Fang Mei Zhang v Joy Foods Australia Pty Ltd [2016] VSCA 199

Court of Appeal (Vic)|2016-08-12|Before: Mr J, Redlich JA, Beach JA

ACCIDENT COMPENSATION - Workplace accident - Serious injury application - Lumbar spine injury - Initial injury organically based - Development of non-organic features - Disentangling physical causes of impairment from psychological causes of impairment - Application relying upon paragraph (a) of definition of 'serious injury' - Whether judge considered applicant's alternative paragraph (a) case - Applicant's alternative paragraph (a) case not duly addressed - Leave to appeal granted - Appeal allowed - Application under paragraph (a) of definition of serious injury remitted for rehearing and determination -

ACCIDENT COMPENSATION - Workplace accident - Serious injury application - Mental or behavioural disturbance or disorder - Whether permanent severe mental or permanent severe behavioural disturbance or disorder established - Application relying on paragraph (c) of definition of 'serious injury' if application under paragraph (a) not accepted - Judge rejected applicant's alternative paragraph (c) case - No error in judge's rejection of applicant's alternative paragraph (c) case - Accident Compensation Act 1985, s 134AB.

1 This application for leave to appeal from a judgment of the County Court has been dealt with on the basis that, if leave to appeal is granted, the appeal would be treated as having been heard instanter. The judgment of the County Court was given on 4 December 2015. The County Court dismissed an application by the applicant for leave under s 134AB(16)(b) of the Accident Compensation Act 1985 ('the Act') to bring common law proceedings against her former employer for damages in relation to a workplace incident.[1]

2 The applicant had sought leave from the County Court on the basis that she had a 'serious injury' within paragraph (a) of the definition of that term in s 134AB(37) of the Act ('permanent serious impairment or loss of a body function') or alternatively within paragraph (c) of that definition ('permanent severe mental or permanent severe behavioural disturbance or disorder'). The body function relied upon for the purposes of paragraph (a) of the definition of 'serious injury' was the function of the lumbar spine. Paragraph (c) of the definition of 'serious injury' was relied upon as an alternative in the event that the Court concluded that the applicant's condition was 'psychogenic'.

3 The hearing took place in the County Court on 28 and 29 October 2015.

4 The County Court accepted that the applicant had suffered an organic injury to her back in September 2011 at work, and that, as a result, her capacity for work was significantly restricted at least until September 2012. From September 2012, the applicant's presentation in relation to the claimed symptoms of her back condition had deteriorated markedly. At the hearing in the County Court, the applicant contended, primarily, that her overall back condition at that time was of substantially organic origin and that it thus amounted to 'serious injury' as defined in paragraph (a) of the definition. Alternatively, she contended in effect that the organic back injury, as it stood between September 2011 and September 2012, had persisted until the trial in October 2015 and that it amounted, in itself, to 'serious injury' within paragraph (a).[2] In the further alternative, the applicant contended before the County Court that, to the extent that her condition was not organically caused, it resulted from a behavioural disturbance or disorder which answered the description in paragraph (c) of the definition.

5 In our view, the reasons given by the County Court for rejecting the applicant's primary contention and her second alternative contention involved no error. However, we consider that the applicant's first alternative contention was not duly addressed. As a result, the application, insofar as it relates to the paragraph (a) claim, should be remitted for re-hearing and re-determination by a different judge of the County Court.

6 On the hearing of the application in the County Court, the applicant relied upon two affidavits that she swore on 24 March 2014 and 15 October 2015 respectively. The parties tendered various documents, including radiology reports, medical reports, extracts from clinical notes, extracts from medical files, vocational assessment documents and claim forms completed by the applicant. The only witnesses to give viva voce evidence on the application were the applicant and Dr Robert Gassin. Dr Gassin is a musculoskeletal and pain physician to whom the applicant was referred in October 2012. What follows is drawn from the evidence and material before the County Court.

The applicant and her treating medical practitioners

7 The applicant was born on 4 January 1973 in China. She commenced work after one year of secondary school. She worked in retail and in factories in China.

8 The applicant came to Australia in 2008 with her daughter. Her husband had come to Australia the year before and worked as a welder assembling trucks. Within a few weeks of arriving in Australia, the applicant obtained work in a Chinese food factory, where most of the workers spoke Mandarin. In May 2010, she commenced work with the respondent at its factory in Bayswater, which made food products such as chocolate and muesli bars. The plaintiff worked from 2:45 pm to 10:45 pm Monday to Friday plus overtime, which included frequent work on the weekends. She earned approximately $1,000 gross per week.

9 On 28 September 2011, the applicant felt the onset of pain in her low back when pulling out a tray of chocolates and twisting to move it. The applicant completed her shift and the next day saw a general practitioner (Dr Wang) who arranged for plain X-rays of her spine to be taken. On 3 October 2011, the applicant saw another general practitioner (Dr Lim), who arranged for a CT scan of the applicant's lumbosacral spine to be performed. That CT scan was performed on 11 October 2011. It revealed a small central disc protrusion at L4/5 and another small central disc protrusion at L5/S1. The applicant made a claim for compensation under the Accident Compensation Act 1985 ('the Act'). This claim was accepted.

10 The applicant had some electro-acupuncture in November 2011 from Dr Miao and some physiotherapy from Ms Cusworth in December 2011. Dr Miao noted constant low back pain since her injury with frequently occurring sharp radiation-like pain for one week. Ms Cusworth noted an antalgic gait, reduced weight bearing through the left leg and a rigidity in the spine. The applicant went to China on a pre-arranged visit from 28 December 2011 to 1 February 2012 to see her parents and siblings. In China, the applicant received additional medical treatment of a conservative nature. On return to Australia the applicant had some massage and acupuncture from a doctor at the Canaan Chinese Medical Clinic, Dr Wu.

