Court of Appeal (Vic)|2013-09-12|Before: Mr J, Nettle JA

Fokas v Staff Australia Pty Ltd [2013] VSCA 230 (12 September 2013)

1 In this appeal I have had the considerable advantage of reading in draft the reasons for judgment of Dixon AJA and there is little which I can usefully add.

2 The case is one of those difficult although hardly exceptional matters in which an applicant for leave to bring proceedings under s 134AB(16)(b) of the Accident Compensation Act 1985 relies on pain and suffering consequences which are alleged to be attributable to both physical and psychological consequences.

3 The difficulty exists because of the distinction which s 134AB(38)(h) of the Act demands be drawn between those consequences of a serious injury which are psychological or psychiatric and those which are not.

4 From time to time, this court has struggled to formulate a principled approach to the process of allocation. Unsurprisingly, our success has been limited. Given that all pain is ultimately cerebral, and in that sense psychological, who is to say which part of it is physical for the purpose of the legislation and which part is not? Any test which we may formulate is bound to be no less artificial than the distinction on which it is premised.

5 If I may say so with respect, the judge in this case made an admirable attempt to grapple with the difficulty. Her Honour's consideration of the evidence and such conclusions as might be drawn from it were both detailed and, in some respects, compelling. But, according to this court's most recent pronouncement on the subject, which it should be noted was not published until after the judge had handed down her decision, a judge ought now approach the task '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.[1]

6 Judged according to that test, I agree with Dixon AJA that the judge was in error in failing to ask first whether there was a substantial organic basis for the pain and suffering consequences on which the appellant relied and then in failing to find on the balance of probabilities that there was.

7 Accordingly, I too would allow the appeal and grant leave to bring proceedings.

8 I have had the advantage of reading the draft reasons of Nettle JA and Dixon AJA. I agree with them that the appeal should be allowed, and Mr Fokas should be given leave to bring proceedings for the pain and suffering consequences of the workplace injury he suffered in the course of his employment by the respondent.

9 I agree also with Nettle JA's additional comments concerning the distinction which the Act demands be made between the organic and psychological or psychiatric consequences of workplace injuries; and with his statement that the judge below made an admirable attempt to grapple with the difficulties which that distinction entails.

10 This is an appeal against a decision of a County Court judge on an application under s 134AB of the Accident Compensation Act 1985. The court refused leave to the

appellant/plaintiff to issue common law proceedings with respect to a workplace injury to his lumbar back.

11 I would allow the appeal. There is specific error in the conclusions of the primary judge.[2] For my part, on the evidence and other material that was before the primary judge, I am satisfied that the appellant's injury is a serious injury.

12 On 20 February 2007 in the course of his employment, the appellant suffered an injury initially diagnosed as a low back soft tissue injury, possibly with a minor disc derangement. The question was whether this injury had wholly resolved with insufficient consequent impairment, after discounting psychological or psychiatric consequences, or whether there remained, from the accident, an injury causing permanent impairment, the consequences of which met the statutory test.

13 The primary judge described the application as 'a particularly difficult case to assess'. The appellant also complained of pain and suffering consequences in his upper back and arms, while some of the medical evidence suggested that psychological or psychiatric conditions contributed to the plaintiff's pain and suffering consequences.

14 The appellant had returned to work and the application was limited to leave to issue proceedings for damages for the pain and suffering consequences only of the workplace injury. The appellant relied on paragraph (a) of the definition of 'serious injury' in s 134AB(37) of the Act, contending he had a permanent injury to the lumbar spine. In these circumstances, as the primary judge correctly recognised, the psychological or psychiatric consequences of a physical injury are not taken into account.[3]

15 I will briefly explain the accident. The respondent, a labour hire company, employed the appellant as a labourer. The appellant had been placed by the respondent to work at Watson Automotive where he was required to pull brake components out of a large container with a hook in a repetitive manner. He also sorted these brake components, each weighing about five to eight kilograms, into containers. The work was heavy and repetitive.

16 The appellant injured his back when pulling brake components out of a large container. He immediately experienced pain in his lower back extending into his left buttock. The appellant had experienced some mild aching in his back and neck during his work prior to this day although it was not sufficiently severe to warrant time off work or medical attention. The following day the appellant attended his general practitioner who diagnosed a muscular strain and prescribed anti-inflammatory medication. His condition worsened and he attended on his general practitioner two days later. A CT scan revealed 'small central disc protrusion at L5/S1'. Some muscle relaxant was added to his medication regime and physiotherapy was recommended. His continuing symptoms included left leg sciatica, which later resolved.

17 Although he was unable to work for two and a half years following the accident, the appellant returned to work in an office environment.

18 On 22 October 2009, the respondent accepted liability for the appellant's claim for compensation pursuant to s 98C of the Act in respect of the lower back injury but rejected the claim in respect of neck and left shoulder injuries. In partially accepting the claim, the respondent included the symptoms in the appellant's left leg and buttock as referred pain from his lower back.

