Delaney v VWA [2025] VSCA 59

Delaney v VWA [2025] VSCA 59 | Case summary | Zoe

[6]

Paul Delaney, the applicant, sustained an injury to his lower back in the course of his employment between October 2016 and October 2019. Mr Delaney sought leave to issue a common law claim for pain and suffering damages against his employer pursuant to s 335 of the Workplace Injury Rehabilitation and Compensation Act 2013 ('the Act').
Under s 325(2)(c) of the Act, Mr Delaney needed to demonstrate that he had sustained a 'serious injury'. This required him to prove that the consequences of the impairment produced by the injury to his lower back were 'more than significant or marked, and as being at least very considerable'.[1]
Mr Delaney's application was heard before Judge Myers in the County Court on 18 and 19 April 2024. In her judgment of 7 June 2024, the judge determined that Mr Delaney had not established that the permanent impairment consequences of his spinal condition met the serious injury threshold and dismissed his application.[2]
Mr Delaney had argued that it was a simple case. The lower back injury (which was either an aggravation of existing lumbar spondylosis or, alternatively, a frank L5-S1 disc disruption) had effectively left him with, in the vernacular, a permanent light work back which had significant consequences for him. This, it was said, satisfied the statutory test.
The respondent, the Victorian WorkCover Authority ('VWA') had argued that Mr Delaney's testimony as to his level of impairment should not be accepted. It also said that his other ailments (issues with his upper back, psychological impairment and injury to his knees) meant that it was difficult, if not impossible, to identify the consequences resulting from the subject injury and whether they satisfied the statutory test.
The judge accepted VWA's contention as to Mr Delaney's credibility and found that Mr Delaney was an unsatisfactory witness who, despite having genuine symptoms related to the lower back injury, had overstated the extent of his asserted disability and failed to satisfy the statutory test. She dismissed his application.
Mr Delaney now seeks leave to appeal that decision, essentially on the basis that the judge's conclusion was wrong.

[14]

In his first affidavit, Mr Delaney relevantly deposed as follows.
He was born on 8 February 1983 and was 40 years of age at the time of affirming his affidavit.
In approximately October 2016, Mr Delaney commenced casual employment with Dormakaba as a process worker involved in the manufacture of door openers. This job required repetitive, heavy, strenuous, and awkward physical labour in working on door openers.
In February 2017, Mr Delaney became a full-time employee of Dormakaba, and worked as a team leader in despatch between 2017 and 2019. Mr Delaney often experienced an ache in his back as a result of the strenuous nature of his job and frequently went home stiff and sore, though this usually went away by morning.
On a Friday in March/early April 2019, Mr Delaney felt a twinge of pain in his buttocks when lifting one of the door openers and by the end of the shift he had stiffness and soreness in his buttocks which increased that night. After reporting this issue to his employer, he was taken to see the company's general practitioner, Dr Prakash.
Dr Prakash initially prescribed Valium, Panadol Osteo and Mobic, and recommended that he see a physiotherapist at the clinic, which he did so. He continued to consult Dr Prakash but more recently had not seen him often because it was his understanding that there was 'not a great deal more' that either he or specialist practitioners could do for him.