11 In March 2012, the applicant returned to work on modified duties, initially for 2 hours a day, 2 days a week. The applicant's hours of work were increased until, by July 2012, she was rostered for 3 hours a day, 5 days a week. In cross-examination before the County Court, the applicant said that, prior to a fall in September 2012 (and to which we will refer below), she was feeling okay and wanted to try getting back to work. She said that she did not work to the respondent's standards: sometimes she worked 2 or 2.5 hours, instead of the 3 hours per day for which she was rostered. However, she then accepted in cross-examination that she was coping with the light duties that she was performing in 2012, and that it was her fall in September 2012 that stopped her working (although she also referred to having back pain and asking to leave early on the day of the fall). In re-examination, the applicant was asked about her return to work and the 15 hours per week that she was rostered to work. The applicant said that she struggled, could barely work the 15 hours per week and would not have been able to increase those hours.

12 In a report dated 4 April 2012, Dr Lim stated that the applicant was unable to return to her pre-injury duties.

13 Subsequently, Dr Lim arranged for an MRI of the applicant's lumbosacral spine. This was performed on 10 July 2012, and revealed disc protrusions at L4/5 and L5/S1 with posterior annular disc fissures noted at those sites. Dr Lim then referred the applicant to Professor Bittar, a neurosurgeon and spinal surgeon.

14 Professor Bittar saw the applicant on 13 August 2012. In his report to Dr Lim of that date, he noted that the history he obtained and his physical examination were limited because the applicant was not accompanied by an interpreter.[3] He expressed the opinion that the applicant presented with a 'fairly clear cut case of work-related lower back pain'. He said that it was difficult to be certain whether the applicant's pain was emanating from her disc prolapses, nerve root irritation or her facet joints. He referred the applicant to Dr Gassin for his expert opinion, as well as for some diagnostic blocks. In a subsequent report to the applicant's solicitors dated 18 November 2012 (written on the basis of the examination on 13 August 2012), Professor Bittar said that the potential generators of the applicant's pain included her intervertebral discs, as well as her facet joints. Professor Bittar thought the applicant's back and leg pain resulted from an aggravation of lumbar spondylosis consequential upon her work and specifically the September 2011 incident referred to by the applicant. He noted that that it would be appropriate to wait until a firm diagnosis had been established and a definitive treatment plan put in place before offering a long-term diagnosis. Nonetheless, he thought that she would likely suffer from ongoing symptoms and disability in the long term.

15 On 13 September 2012, the applicant was leaving work early when she fell. The applicant's evidence was that she was not feeling well, her back pain was worse and her legs felt weak. She informed her supervisor and left work early. She said that, as she was leaving work, her left leg gave way causing her to fall. She saw Dr Lim on 14 September 2012, where she presented complaining of intense pain. Dr Lim certified the applicant as unfit for work, and she has not worked since.

16 Next, on 10 October 2012, the applicant saw Dr Gassin (having been referred to Dr Gassin by Professor Bittar before suffering the fall on 13 September 2012). In a report to Dr Lim dated 10 October 2012, Dr Gassin noted a history of pain occurring suddenly in 2011, in the setting of her work as a packer, and an exacerbation of her symptoms with the fall at work on 13 September 2012. He reported that it was difficult to ascertain the source of the applicant's symptoms and that he had sought WorkCover approval for a series of injections of cortisone into the applicant's facet joints, as a first diagnostic step.

17 In a report dated 13 November 2012, Dr Lim said that he felt that the applicant may improve sufficiently to do light and non-heavy duties. However he doubted whether the applicant would ever return to full pre-injury duties for the long term.

18 On 29 November 2012, Dr Gassin performed facet joint injections at the L3/4, L4/5 and L5/S1 levels. Following the injections the applicant complained of increased pain, upper limb tremors (that resolved), an inability to weight bear on the left leg, global left lower limb weakness most marked at the L5 level, and reduced sensation in the S1 and L5 distributions.

19 On 4 December 2012, the applicant re-attended Dr Gassin with persistent lower back pain, global weakness in both legs, global weakness in the right arm, and decreased sensation in the distribution of the left L5 and S1 nerve. She was admitted at the Maroondah Hospital. Dr Gassin wrote a letter to the hospital in which he said that he could not explain the applicant's symptoms. The applicant was kept as an inpatient for some 10 days and discharged from the hospital with a walking frame. Extracts from the hospital file were tendered before the judge. There were a number of references in the hospital file to inconsistencies and functional factors in the applicant's presentation.

20 Later, when giving evidence-in-chief before the County Court, Dr Gassin said that it was possible that the applicant's initial response to the injections on 29 November 2012 was a reaction to one of the medications injected. However, in cross-examination, he said that that would be an exceedingly uncommon reaction. Dr Gassin also said that another possibility for the applicant's response was that it was due to central sensitisation. However, he later said that, if he had thought that the applicant had central sensitisation, he would not have performed the injections. Dr Gassin said that he could not explain the applicant's symptoms on 4 December 2012. He also said that there are a lot of things in medicine that cannot be explained; that it was certainly a possibility that the applicant's symptoms on 4 December 2012 were functional; and that the fact that there were sensory changes at L5/S1 but not L4 suggested an organic cause, at least of the initial reaction on 29 November 2012.

21 In early 2013, the applicant attended a number of sessions at a pain management clinic at South Eastern Private Hospital, where she was given some instructions about how to deal with her pain. There was no report from this pain management clinic tendered before the judge.

22 In a report dated 12 October 2015, Dr Lim described the diagnosis as 'severe L4 S1 disc bulge injury with involvement of L5 S1 region and thecal impingement'. He said that the applicant was not fit for pre-injury or alternative duties and that her pain would be long-term, possibly for the rest of her life. Nothing in Dr Lim's reports suggested that the applicant's condition was not organically based.