19 At the hearing below the appellant was the only witness to give viva voce evidence. He was cross-examined on three affidavits. The appellant's wife, who swore a supporting affidavit, was not cross-examined. Numerous medical reports were tendered by both parties but no medical practitioner was called for cross-examination on his or her report. Conflicting findings and conclusion were evident in the medical reports. Conducting the case in this way rendered more difficult the primary judge's task.

(a) The pain and suffering consequences of the injury did not have an organic basis.

(b) On the balance of probabilities, any workplace injury had resolved. To the extent that the appellant may be said to continue to suffer consequences from impairment referable to the workplace injury, the primary judge was not satisfied that such consequences could be adequately identified, but if they could be referable to the workplace injury, the primary judge was not satisfied that such consequences were permanent; and

21 The primary judge initially expressed herself satisfied that 'taking the plaintiff at face value' (whatever that means) the consequences described by the plaintiff would satisfy the statutory test for serious injury. All that the primary judge can be taken as saying is, I think, that the consequences described by the plaintiff amounted to a 'serious injury', provided her Honour found permanent impairment caused by the accident that was not attributable to psychological or psychiatric conditions.

22 In finding that there was no organic basis to the injury, the primary judge set out, in detail, those parts of the medical reports that persuaded her:

The essence of these opinions is that the plaintiff, at most, suffered a soft tissue injury which has resolved; the plethora of symptoms which have emerged since are not explicable by reference to any radiological investigation or other identifiable organic cause; and the osteopathic treatment and significant pain medication is contra indicated.

23 The primary judge was persuaded that there was a powerful body of specialist opinion that roundly discounted any persisting injury and explained the plaintiff's presentation essentially in terms of psychological factors. Preferring those opinions in the absence of any objective radiological findings or neurological signs to other medical opinions, the primary judge was unable to be satisfied of the precise nature of any underlying organic injury, or that any such injury was referable to the workplace injury.

24 This 'powerful body of specialist opinion' was the reports of Dr Barton, Dr Patrick, Mr Kierce, and Dr Karna. These opinions first persuaded the primary judge that the low back sprain, a soft tissue injury that was the basis of the original diagnosis, had resolved. Psychological factors caused any persisting symptoms evident in the plaintiff's presentation. Second, there was in the radiological findings a total absence of any objective findings or signs. A CT scan on 23 February 2007 revealed a small central disc protrusion at L5/S1. A whole spine MRI on 8 October 2007 reported:

There is normal alignment of the lumbar spine and no focal bony lesions or compression fractures present. The intervertebral discs, facet joints, central canal and foramina are normal. There is no nerve root compression or thecal sac compromise. Paraspinal soft tissues are normal.

These investigations were consistent with the expressed conclusions that the left leg sciatica had resolved. The primary judge was unable to be satisfied as to either the precise nature of any underlying organic injury or whether such injury was referable to the workplace injury.

25 Assuming that the consequences the plaintiff continued to suffer were referable to the workplace injury, the primary judge was not satisfied of the nature or permanency of the plaintiff's current impairment. The appellant contended that the consequences he continues to suffer were referable to the workplace injury; from an impairment variously described as facet joint dysfunction or low lumbar intervertebral joint malfunction. In so contending, the appellant emphasised the opinion of Mr Shannon on which the respondent accepted liability and the contemporaneous assessments of Dr Thomas and Mr Muir. The primary judge rejected the contentions, concluding that this diagnosis of facet joint dysfunction was

25 speculative. The primary judge considered that the appellant's consequences of impairment were more consistent with a condition inexplicable by reference to any physical basis.

26 Influential in the primary judge's reasoning was evidence that, on the assessment of his response to diagnostic remedial branch block techniques, the appellant was now a good candidate for radio frequency neurotomy. Accepting the advice of the treating specialist, Mr Muir, the primary judge found that if the plaintiff underwent radio frequency neurotomy then, without any guarantee, the plaintiff would be expected to experience 'a significant prolonged improvement in [his] pain with commensurate change in function and reduction in medication requirements'. The primary judge reasoned it was at the very least premature to designate the current claimed consequences as permanent.

27 At the outset of oral argument, the appellant abandoned grounds 1-4 and 11 of the Notice of Appeal and no longer contended that the decision below was plainly wrong or wholly erroneous.