After undergoing an MRI in June 2019, Mr Delaney was referred to pain specialist Dr Du Toit, who recommended a series of procedures: a right L5-S1 facet joint injection and a right L3-4-5 medial branch block in August 2019; a right L3-4-5 medial branch nerve control block and sacroiliac joint injection in October 2019; a right L-3-4-5 medial branch control block in December 2019; and a lumbar radio frequency neurotomy in February 2020.
None of these procedures brought about significant or lasting relief and Mr Delaney was prescribed Endep medication to help with what Dr Du Toit described as 'neuropathic pain'.
In April 2020, after undergoing another MRI, Dr Du Toit prescribed a topical cream containing ketamine, gabapentin, and amitriptyline in an attempt to desensitise Mr Delaney's lower lumbar spine.
In May 2020, Mr Delaney was referred to Mr Res Rahim, an orthopaedic surgeon. Mr Rahim referred him for an x-ray of his lumbar spine and an isotope bone scan of the lumbar spine and pelvis with SPECT CT in June 2020. Following these scans and a further appointment with Mr Rahim, Mr Delaney understood that whilst surgery was a possibility, there was no guarantee of success.
In June 2020, Mr Delaney underwent a right L5 and S1 transforaminal epidural nerve root injection performed again by Dr Du Toit. This also failed to bring about a lasting reduction in his symptoms and he was prescribed Tramadol.
In the second half of 2020, Dr Du Toit recommended that Mr Delaney undertake a pain management program (which he did between approximately September and December of that year). He also consulted a pain specialist, Dr Ilonka Meyer, in late 2020 for a further opinion. Dr Meyer prescribed Gabapentin which did help his back pain a little.
Mr Delaney returned to work with Dormakaba on light duties in April 2019 and remained employed by that company until approximately October of that year.
After leaving his employment with Dormakaba for reasons unconnected with his injury, Mr Delaney went on a trip to Thailand in early 2020.
The COVID-19 pandemic and restrictions made it difficult for him to find new work, so he undertook an OH&S course at TAFE in 2020.
In 2021, he obtained an office job at the ATO for a brief period.
In November 2021, he commenced work in the stores department of the Alfred Hospital and in about January 2022 he moved into a clerical role at the hospital which he remained in until early April 2022.
In May 2022, Mr Delaney started work as a warehouse assistant for a French spirits distributor - although the work was initially manual, it did not require much heavy lifting.
Mr Delaney has undergone massage therapy, physiotherapy, chiropractic treatment, and myotherapy in an attempt to manage and reduce the pain in his back. He also applies ice to his lower back and buttocks and uses Voltaren cream and Deep Heat generally every day. He reserves use of prescription anti-inflammatory medication for the 'most severe' flare-ups due to ongoing concern about the potential effects on his stomach.
He suffers from some interference with his sleep, and he generally wakes up every morning with a stiff and sore back. It generally takes him quite some time to get going in the morning and he is never entirely pain-free. Prolonged sitting is difficult.
Mr Delaney sees a chiropractor, Mr Neil Gomez, approximately once a month and more frequently when he experiences a flare-up. He saw Dr Prakash 'sporadically' during 2022 and 2023 and had not seen a need to attend upon him very frequently since he came to the understanding that there is little more the medical profession can do for him. He no longer sees Dr Du Toit.
His affidavit concluded:

[16]

Shortly prior to the hearing, Mr Delaney filed a supplementary affidavit, which updated his situation. He said that he continued to suffer low back pain every day, particularly first thing in the morning and that his back pain is aggravated by certain activities such as sitting, lying in bed, prolonged standing, and bending over. He continues to suffer from flare-ups every three to four months. He rarely sees Dr Prakash for any treatment of his back, as he no longer requires WorkCover certificates or prescription medication. He understands there is little doctors can do and the best way to manage his injury is through exercise and physical therapy.
Mr Delaney deposed that he was now a warehouse manager with the French spirits distributor. His work was mainly office-based, although there was some manual hands-on work when required. He can cope with his work, as he has a sit-stand desk. He varies his activities between sitting and standing, time in the office and the warehouse, and avoids heavy lifting.
In terms of rehabilitation, Mr Delaney goes to a Kieser gym two to three times a week and walks for 50 minutes every night. He takes over-the-counter Nuromol medication, and when he suffers from a flare-up, he uses Voltaren cream. He tries to avoid taking stronger medication due to concerns it would interfere with his work. He said that he continues to see his physiotherapist, Mr Edwards, every four weeks and his chiropractor or a sports masseuse when his back pain flares up.
Mr Delaney's injury continues to impact his sleep.
Mr Delaney tries to avoid heavy lifting and bending, no longer rides a dirt bike, and can only go bike riding for 50 minutes or so without his back stiffening. He has not been able to return to hiking and cannot walk for longer than one hour.
Mr Delaney has, with his partner, continued to go on overseas holidays, but travelling on planes is difficult.
Mr Delaney said he is not as social as he used to be and that his back pain affects his mood - he is always in a bad mood, which affects his relationship with his partner. His intimate relations do not feel good because of his back pain.
In cross-examination, Mr Delaney confirmed that prolonged sitting was difficult and painful, and that by 'prolonged sitting', he meant sitting for more than 20 minutes to half an hour. He can engage in a long car drive but would generally break it up for an hour or so.
Mr Delaney said that all his recreational activities, all his domestic activities, and all his work activities were impaired by back pain. However, later in his evidence he agreed that he was able to shower and dress and could vacuum and assist in the kitchen. Any bending tasks could not be undertaken. He said that he avoids lifting heavy things around the house. His partner would carry the heavier groceries.
Mr Delaney said that his symptoms go up and down, and sometimes he has a flare-up, but his back had remained the same since 2019-2020. He had a flare-up in January 2024 and needed to see the chiropractor. The flare-ups occur every month or two. By 'flare-up', he means that his back is really stiff, and he walks 'all funny'. A flare-up can last for anywhere between a week to five weeks. When the flare-ups occur, he takes anti-inflammatories and puts ice on his back.
Mr Delaney agreed that in August 2020, in a pain management assessment at Advanced Health Care, he said that he was minimally restricted in his social and recreational activities.
Mr Delaney said that in October 2020, he dug holes for about 40 tomato seedlings and that he obtained 10 or 15 bags of soil from Bunnings, which he would carry about five metres from the car to the backyard.
He agreed that at times he told his chiropractor that he had no pain or minimal pain for two weeks in July 2022, but that, despite the chiropractor treating him for flare-ups, the pain always returned.
As to treatment, Mr Delaney said that at the present time, he only takes over-the-counter medication. He has not seen his general practitioner, Dr Prakash, since July 2021. He has not seen Dr Du Toit or Dr Rahim since about 2020.
He agreed that in March 2021, as part of a gym program, he would lift eight kilograms of dumbbells in each hand and was attending the gym three to four times per week.
As to employment, Mr Delaney finished up with Dormakaba in October 2019, and then in early 2020 went to Thailand with Ms Martin for about 12 days. He said that he left his job due to cultural and mental health issues and denied that it was due to the need to have bilateral knee surgery (as apparently recorded in the physiotherapist's notes).
Mr Delaney's job as full-time employee of the ATO in 2021, involved working six hour shifts performing computer work and he was able to sit and stand. He subsequently had had a similar clerical job in the stores department of the Alfred Hospital, which involved standing and sitting.
In his job with the French spirits distributor, he was promoted to a supervisory role and is now a manager. He sits and stands, and moves around, and might walk up to five kilometres a day. His employment originally involved lifting boxes which weighed about six kilograms, and he might lift 100 boxes in a shift. It involved lots of lifting and moving of boxes, and forklift driving.
Now, as the warehouse manager, he basically organises logistics and spends most of his time working at a sit/stand desk but does not carry out manual duties. He supervises three people and rarely does forklift driving or manual handling. He breaks up his work between sitting and standing. The work he now carries out is completely different to that which he was carrying out at the time he suffered the back injury.
As to recreational activities, Mr Delaney said he used to go dirt bike riding but said that his back got sore after riding all day so he sold it. He still rides a 300cc Yamaha road motorbike on weekends. He also rides a bicycle but not as much as in the past.
The social media photographs and comments posted by Ms Martin were tendered and Mr Delaney was questioned about them. They showed the couple, or Mr Delaney alone or with mates, at a number of holiday destinations: Thailand on two occasions (2020 and 2023), Malaysia, Far North Queensland, Gippsland and Lorne.
Mr Delaney agreed that he had gone to Far North Queensland to see a property he and Ms Martin had purchased. He spent approximately two weeks in Thailand on each occasion and on the second visit took two boat trips and did a grade three hike for a bit over an hour. He said that on that trip, he struggled with the boat ride to the island on which they were staying. When he was on holidays, he would always take anti-inflammatories with him and would not go on long hikes.
In 2020, Mr Delaney underwent two bilateral knee arthroscopies and then intensive physiotherapy for six months. In re-examination, he said that neither knee was now a problem for him.