23 Professor Bittar provided an updated report to the applicant's solicitors on 27 October 2015. He had not seen the applicant again for this purpose, but he had seen the results of Dr Gassin's injections. Professor Bittar said that it was unlikely that the facet joints were playing a major role, given the applicant's failure to respond favourably to the facet joint blocks that had been performed by Dr Gassin. He said it was most likely that the applicant's pain was discogenic. However, nerve root compression and/or irritation could not be completely excluded without further investigation. As to the applicant's work capacity, Professor Bittar said:

At the time I reviewed her [13 August 2012] she was working modified duties two or three hours per day. She was unfit for pre-injury employment. In my opinion, unless her symptoms have improved significantly, it is highly likely that her work capacity has either remained the same or deteriorated.

24 The applicant continued to complain of significant ongoing back pain and disability, and pain in her left leg, up to the time of the hearing of her application before the judge. In her evidence, she said that she was getting worse; she continued to take medication including Lyrica, Meloxicam, Nexium and Zaldiar; and she continued to wear a Norspan patch every five to seven days as prescribed by Dr Lim. While the evidence disclosed that video surveillance had been taken of the applicant prior to trial, no surveillance video of the applicant was shown at trial.

25 In submissions before the County Court made by reference to Ansett Australia Ltd v Taylor,[4] the applicant relied on WorkCover's acceptance of liability for 130 weeks of weekly payments and for an impairment benefit as an admission that she had suffered a compensable injury to her back in the incident in September 2011.

26 Dr David Brownbill (a consultant neurosurgeon) examined the applicant at her solicitor's request on 1 August 2012 and 8 July 2015. Following his first examination, Dr Brownbill expressed the opinion that the applicant had sustained an aggravation of pre-existing and essentially asymptomatic lumbar spinal degenerative changes with associated intervertebral disc derangement. He said that the applicant was not fit for her pre-injury employment and that she should avoid activities involving heavy lifting, forced spinal mobility or repeated bending or prolonged standing or sitting. He said that the applicant was capable of lighter work activities avoiding those actions. He anticipated that the applicant's pain would continue in a fluctuating manner and that the activity restrictions he referred to would continue. There was no suggestion in Dr Brownbill's first report (following his first examination) of any non-organic features.

27 Following his second examination on 8 July 2015, Dr Brownbill noted a continuation of the absence of the applicant's left ankle reflex. Dr Brownbill said there was no other objective neurological abnormality. He went on to say:

Her demeanour and responses throughout the examination indicated the development of a non-organic emotional reaction (which has resulted in the giving way weakness of the legs, apparent marked restriction of thoraco-spinal flexion and inability to stand on her toes or heels). The full assessment of this reaction lies outside the neurosurgical province.

...

I consider ... that the work related aggravation with lumbar spine degenerative changes had continued with resulting further progressive pain increase.

She will need to avoid heavy lifting, forced spinal mobility, repeated bending or prolonged standing or sitting.

Her developed emotional reaction to the pain and activity restrictions may be accentuating her own perception of ongoing pain however I consider that on probability (sic) there is significant ongoing organic pain which has contributed to her current incapacity for work.

28 In a subsequent report dated 6 October 2015, Dr Brownbill commented on some documentation that had been provided to him including a vocational assessment report. In this report, Dr Brownbill said:

On the information provided and noting the examination findings previously I consider that on probability she would not be able to pursue the employment options outlined by Nabenet in an ongoing or reliable fashion from a physical neurosurgical point of view.

...

I had also noted that she had developed an emotional reaction to pain and activity restrictions which may be accentuating her own perception of ongoing pain however I also considered that on probability there was significant ongoing organic pain which has contributed to her incapacity for work.

29 Dr Meena Mittal (a pain physician and a specialist anaesthetist) examined the applicant at her solicitor's request on 27 March 2015. On examination, Dr Mittal noted that 'there was significant fear avoidance behaviour'. Dr Mittal also said that 'interestingly sensation to light touch and pin prick was reduced on the entire left leg with no specific dermatomal pattern'. Dr Mittal expressed the opinion that:

Mrs Zhang had active underlying pathology that resulted in her lower back pain. This included discogenic disease at L4/5 and L5/S1 levels. This was supported by a CT scan and MRI investigations. There was also associated significant facet joint arthropathy particularly in the left side along with sacroilaic joint arthropathy as evident on examination and history. The lower limb pain was most likely to be referred pain from the lower back, however, nerve root compression could not be entirely excluded purely based on MRI findings and the only way to confirm this would be a diagnostic nerve root injection.

30 Dr Joseph Slesenger (a specialist occupational physician) examined the applicant at her solicitor's request on 16 April 2015. Following his examination, Dr Slesenger expressed the following opinions:

I am satisfied that she [the applicant] initially aggravated a pre-existing degenerative disease of the lumbar spine and there is evidence that she developed a chronic pain disorder. I also note evidence of a psychological impairment, although this is outside my area of expertise.

...

Mrs Zhang could not return to her pre-injury duties. I note the occupational demands, in particular the postural demands, as well as the manual handling requirements. I am of the opinion that she could not return to these activities.

With regard to alternative duties, I am of the opinion that she does not have a work capacity. I note the severity of her symptoms, her functional limitations and her use of medication. I am satisfied that she could not return to work performing alternative duties.

31 In a subsequent report, provided after viewing a vocational assessment report, Dr Slesenger expressed the opinion that the applicant was not able to perform particular duties associated with vocations referred to in the vocational assessment report. Dr Slesenger said that in his opinion the applicant did not have the capacity to return to work in the open job market. He concluded:

I am satisfied that the current impairment is a result of an initial aggravation of pre-existing degenerative disease of the lumbar spine and subsequent development of a Chronic Pain Disorder.

