lodged a further Worker’s Injury Claim Form
dated 26 March 20154. On 22 April 2015 the further work claim too was
rejected.
12. 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
13. 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
2 Ex D6
3 Ex D18
4 Ex P10
5
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.
14. 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 falls5”. 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.
15. The x-ray of the plaintiff’s lumbosacral spine was unremarkable as was the x-
ray of the plaintiff’s pelvis – left hip.
16. 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”.
17. 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”.
18. 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.
19. 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.
20. 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.
5 References in italics are reproduced from clinical notes
6
21. On 17 February 2014 the plaintiff attended the Woodley Waters Medical
Centre6 with left sciatica and bilateral foot pain with the clinical note stating,
(“Bilateral foot pain. Left hip pain left sciatica.? Neuropathic ? disc prolapse
Hypertensive) .
22. On 27 February 2014 an MRI of her lumbar spine was performed. The
commentary by the radiologist identified as follows7:
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.
23. On 3 March 2014 the plaintiff attended for a “long consultation” with Dr
Amalan who recoded in a note8:
“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”
24. On 16 April 2014 some months after the plaintiff’s employment had
concluded the plaintiff was given a certificate of incapacity that read, “patient
6 Ex D5 Clinical Record
7 Ex P8
8 Ex D5
7
has severe lower back pain which has been aggravated due to her work which involves
prolonged standing.”
25. In December 2014 the plaintiff was admitted to Dandenong Hospital for 5
days. On 11 December 2014 an MRI of the spine was performed.
26. In January 2015 the plaintiff was admitted to Dandenong Hospital for 3 days.
27. In March 2015 the plaintiff underwent an injection to her lower back.
28. On 26 March 2015 the further claim was lodged and on 22 April 2015 a
rejection letter was received.
29. 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
30. The plaintiff’s Claim Form dated 28 April 20149 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”.
31. The Claim Form was rejected by notice dated 21 May 201410. 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
9 Ex D6
10 Ex D18
8
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
32. 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.
33. 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.
34. 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’”.
35. 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
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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”.
36. 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
37. 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.
38. 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
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the balance of her shift spent on duty in and around the self-service
checkouts. She said she “loved my job”.
39. 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
40. 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.
41. 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.
42. 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.
43. 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.
11
44. 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.
45. 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.
46. 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.
47. 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
48. 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
12
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.
49. 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 summary11 identified the
diagnosis on discharge as, “Left Hip/Buttock Pain, Gout Acute on Chronic Renal
Failure Supratherapeutic Paracetamol Level”.
50. 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
51. 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.
52. 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
11 Ex D4
13
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.
53. 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”.
54. 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.
55. 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.
14
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.
56. 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.
15
57. I am not satisfied that the contemporaneous medical records support the
plaintiff’s reliance on employment for injury.
58. 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.
59. 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.
60. 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.
61. On 27 February 2014 the plaintiff underwent an MRI of her lumbar spine.
62. 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.
63. 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.
16
64. 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.
65. 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
…
66. In April 2015 the plaintiff was again admitted to Dandenong Hospital for 14
days and the plaintiff had injection to her lower back.
67. 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.
68. 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
17
inference either favourably or unfavourably based on the plaintiff’s physical
presentation in the witness box over a finite period of time.
69. 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.
70. 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
71. 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
72. Dr Amalan from the Woodleigh Waters Medical Clinic made reports of 8 May
2014, 30 July 2014 and 21 December 201512 . 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
12Ex P5
18
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”.
73. 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”
74. 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.
19
…
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
75. Dr Awad, neurosurgeon, provided a report at the request of the plaintiff’s
solicitor’s dated 30 October 201513. 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
20
76. 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
77. 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.
78. 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.
79. 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
21
MRI performed and she received steroids and painkillers for the back pain
and left and right leg pain. She was discharged home.
80. 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.
81. 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.
82. 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;
22
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.
83. 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.
84. 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
23
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 14and 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
85. 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.
86. 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.
87. Mr Barton noted that the plaintiff is significantly overweight.
88. 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
14 My emphasis
15 Ex D11
24
caused by her work or that the plaintiff’s work caused the onset of her
symptoms.
89. 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
90. 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.
91. 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.
25
92. 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.
93. 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”.
94. In cross-examination Korman accepted that the plaintiff was “an excellent
worker” and that she was “very popular”.
95. 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.
96. Korman did not waiver in her evidence under cross examination that she had
never been told of back pain by the plaintiff.
97. 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.
26
The complaint of sexual harassment
98. 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.
99. 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.
100. 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.
101. 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.
27
102. 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
103. 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”.
104. 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.
105. 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 Dunkel16 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
16 (1959) 101 CLR 298
28
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
106. 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.
107. Lightfoot is Store Manager, Prahran Coles but previously had been employed
as Store Manager at Dandenong.
108. 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.
109. 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.
29
110. 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
111. 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.
112. 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”.
113. 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
114. 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
30
continues to be a significant contributing factor to ongoing pain, disability
and requirement for treatment.
115. 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.
116. 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
117. 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”
118. 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.
119. In my evaluation of the evidence I have had regard to the nature of the
legislation, being an enactment that is beneficial in nature.
31
Reasoning
120. 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”.
121. I prefer and accept the analysis by Mr Jones.
32
Significant contributing factor
122. 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 injury17. 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
33
123. In Allman v. Major Finance and Engineering Pty Ltd18 Judge Strong described
“significant’ as meaning “of considerable amount or effect”.
124. 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
125. 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
18 (County Court, judgment 14 March 1997)
34
(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.
126. 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.
127. 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
35
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.
128. 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.
129. 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.
36
130. 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.
131. 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.
132. 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
37
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.
133. 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.
134. 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
38
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)
135. At the date of reservation of my reasons for decision an appeal in Jarvis v The
Salvation Army Southern Army Southern Territory19 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
136. 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.
19 [2016] VSC 34 (Riordan J)
20 [2016] VSCA 175
39
137. I invited submissions from the parties arising from the decision of the Court
of Appeal in Jarvis. Notes by way of submission were received21. I have given
them consideration.
138. 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 expenses22 but pleaded in
its defence that the question was not open to be heard and determined.
139. 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”.
140. 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—
21 By the plaintiff dated 5 September 2016 and by the defendant on 6 September 2016
22 Ex D17 and D18
40
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
141. 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.
142. Mr McKenzie submitted24 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.
143. 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
23 [MMC] 3 October 2014
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.
41
decisions made by the employer, its agent or the Authority? The decision of
the Court of Appeal offers guidance on the matter.
144. 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.
145. 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.
146. 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.
147. 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.
148. 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 said25:
“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.
25 At para [31]
42
Misconduct unrelated to incapacity
149. 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.
150. 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.
151. 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
43
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.
152. 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
153. 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.
44
154. 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.
155. 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.
156. For the reasons stated above the plaintiff’s claim is dismissed. I will hear the
parties on the question of costs.