[31]

Her Honour then set out the radiological evidence and the opinions of the treating doctors, Dr Prakash (general practitioner), Mr Rahim (spine and orthopaedic surgeon), Dr Du Toit (pain physician) and Mr Wan (pain physician).[10] Her Honour also noted the various extracts from the clinical records of his pain management program (Advance Health Care), his chiropractic practice (Chiropractic Solutions) and his physiotherapist practice (Platinum Physio).[11] Her Honour considered the report of physiotherapist, Mr Edwards.[12]
Next, her Honour recorded the opinions of Mr Dirk Van Bevel, orthopaedic surgeon, whom Mr Delaney had consulted regarding his knee pain, Dr Akil, a consultant neurologist engaged by Mr Delaney's lawyers, and Dr Haynes, an occupational physician engaged by the VWA's lawyers.[13]
Her Honour then set out her findings on the third question, the level of impairment. She accepted that Mr Delaney 'has an ongoing aggravation injury to his lumbar spine productive of some impairment consequences'.[14] She accepted the diagnosis of Dr Akil over that of Dr Haynes, given his specialty.[15] Dr Akil described the injury 'as an aggravation of lumbar spondylosis'.[16]
Her Honour observed that both Dr Haynes and Dr Akil found limitation in Mr Delaney's ability to bend but there was a significant difference in their examination as to straight leg raising. The judge concluded that this was because Mr Delaney, at the time of Dr Akil's examination, was experiencing a flare-up of his back.[17]
The judge then noted that 'most of the evidence from Mr Delaney's treating practitioners is rather dated.' Dr Du Toit, who thought the outlook was guarded, had not seen him since May 2021.
Her Honour also noted that Mr Delaney had completed a pain management program and obtained and retained suitable full-time employment since that time.[18]
The judge then turned to the report of the physiotherapist, Mr Edwards, who has supervised Mr Delaney's Kieser training since September 2023, and said that it -

[33]

Her Honour then said 'that Mr Delaney's low back condition is permanent in the requisite sense, in that it is likely to continue into the foreseeable future'.[20]
Then, in analysing the individual aspects of his impairment, her Honour accepted that Mr Delaney experienced some level of pain each day,[21] and took Nuromol, an over-the-counter analgesic, a couple of times a week and Valium on occasion when he travels by plane.[22]
Her Honour accepted that Mr Delaney experiences 'some level of pain each day'. The pain is not constant pain. His evidence was that his back pain flares up unpredictably every few months and can rise 'up to an eight ... probably above an eight' on a scale of one to ten, and that he uses Voltaren cream, takes Voltaren, uses ice and attends his chiropractor during flare-ups.[23] However, her Honour noted that he continued to work full-time as a warehouse manager and has not needed to take time off when experiencing flare-ups.[24] She found that what Mr Delaney does about the pain he experiences when he has a flare-up 'is a better indicator of its severity than his self-assessment of it as being at a level of eight out of ten'.[25]
Her Honour noted that Mr Delaney's current treatment regime included Kieser training two to three times per week and intermittent massage and chiropractic treatment, and that he had not attended a GP for treatment of his low back for more than two and a half years and there was no other specialist referral or treatment planned.[26]
Her Honour accepted that his sleep was disturbed most nights and that he generally only slept for about six hours a night and would wake up feeling stiff.[27]
In terms of functional tolerances and activity, the judge considered that Mr Delaney retained the ability to walk four or five kilometres most days. She accepted his evidence that he could not undertake prolonged sitting for more than half an hour, and while he could sit in a car or plane for an hour he would need to get up and walk around otherwise his back become stiff.[28] The judge also noted that he was not restricted in daily living activities (showering, dressing, or other personal care activities) and was able to perform most domestic activities, but that he struggled with activities that involved bending (such as stacking the dishwasher, using the washing machine and hanging clothes on the washing line).[29]
The judge accepted that there was some impairment of his enjoyment of intimate relations with his partner.[30]
In relation to recreational activities, the judge noted Mr Delaney's evidence that he could no longer ride a dirt bike and sold it in early 2020, and accepted that he is now restricted in his ability to ride a dirt bike though noted that he had since bought a motorbike which he rides up to an hour each week.[31] Her Honour also noted his evidence that he was no longer able to go on camping trips with his partner three or four times a year, however the judge noted that he did not identify which aspects of camping were made difficult by his condition.[32] The judge found that he could still go hiking distances of up to five kilometres, but no longer, and noted that he continues to undertake cycling for an hour at a time, up to six days a week.[33]
Her Honour observed that 'when considering the importance to Mr Delaney of the various recreational activities, none of them could be categorised as a "passion"'.[34] Further, she said that she was fortified in that view by the limited frequency with which he had undertaken hiking, dirt bike riding and camping prior to his injury, and that those activities were not specifically mentioned in his first affidavit despite it being 20 pages.[35]
In relation to work, her Honour noted that Mr Delaney had had several different full-time jobs since leaving his role with Dormakaba, a number of which involved manual handling. She ultimately concluded that Mr Delaney was unfit for work that involved repetitive heavy lifting and on that basis was unfit for his pre-injury duties.[36] Her Honour found that he remained capable of working full-time in suitable work and noted he is performing supervisory work in a warehouse environment, having performed warehouse work with supervisory responsibilities prior to his injuries.[37]
Then after stating she took into account both TTV SMS Pty Ltd v Reading[38] and Ellis Management Services Pty Ltd v Taylor,[39] in respect of the fourth and determinative question as to whether the impairment was serious, her Honour said this:[40]
1. The fact that Mr Delaney is able to work full time in suitable employment does not preclude a finding that he satisfies the statutory threshold.[41]
2. I bear in mind that Mr Delaney suffered his injury when aged thirty-six and will likely continue to experience symptoms for many years to come.[42]
3. I am required to consider what has been lost as well as what has been retained.
4. Mr Delaney suffers from variable but not constant pain, requiring over-the-counter medication, intermittent chiropractic treatment and massages. Mr Delaney retains the capacity to work full time in suitable employment. He can undertake all aspects of his personal care. He is able to perform lighter domestic and gardening activities. He can still drive and has been able to travel. There has been a mild impact on his recreational and social activities.

