Filipovski v Ogemi Services Pty Ltd & Anor [2009] VSCA 230

Filipovski v Ogemi Services Pty Ltd & Anor [2009] VSCA 230 - VSCA 2009 case summary — Zoe

[56]

The lumbar intervertebral disc consists of two differing types of structures, firstly a fluid containing soft and oval shaped central nucleus, surrounded by a strong fibrous elastic and interwoven outer casing or annulus of considerable thickness and forming the bulk of the disc itself. A disc rupture occurs because this liquid containing nucleus is forced, usually backwards, through some layers of this outer annulus, weakening the strength of the annulus in this direction and producing some low backache only. Because the disc is in a 'sealed unit' no repair process can take place as the body's repair processes cannot enter the disc so each rupture of these annular fibres does not heal, but the backache from the initial commencement of the rupture may well settle down.

Following the next bending and lifting incident the weakened portion of the annulus can suffer an additional progression of the rupture and more backache can be produced, each lifting or bending incident causing some progression of the rupture of these annular fibres. The backache becomes more troublesome and a further incident may well increase the split or rupture in the annular fibres to the point where the remaining intact fibres will bulge backwards when the disc is loaded by the nucleus pushing backwards and suddenly this bulging disc may contact and irritate or compress the passing nerve roots to the lower limb and for the first time the backache is accompanied by sciatica. Such an incident occurred with Mrs Filipovski on 7/6/2000 when she awoke with severe left sciatica.

Therefore, Mrs Filipovski's condition prior to 20/10/1999 was that of a minor split in her L5-S1 lumbar disc, enough to produce some lower backache so that she notified her employer but of a minor enough nature to allow her to continue with her full and usual cleaning work.

From Mrs Filipovski's history of the events surrounding her back injury her employment from 20/10/99 up until 7/6/2000 certainly aggravated, accelerated and exacerbated her lumbar disc rupture to the point where the disc rupture had progressed almost through the casing of the annulus so that the remaining annulus was sufficiently weakened and thinned to start irritating the cauda equina nerve roots passing down to the left behind this disc bulge and so for the first time she developed severe left sciatica on 7/6/2000.

I consider the employment beyond 20 October 1999 seriously aggravated, accelerated and exacerbated her back condition and had she ceased work or even been able to continue with light and limited work beyond September 1999 this aggravation, acceleration and exacerbation of her back condition may well not have occurred and subsequent treatment including operation may not have been necessary.

... I consider that the post 20/10/1999 work produced the additional advancement of her lumbar spinal injury and contributed to Mrs Filipovski's current condition.

I consider the condition of Mrs Filipovski's lumbar spine prior to 20/10/99 may have resolved or considerably improved, had she not continued with her normal and heavy cleaning work, by either ceasing work or continuing light and limited work without bending and heavy lifting situations beyond that date.

The consequences [of] her back condition after the period of employment from 20/10/99 to 6/6/2000 were profound, produced increased back pain and then left sciatica, requiring her to go off work and ultimately after appropriate investigation and considerable delay, required operative fusion.

[274]

(1) The plaintiff is aged fifty, and was employed as a lounge attendant at the Qantas Club by the first defendant from November 1997.

(2) On 26 September 1999, in the course of her employment the plaintiff was lifting a heavy tray of glasses when she suffered a disc prolapse at L5-S1. She experienced pain in the back, shoulder, and referred pain into the left leg. She was treated by Dr Irani, and ultimately returned to work on 6 October 1999.

(3) She continued in her employment with the first defendant at the Qantas Club from the period of early October until 6 June 2000. During that period the plaintiff received no medical treatment for her back, nor did she take medication, although she did continue to experience symptoms of back pain from time to time.

(4) In the course of her employment for the first defendant during that period, there was no specific incident at work which resulted in further injury to the plaintiff's low back.

(5) On 6 June 2000, at approximately 5 am when she was getting out of bed at her home, the plaintiff suffered an aggravation of the injury to her low back on 26 September 1999 and this aggravation involved symptoms of low back pain and referred pain into her left leg.

(6) The plaintiff consulted a general practitioner on 6 June 2000, but apart from two further days at work she has not worked again since 13 June 2000.

(7) An MRI and CT scan of the plaintiff's lumbar spine carried out on 4 July 2000 and 22 June 2000 respectively revealed a large and left-sided L5-S1 lumbar disc prolapse with displacement and probable compression of the left S1 nerve root.

(8) Operative treatment was finally carried out on 8 May 2003 by Mr Brian Barrett, involving decompression of L5-S1 and an inter-transverse type fusion. The operation was a success, and fitted the plaintiff for return to lighter forms of work.

(9) I am not satisfied that the plaintiff suffered compensable injury on or after 20 October 1999 with the first defendant.

(10) Any pain and loss of function the plaintiff has experienced in respect of her low back on or after 20 October 1999, is a consequence of the compensable injury the plaintiff suffered on 26 September 1999 which was aggravated in non-compensable circumstances on 6 June 2000.

[294]

The court effectively said that, where the injury has its foundation in circumstances that were referable to the worker's employment prior to the due date but continued to evolve thereafter, it was for the worker to identify, for the purposes of sub-s (1), the compensable injury in respect of which he or she claims to be entitled to compensation and establish that it is referable to employment on or after the due date, but not before it. The court did not say, however, that merely because the injury had its foundation in the work environment prior to the due date and has been ongoing it necessarily means that the plaintiff was 'out of court' for the purposes of sub-s (1). Ashley JA explains, there is an important difference between injury and the consequences of injury. Whether the injury is compensable and whether it occurred post the due date are questions of fact that must be determined by reference to the circumstances of the particular case. Thus for example, it may be that an injury that had its onset in the work place some years prior to 20 October 1999 and was 'ongoing' or evolving, but which only manifested itself, say, at the end of 1999, would not be regarded for the purposes of sub-s (1) as a compensable injury that relevantly occurred after the due date. On the other hand, as his Honour makes clear by reference to the likely scenario in this case, although the appellant may have sustained injury - even a compensable injury and one that was 'ongoing' - before the due date, the evidence may nevertheless show that the injury, as distinct from a manifestation of an earlier injury, in respect of which the worker became 'entitled to compensation' within the meaning of sub-s (1), was sustained after the due date.

Be that as it may, I consider that, in the present case, for the reasons given by Ashley JA, the trial judge did not adequately address the question whether, on or after the relevant date, the appellant suffered compensable injury that resulted in or contributed to consequences that constituted serious injury. It follows that the decision cannot stand and, for the reasons given by his Honour, the matter should be remitted to the County Court for determination.[111]

At a glance

Court

Decision date

Before

Source

Judgment (448 paragraphs)

Filipovski v Ogemi Services Pty Ltd & Anor [2009] VSCA 230 (9 October 2009)

Parties

Legislation Cited (12)

Cases Cited (10)