32 While there was evidence that the applicant had attended a pain management clinic, the applicant did not tender any reports from a psychiatrist or a psychologist.

33 The respondent tendered medical reports from six medico-legal specialists: Dr Andrew Miller (an occupational health consultant) who examined the applicant on 29 March 2012; Mr Michael Shannon (an orthopaedic surgeon) who examined the applicant on 19 November 2012; Mr Timothy Gale (a general and trauma surgeon) who examined the applicant on 24 January 2013; Dr David Barton (a consultant occupational physician) who examined the applicant on 16 October 2013; Dr Kevin Fraser (a rheumatologist) who examined the applicant on 30 July 2014; and Dr Shashjit Varma (a consultant psychiatrist) who examined the applicant on 16 October 2013.

34 Following his examination, Dr Miller concluded that the applicant had sustained a chronic incapacitating injury to her lower back. He said that the underlying pathology appeared to be lumbar intervertebral disc lesions. Dr Miller thought that further slow but sustained improvement could be expected with stabilization of the injury within six months. Dr Miller's examination occurred some five and a half months before the applicant's fall in September 2012.

35 The balance of the medico-legal opinions relied upon by the respondent were formed after examinations that all occurred after the September 2012 fall.

36 Following his examination, Mr Shannon expressed the opinion that the applicant's pain was essentially mechanical and discogenic in origin. As to non-organic features, Mr Shannon said:

Although there is some non-organic features to her presentation (sic), I think that she does have an ongoing and significant work-related disability and is unfit for work involving significant bending or lifting and she would have difficulty in prolonged sitting or standing.

37 On his examination of the applicant, Mr Gale observed 'features of illness behaviour'. Mr Gale expressed the opinion:

It is possible that as a result of the worker's employment in September 2011 she suffered symptomatic aggravation of aged-related and constitutionally based degenerative changes in the lumbar spine with some indefinite symptoms affecting the left leg.

I understand there was a further episode of injury in September 2012 when she fell resulting in increasing back pain and increasing symptoms affecting the left leg. This episode in 2012 was probably symptomatic aggravation of the original injury in September 2011. It is noted that a month prior to the fall in September 2012 the worker was assessed by Mr Bittar consultant neurosurgeon. Current physical examination, and this is confirmed in some of the documentation provided by other medical specialists, is that probably super-imposed upon the physical injury has been a non-organic component with features of illness behaviour. Current physical examination has resulted in some abnormal responses to neurological assessment of the left lower leg, but it is difficult to make a diagnosis on an anatomical basis, and these changes could be a manifestation of the illness behaviour.

...

In view of the secondary factors following the work-related incident of injury the worker's prognosis would be poor, and it is noted that specialist treatment has been ceased and this probably does not auger well for the future.

38 Dr Barton, following his examination of the applicant, said that what was apparent on physical examination was a range of features that pointed towards a degree of deliberate exaggeration of the applicant's condition. The features relied upon by Dr Barton included 'the rather contrived way (the applicant) appeared to collapse during several aspects of the examination'; 'the lack of any clear objective evidence of any particular physical problem that would account for her symptoms'; and 'the non-anatomical sensory changes in the left leg'. Dr Barton expressed the opinion that the applicant did not require any treatment and that she did not have any ongoing physical problem.

39 Dr Fraser, having examined the applicant, reported that she had collapsed to the floor as she was leaving at the end of the examination. Dr Fraser said there was marked over-reaction on physical examination. He expressed the following opinion:

I am not convinced that there is any ongoing work-related injury in this case.

Perhaps she sustained soft tissue strains as a result of the incident at work in September 2011, but from her description of the incident I do not consider that it caused any disc protrusions at the lower lumbar levels or otherwise aggravated any other minor pre-existing aged related degenerative changes.

Any putative soft tissue injury should have long since resolved and given the marked over-reaction on physical examination I consider that her ongoing symptoms are largely due to non-organic factors.

In this situation the prognosis is poor and it is unlikely that there will be any improvement in the foreseeable future.

40 The psychiatric report of Dr Varma was the only psychiatric or psychological report that was tendered before the judge. Dr Varma conducted a mental state examination of the applicant and said:

As far as diagnosis is concerned, she suffers from lower back pain. However, from a psychiatric point of view, according to the DSM-IV diagnostic criteria, she does not suffer from any psychological illness.

I note that she mentioned that she saw a counsellor four times and she was not sure why she was seeing a counsellor. I do not think that she needs a counsellor or a psychologist.

41 The judge commenced her reasons for judgment with a description of the application and some statements of general legal principle.[5] The judge then summarised the applicant's evidence,[6] before summarising the medical evidence.[7] In so doing, her Honour noted that there was no dispute that the applicant had suffered a compensable injury to her back in the incident in September 2011.[8] Her Honour observed that the acceptance of liability for WorkCover payments, though not binding, was ordinarily to be regarded as very significant.[9]

42 Next, the judge dealt with the applicant's credit. The judge said:

Whilst there was no film shown, and there were no 'complete inconsistencies,' counsel for the defendant submitted that inaccurate histories the plaintiff had given and her answers at times, which were non-responsive, should be taken into account. It was submitted secondary gain played a part in the way the plaintiff put her case.

It was submitted the plaintiff's demeanour in the witness box was not of a person who was not concentrating hard. She did not appear to be in unrelenting pain.