[47]

It is undoubted that Mr Delaney suffered an injury of significance to his lower back. His treatment regime in 2020 and 2021 and the opinions of his treating doctors at that time amply demonstrate the point. The recent report provided by consultant neurosurgeon, Mr Akil, commissioned by Mr Delaney's lawyers, confirms that Mr Delaney continues to suffer from an aggravation of lumbar spondylosis and that this is the cause of his current symptoms.
The judge accepted this diagnosis and concluded that the consequences were significant and marked. What her Honour did not accept was that the level of impairment produced by the acknowledged injury was as significant as that contended for by Mr Delaney and his lawyers - it did not clear the 'very considerable' hurdle.[55]
Whilst the judge accepted that Mr Delaney suffered from a variety of consequences caused by the injury, these had to be balanced against the things Mr Delaney could do which are set out at [105]-[106] above. This combined with a lack of information from the treating doctors as to Mr Delaney's current condition and prognosis were clearly relevant matters for the judge to consider.
Undoubtedly her Honour was also influenced by the social media material which demonstrated on its face that Mr Delaney was engaging (at least at times) in a full and unrestricted lifestyle whilst on vacation. Admittedly, considerable care has to be taken when analysing such material, as it is simply a snapshot of a person at a particular time and does not perforce contradict evidence of what they may and may not be able to do on a daily basis. This is all the more so when, in the context of a social media post, there is almost a universal necessity when on vacation to look happy and upbeat - whatever the true situation.
Even allowing for this note of caution, the thrust of Mr Delaney's first affidavit, encapsulated in the paragraph set out at [36] above, does not sit comfortably with the social media material. For instance, Mr Delaney had sworn that he could no longer go hiking, but the social media material demonstrated that he could - as he conceded. This, with the other anomalies identified by her Honour and set out at [75] above, led the judge to conclude that Mr Delaney's evidence as to his level of impairment had to be taken with a grain of salt. She was entitled to do so.
The judge had the opportunity to observe Mr Delaney giving evidence and assess his responses to lengthy cross-examination concerning his ability to perform occupational, domestic and recreational tasks and activities. On occasions in serious injury applications, what the judge makes of a claimant's responses and presentation in court will be of significance in determining the outcome. The judge is entitled to use that material in assessing the reliability and/or credibility of the witness. Provided the judge explains how those matters have been considered and their part in the overall analysis of the evidence (as her Honour did here), then this is an appropriate manner in which to determine acceptance or otherwise of a witness' evidence and whether the statutory test has been satisfied. As far as we can tell, there is nothing in the judge's conclusion as to Mr Delaney's unreliability which is either glaringly improbable or contrary to compelling inferences.[56]
Mr Delaney must establish error, and we can detect none in her Honour's conclusion that on her findings (which were open to the judge and identified by her) he had not established that the consequences of his lumbar spine impairment were 'at least very considerable'.

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