Whilst I agree with the observations of the defendant's counsel as to the plaintiff's presentation in Court and that her answers were at times non-responsive, perhaps due though to difficulties on translation, the plaintiff's credit does not play a major part in the determination of this case.[10]

43 The judge then described the issue before her in the following terms:

The issue is whether, as at the date of hearing, the plaintiff's condition has a substantial organic basis and is serious. If I am not satisfied there is a substantial organic basis, the issue is whether the physical consequences can be separated from the psychological and satisfy the serious narrative.[11]

44 The judge said that she 'largely accept[ed]' that up until the time of the September 2012 fall the applicant required ongoing treatment for an organically based lumbar condition. The judge concluded that the applicant's presentation up to the time of the fall had been 'straightforward and non-functional'.[12] The judge said that the first mention of non-organic factors in the applicant's presentation was upon the examination by Mr Shannon in November 2012. This examination followed the September 2012 fall, but pre-dated the facet joint injections performed by Dr Gassin on 29 November 2012.[13]

45 The judge then further discussed the medical evidence, before saying:

Those medical practitioners who concluded the plaintiff's condition continues to relate to aggravation of lumbar degeneration disc disease to a large extent ignore the significant non-organic findings they have made when making that diagnosis.

The plaintiff exhibited significant fear avoidance behaviour and thought, when seen by Dr Mittal earlier this year. She had difficulty mobilising from sitting to standing and used a walking stick. There was positive facet joint loading on the left. There was marked tenderness in the lower two lumbar levels.

Again, when seen by Dr Slesenger in 2015, the plaintiff walked with a limp and used a walking stick. Axial loading was positive, as was truncal rotation. There was weakness throughout the left leg and 20 per cent sensory loss throughout the left lower limb.

Mr Brownbill is the only practitioner relied upon by the plaintiff who acknowledges his non-organic findings and the plaintiff's emotional reaction when expressing his conclusion. Despite the giving way weakness of the legs, the apparent marked restriction of the thoracospinal flexion and inability to stand on her toes or heels, he thought, on probability, there was significant ongoing organic pain which has contributed to the plaintiff's current incapacity for work - namely a light work back.

Whilst Mr Brownbill's opinion following re-examination may be the strongest part of the plaintiff's case, he did not adequately explain the cause of what he described as significant ongoing organic pain. Further, he did not explain the plaintiff's apprehensive demeanour or her inconsistent limp.

Dr Lim's recent report is brief and of little assistance when considering this issue. There are no recent examination findings noted.

Taking into account all the medical evidence, together with the plaintiff's presentation both to doctors and in Court, I am not satisfied her present lumbar condition has a substantial organic basis. Further, I am not satisfied that the plaintiff has successfully separated the physical contribution to her pain and suffering from the psychological to satisfy me that the pain and suffering and loss of earning capacity consequences attributable to the physical injury satisfy the statutory test.

Accordingly, the application for pain and suffering and loss of earning capacity pursuant to clause (a) is dismissed.[14]

46 Having dismissed the application as far as paragraph (a) of the definition of 'serious injury' was concerned, the judge then turned to the applicant's alternative claim in relation to paragraph (c). The judge noted that counsel for the applicant had submitted to her that if the applicant's condition was not feigned then it was a genuine disturbance in thinking and perception which came within paragraph (c); and that the applicant did not have to establish that she had a psychiatric diagnosis as such. The judge then noted that, on the other hand, counsel for the respondent had submitted to her that there was no evidence from the applicant to support a paragraph (c) claim; and that such evidence was essential. The judge accepted the respondent's submissions and rejected the applicant's claim under paragraph (c), saying that a perception of pain could not satisfy paragraph (c). The judge said that, taking into account all of the evidence, she was not satisfied that the consequences of any chronic pain syndrome suffered by the applicant were 'severe'.

47 As indicated above, on 4 December 2015 the judge made an order dismissing the applicant's application.

48 The applicant's proposed grounds of appeal are as follows:

The learned trial judge erred by failing to assess whether the consequences of the applicant's back injury that she had found to be of substantially organic origin met the test for serious injury within the meaning of that phrase in paragraph (a) of the definition of 'serious injury' contained in s 134AB(37) of the Accident Compensation Act 1985, even disregarding the additional non-organic consequences, and by instead limiting her enquiry to whether the applicant's body of complaints considered as a whole were of substantially organic origin.
The learned trial judge erred by failing to have regard to the applicant's genuinely experienced pain and restriction in the application under paragraph (c) of the definition of 'serious injury' contained in s 134AB(37) of the Accident Compensation Act 1985, being pain and restriction that her Honour had disregarded in the application under paragraph (a) of the definition of 'serious injury'.
Alternatively to 2, the learned trial judge erred by failing to make findings as to the level of pain and disability in fact experienced by the applicant including by failing to make findings as to whether or not she was a reliable witness.
The learned trial judge failed to give adequate reasons for her decision.

49 The applicant makes three complaints about the judge's reasons for judgment.

50 First, the applicant makes a complaint about the judge's treatment of the issue of disentangling organic causes from non-organic factors. The applicant submitted that, up to the fall in September 2012, the evidence disclosed an organic injury with serious consequences. The applicant submitted that the judge should have determined whether that organic injury and its organically based consequences continued on to the time of the hearing, even though non-organic factors had come into existence. It was then contended that the judge should have determined whether these physically based consequences satisfied the test for seriousness. The applicant contended that, in refusing the applicant's paragraph (a) application, the judge only looked at the applicant's overall presentation at the time of hearing, before then concluding: (a) that she was not satisfied that there was a substantial organic basis for that presentation; and (b) that she was not satisfied that the applicant had successfully separated the physical contribution from the psychological contribution to the applicant's claimed consequences. This approach, it was submitted, involved a failure by the judge to deal with a basis upon which the applicant put her claim to the judge.

51 Secondly, the applicant submitted that, in circumstances where the applicant's credit had largely been accepted by the judge, if the judge did not accept that there was a substantial organic basis for the applicant's presentation (and thereby rejected the paragraph (a) application), the judge should have concluded that the applicant's genuine perception of severe pain constituted a relevant mental or behavioural disturbance or disorder under paragraph (c). Thus, if the judge accepted that the applicant had genuine severe pain that prevented her from working, the applicant had to succeed either under paragraph (a) or (c).

52 Thirdly, the applicant submitted that the judge's reasons were inadequate. In her written case, the applicant argued her inadequacy of reasons grounds on two bases: first, it was said that the judge did not make sufficient findings about the applicant's level of pain and disability for the purposes of the claim under paragraph (c) of the definition of 'serious injury'; and secondly, it was said that the judge did not explain why the applicant's complaints of pain and disability did not meet the test for 'severe' in paragraph (c). In oral argument, the applicant expanded her complaint about the judge's reasons to include a complaint that the judge did not give sufficient reasons for refusing her application under paragraph (a) of the definition of 'serious injury'.

53 The respondent submitted that leave to appeal should be refused because none of the applicant's proposed grounds of appeal have a real prospect of success.[15] As to the applicant's first complaint, the respondent submitted that while the judge found that the consequences of the applicant's lumbar spine condition had a substantial organic basis as at September 2012, the judge did not accept that those consequences continued to have an organic basis as at the date of the hearing.

54 As to the applicant's second complaint, the respondent submitted that the judge was right to conclude that there was no evidence of a relevant mental or behavioural disturbance or disorder. Moreover, the respondent submitted, there was no evidence tendered before the judge that any relevant mental or behavioural disturbance or disorder was 'permanent' as required by the terms of paragraph (c) of the definition of 'serious injury'.

55 As to the applicant's third complaint (the complaint of inadequate reasons), the respondent submitted that this should be rejected because the judge (having regard to the reasons actually given by her for rejecting the applicant's claim) was not required to consider the test for seriousness or severity or to make more comprehensive findings as to the applicant's credibility as a witness. The respondent contended that the judge's reasons disclosed her path of reasoning.

56 As indicated above, the applicant put the paragraph (a) part of her application on two bases before the judge. Her principal claim was that the total condition and consequences of the applicant's lumbar spine injury, as they were at the time of hearing, had a substantially organic basis. The alternative (and subsidiary) claim was that there was a demonstrably physically based injury to the applicant's lumbar spine in September 2012; that such injury had persisted up to the time of trial, and continued to be physically based; and that the physically based injury had consequences (not including the subsequently developing non-organic consequences) which themselves satisfied the test for seriousness.

57 The question of whether, and in what circumstances, particular consequences of an injury must, or might relevantly, be found to have a substantially organic basis was discussed by Maxwell ACJ[16] in Meadows v Lichmore Pty Ltd.[17] His Honour said:

It is, of course, correct that the statutory test is not concerned with whether the pain and suffering consequences are 'substantially physically based' or have 'substantially an organic basis'. But senior counsel for the respondent informed the Court - and senior counsel for Mrs Meadows accepted - that it was a conventional and accepted approach, in cases where pain had both physical and psychological causes, for the parties and the judge to address questions formulated in these terms.

This framework of analysis was said to owe its origin to the judgment of Ashley JA in Jayatilake v Toyota Motor Corporation Australia Ltd.[18] His Honour there pointed out that, in pain and suffering cases involving both physical and psychological causes, it may be necessary to 'disentangle' the one from the other, but it may not be. (The Court's earlier decision in Stamboulakis[19] had been said to require the applicant in every such case to separate the two, and to provide medical evidence in a form which enabled the separation to be made.) His Honour said:

In some instances, disentangling might be a useful methodology in resolving the question whether the worker has suffered serious injury. It may be the case also that, in some instances, doctors will be able to offer opinions of substance - not mere form - which will assist in disentangling physically and psychologically-based pain and suffering. But it would be simply wrong to think that Stamboulakis commands such an approach, failing which a plaintiff cannot succeed.[20]

Many examples might be given to illustrate the point. I will take just two.

Suppose a man loses a dominant right arm in an industrial accident. For a year or so he attempts to resume his former manual work; but he cannot do so. It is also clear that he cannot enjoy any of his previous recreations - gardening, golfing, and so on. These sequelae will be permanent. Later, in response to his injury and its effects upon him, he begins to suffer from somatic symptoms which make his life more of a misery. He has recurrent headaches, chest pain, and abdominal discomfort, all of which would preclude him working and from enjoying his former recreations. These somatic symptoms could be 'stripped away', almost certainly without the assistance of medical practitioners. But it could not sensibly be said that this would be necessary in order for Mrs Meadows to establish that the impairment in its physical consequences constituted serious injury.

Consider another example. A man of mature years, who has always been a labourer, suffers spinal injury. It is sufficiently serious to require a three level spinal fusion. He is left with a stiffened back. The spinal segments above and below the fusion are at increased risk of injury because of the fusion. Medical opinion is that the man will be limited, permanently, in the work which he can perform; and his essential recreational pursuits are seriously and permanently inhibited. Later on, he develops intractable pain in the affected area with radiation to his lower limbs. The pain cannot be explained physically. It is a psychological phenomenon, and it is very disabling. There could be no need to disentangle the psychologically-based symptoms and their consequences - although again it may be assumed that it would be possible to do so.

Finally, consider a variant of the second example. Suppose that the intractable pain, psychologically-based, has its onset very soon after surgery. The physical impairment, and its impact upon work capacity, would be no less ascertainable only because the psychologically-based symptoms were not 'stripped out'.

It is impossible to specify a 'one size fits all' template of circumstances which a judge might find useful in determining a particular serious injury application. To take a single example, it could be that the judge hearing a particular application would consider himself or herself assisted by evidence that the applicant had a sound work record, or that the applicant had previously sustained injury but had recovered and got back to work. The judge might think it significant that the applicant had responded favourably to earlier injury affecting the area of the body now said to be affected. The fact that a person had coped with injury in the past, but not with injury now, might suggest, together with other circumstances, the likelihood that symptoms attributed to the present injury had a substantial organic basis - at least sufficient to satisfy the serious injury threshold. But whether such a conclusion should be drawn would depend upon consideration of all the evidence.[21]

According to counsel for the respondent, it is the highlighted passage which explains the approach of the judge in the present case. Apparently, what Ashley JA said there has in practice been reformulated as a question, to the following effect: 'Do the pain and suffering consequences attributed to the relevant impairment have a substantial organic basis?'. As is apparent from the excerpts from the trial judge's reasons set out above, 'substantial organic basis' is the very phrase which he used.

As a result, so the respondent submitted, serious injury applications raising issues of this kind are effectively approached in a two-step manner. The first step is to ask whether there is a substantial organic basis for the pain and suffering consequences relied on. If the answer to that question is affirmative - and, of course, if the pain and suffering consequences satisfy the statutory criterion - then the applicant will succeed without the need for any 'disentangling' of the physical contributions to the pain and suffering from the psychological contributions.

If, however, that first question is not - or cannot be - answered affirmatively, then the applicant will need to take the next step and 'disentangle'. That is, the applicant will need to be able to separate the physical contribution to the pain and suffering from the psychological, in order to be able to satisfy the Court that the pain and suffering consequences attributable to the physical injury satisfy the statutory test.[22]

58 In her reasons for judgment, the judge specifically relied upon the last two paragraphs of Meadows set out above.[23] The judge then looked at all of the consequences asserted by the applicant at the time of hearing, and concluded that she was not satisfied that there was a substantial organic basis for all of these consequences. The applicant does not make any specific complaint about this conclusion. The applicant submitted that the failure by the judge to be satisfied that there was a substantial organic basis for the applicant's condition or presentation at the hearing of her application did not foreclose the possibility that the applicant could succeed in her paragraph (a) application on her alternative claim that the underlying physically based injury found to exist in September 2012 continued to exist, was still organically based, and had serious consequences (albeit consequences that were included in, or of less seriousness than, all of the consequences about which the applicant gave evidence at the hearing of the application).

59 The respondent submitted that there was no substance in the applicant's arguments because the judge was entitled to be 'not satisfied' that the applicant had 'successfully separated the physical contribution to her pain and suffering from the psychological to satisfy [the judge] that the pain and suffering and loss of earning capacity consequences attributable to the physical injury satisf[ied] the statutory test'.[24] Accepting for present purposes that the judge was entitled to be 'not satisfied' in relation to this issue, the question then becomes, upon what basis did the judge determine that she was so not satisfied.

60 With respect to the judge, we are unable to discern from her reasons for judgment the reason why she was not satisfied that the applicant had successfully separated out the relevant physical and psychological consequences. Equally, we are unable to discern the basis upon which the judge discounted the applicant's organic injury. The respondent submitted that her Honour's reasons in respect of these matters were to be found in her Honour's analysis of the medical opinions. We disagree. Notwithstanding the applicant's pursuit of the alternative paragraph (a) case that involved determining what (if anything) happened to the organic lumbar spine injury that was present in September 2012, the judge made no findings about the existence of this injury beyond 2012. Having regard to the way in which the applicant advanced her case at first instance, it was incumbent upon the judge to deal with this alternative claim.

61 Further, it was no answer to the applicant's contentions that the judge was required to determine seriousness as at the time of hearing. That was undoubtedly so.[25] But the requirement to determine seriousness at the time of the hearing did not mean that the judge could not consider the paragraph (a) application by reference to the issue of what happened to the proven organic injury that existed as at September 2012 and by reference to the question of whether, at the time of the hearing, organically based consequences of that injury persisted and were serious and permanent within the meaning of the Act.

62 Additionally, insofar as the judge rejected the applicant's paragraph (a) claim because she determined that 'those medical practitioners who concluded the [applicant's] condition continues to relate to aggravation of lumbar degeneration disc disease to a large extent ignore[d] the significant non-organic findings they ... made when making that diagnosis',[26] we consider that the judge erred. We do not see any basis for a blanket conclusion that those medical practitioners whose opinions were favourable to the applicant 'ignored' the applicant's non-organic features. The non-organic aspects of the applicant's presentation were obvious and were referred to by many of the applicant's medical witnesses.[27] Neither is the reasoning apparent as to how those medical practitioners who focussed upon the applicant's non-organic features were able to disregard the organic features of the applicant's condition.

63 The applicant submitted that if this Court accepted that the judge had not properly dealt with her application under paragraph (a) of the definition of 'serious injury', this Court was in as good a position as a trial court to determine the matter for itself. To the contrary, the respondent submitted that if we accepted that there was error involved in the judge's refusal to accede to the applicant's paragraph (a) application then it was submitted that we should remit the matter to the County Court for rehearing and redetermination. The respondent contended that while credit had not been an important factor so far as the judge's reasons were concerned, aspects of credit and the applicant's presentation were critical to the proper determination of the paragraph (a) application.

64 We think there is force in the respondent's contentions. Moreover, in our view, a trial court is better placed to make findings about whether or not any organically based lumbar spinal condition continued on (and continued to be organically based) after 2012, and then to determine the issue of seriousness in relation to such organically caused consequences as might be found to continue to exist and be permanent within the meaning of paragraph (a) of the definition of 'serious injury'.

65 At the hearing before this Court, the applicant's argument in relation to her paragraph (c) claim was as follows. The judge found the applicant to be truthful. The applicant said that she could not work because of her back injury. If the back injury was not substantially organically based then it must have been psychologically based (the possibilities of malingering or feigning having been eliminated). Not being able to work for genuine 'non-organic' reasons is extremely serious and satisfies the test for severity in paragraph (c). It was then said to follow that 'logic dictated' that, if the applicant's condition was not substantially organic, it must be mental or behavioural and the applicant must be found to have suffered a severe mental or behavioural disturbance or disorder within the meaning of paragraph (c).

66 The respondent made a number of responses to this argument. Its principal response was that even if one accepted the correctness of the applicant's analysis, there was no evidence that the claimed mental or behavioural disturbance or disorder was permanent as required by paragraph (c) of the definition of 'serious injury'. For that reason alone, it was said that the applicant's paragraph (c) claim must fail. There is considerable force in that response.

67 On a more fundamental level, we think that the applicant's argument must be rejected because it does not follow the statutory language. Paragraph (c) of the definition of 'serious injury' provides that 'serious injury' means 'permanent severe mental or permanent severe behavioural disturbance or disorder'. The first step in the analysis is to identify a mental or behavioural disturbance or disorder, albeit not necessarily a recognised medical condition.[28] The question then becomes whether such mental or behavioural disturbance or disorder is permanent and severe. The applicant's argument involves a process of reasoning in reverse that is not contemplated by the Act.

68 In the present case, we see no error in the judge's rejection of the applicant's claim under paragraph (c). The only psychiatric opinion tendered to the judge was that the applicant did not suffer from any psychological illness. We accept the applicant's submission that the claim under paragraph (c) fell to be determined on the whole of the evidence, but it will be an unusual case (to say the least) in which an applicant will be able to succeed in a paragraph (c) claim without evidence from a psychiatrist or a psychologist or another medical practitioner considered to be qualified to express an opinion on the matter.[29] In any event, we are unable to see any error in the judge's analysis of the relevant paragraph (c) issues.

69 Although the s 134AB(16)(b) application must be remitted for rehearing and redetermination in relation to the applicant's paragraph (a) claim, we do not consider that it would be appropriate to permit the applicant to relitigate the paragraph (c) claim at the same time or at all.

70 We have already dealt with an aspect of the judge's reasons when dealing with the question of whether the judge considered and dealt with the applicant's alternative case under paragraph (a). Having regard to what we have already said, it is not necessary to analyse further the judge's reasons. As we have said, the judge did not deal with a part of the applicant's case to which we have already referred when considering the application under paragraph (a) of the definition of 'serious injury'. The judge's reasons about the applicant's credibility were not directed to the applicant's first alternative argument. In the circumstances, and again as we have already said, we think it best that the application be remitted to the County Court for rehearing and redetermination of the paragraph (a) claim. This will also enable a trial judge to make any findings concerning the evidence relevant to the question of whether the applicant has suffered a loss of learning capacity of 40 per centum or more, as required by s 134AB(38)(e) of the Act, in order to found any entitlement to seek pecuniary loss damages.

71 For the reasons given above, the application for leave to appeal should be granted; the appeal should be treated as having been heard instanter and allowed; and the applicant's application under s 134AB(16)(b) of the Act, insofar as it is based on paragraph (a) of the definition of 'serious injury' in s 134AB(37) of the Act, should be remitted to the County Court for rehearing and redetermination.

[1] Zhang v Joy Foods Australia Pty Ltd [2015] VCC 1745 ('Reasons'). The copy of the reasons for judgment in the appeal book contains 305 paragraphs. Three lines at the top of page 42 of this version do not have a paragraph number. A corrected version, placing those lines in their own paragraph, and containing 306 paragraphs, was subsequently published by the judge. When referring to paragraphs of the judge's reasons, we will use the paragraph numbers in the corrected reasons for judgment.

[2] This alternative way in which the applicant put her claim is not unlike the example given by Ashley JA in Jayatilake v Toyota Motor Corporation Australia Ltd [2008] VSCA 167; (2008) 20 VR 605, 612 [27], about which we will say more below.

[3] Professor Bittar's report on this examination is dated 18 November 2012.

[9] Ibid [234], referring to Ansett Australia Ltd v Taylor [2006] VSCA 171.

[10] Ibid [247]-[249] (footnotes omitted).

[14] Ibid [276]-[284] (footnotes omitted).

[15] See s 14C of the Supreme Court Act 1986 and Kennedy v Shire of Campaspe [2015] VSCA 47.

[16] With whom Robson and Dixon AJJA agreed.

[17] [2013] VSCA 201 ('Meadows').

[18] [2008] VSCA 167; (2008) 20 VR 605 ('Jayatilake') (Neave JA and Pagone AJA agreed).

[19] [2007] VSCA 46; (2007) 15 VR 649 ('Stamboulakis').

[20] Jayatilake [2008] VSCA 167; (2008) 20 VR 605, 612 [24].

[21] Ibid [25]-[29] (emphasis added).

[22] Meadows [2013] VSCA 201 [18]-[22] (citations in original).

[27] See, eg, Dr Brownbill, Dr Gassin and Dr Slesenger.

[28] See Humphries v Poljak [1992] VicRp 58; [1992] 2 VR 129, especially 140-141, 143. Compare, in relation to workers' compensation, Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626, especially 634 (Kitto J) and 637 (Windeyer J); Military Rehabilitation and Compensation Commission v May [2016] HCA 19; (2016) 331 ALR 369, 381-382 [62], [66]-[67] (French CJ, Kiefel, Nettle and Gordon JJ) [80] (Gageler J).

[29] See and compare, again, the cases cited in the previous footnote at the pages and paragraphs cited.

Compensation Act 1985

At a glance

Court

Decision date

Before

Source

Judgment (112 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (4)