28 My preliminary observation is that, by not approaching the issues in the correct sequence, the primary judge's approach is susceptible to error. Her Honour commenced with her finding that the consequences described by the respondent would satisfy the statutory test, but as this court explained in Barwon Spinners Pty Ltd.[4]

... In practical terms, one can scarcely proceed to consider the consequences to the plaintiff of either the injury or the impairment before one has identified precisely the nature and extent of the injury relied upon and of the consequent impairment of a body function said to have been produced. A necessary part of that task of identification will be to determine how far, if at all, the alleged impairment is permanent, in the sense of likely to last for the foreseeable future. Only then, it seems to us, can one proceed to the inquiry about the consequences for the plaintiff: are the consequences such

that they satisfy the 'very considerable' test set forth in paragraphs (b) and (c)? Thus, in order the questions must be: first, what is the injury and what is the impairment said to be produced in consequence; secondly, is the impairment permanent, i.e., likely to last for the foreseeable future; and thirdly, are the consequences for the plaintiff such as to satisfy the 'very considerable' test? If the answer to the second or third of these is no, the injury is not a serious injury as defined by paragraph (a) of sub-s.(37). If the answer to both is yes, it is a serious injury, but then one has identified an impairment which is both permanent and serious (as defined) and the fact that the impairment is permanent will obviously have been a consideration when weighing the consequences; after all, they are the consequences of that impairment. It is hardly likely, if the impairment of the body function will probably last for the foreseeable future, that the consequences upon which the plaintiff relies to satisfy the 'very considerable' test will be otherwise.

29 The primary judge's specific errors lies firstly in failing to have proper regard to the respondent's acceptance of liability for the injury and secondly in finding, on her assessment of the medical evidence, that there was no organic injury that explained the respondent's present pain consequences.

30 Each of the opinions of Dr Barton, Dr Patrick, Mr Kierce, and Dr Karna, accepted by the primary judge, had been expressed by March 2009. On 22 October 2009, the respondent accepted liability for the appellant's lower back injury stating that the left leg and buttock symptoms were considered to be referred pain from the lower back injury. The respondent's admission of liability was based upon the assessment of Mr Michael Shannon. Mr Shannon was informed of the results of the CT scan in February 2007 and the MRI scan in October 2007. He concluded:

As a result of the incident at work, [the appellant] sustained a low back strain and possibly a minor lumbar disc derangement. He had some symptoms consistent with sciatica which was subsequently resolved and his scans did not reveal a significant prolapse. Clinically he does have ongoing restriction of movement of his back, but there is no objective evidence of radiculopathy.

31 The appellant submitted, and I agree, that the primary judge in her reasoning has not properly considered the respondent's admission of liability, either by reference to the assessment on which it was based, or the consequences the flow from the respondent's later payment for Mr Muir's pain relief procedures.

32 Ashley JA observed in Ansett Australia Ltd v Taylor[5] that an acceptance of liability under s 104B(2) has an evidentiary effect only, as an admission by the respondent that the claimant sustained such an injury. His Honour continued:

Such an admission should ordinarily be regarded as very significant, however, having regard to the serious consequences for the Authority flowing from the acceptance of a claim.[6]

Those serious consequences flowed not only in respect of compensation payable under s 98C or s 98E, but also, potentially, with respect to s 134AB(3) and (15). Although such an admission should ordinarily be regarded as very significant, it is not conclusive, as a defendant in a particular case might be able to explain its conduct satisfactorily.[7]

33 In the present circumstances, the significance of the admission was two-fold. First, the appellant was paid compensation from 22 October 2009 for permanent impairment flowing from the acknowledged injury. This consequence stood in stark contrast to the contention of the respondent at trial, based on earlier medical opinion, that the injury had resolved.

34 The second significant aspect of the admission arises because the plaintiff's symptoms continued and he was referred to Dr Thomas, a rehabilitation physician who saw him in January 2011. Dr Thomas referred the appellant to Mr Muir whose opinion was that periodic radio frequency neurotomies may be indicated if diagnostic blocks suggested a significant pain generated from lumbar structures. This proposed investigation was approved of, and paid for, by the respondent during the months prior to the hearing of the application. These circumstances ought to have led the primary judge to conclude that the respondent was accepting liability, by its conduct in respect of Mr Muir's treatment, for ongoing pain at the time of the application that was the result of the compensable injury. That is so because payment by the respondent for the appellant's diagnostic pain-blocking procedures is acceptance of the existence of ongoing pain that is the result of the compensable injury.

35 The appellant contended that these matters were all put fairly and squarely to the primary judge and necessarily undermined reasoning that was uncritically based on the opinions of Dr Barton, Dr Karna, and Mr Kierce without persuasive explanation of the very significant, if not conclusive, fact of the respondent's admission of liability and payment for pain-blocking procedures. The respondent did not explain its conduct by evidence at trial and the primary judge's reasoning is silent about the circumstances of the admission and payment.

36 The respondent contended, as I followed counsel's argument, that because the MRI scans post-dated the admission of liability and revealed normal facet joints, the conclusions of the practitioners who identified functional overlay were later supported by the absence of radiological support for an unresolved organic cause of the pain symptoms. By that submission, the respondent supported the reasoning of the primary judge. The respondent contended that nothing said in Ansett Australia Ltd v Taylor shifted the burden of proof from the appellant and that there was scope for debate about what the injury was, having regard to the way the appellant put his case, which was as a facet joint case. Counsel contended that the respondent was paying for the appellant's medial branch blocking procedures with Mr Muir because the pain might still be related to the soft tissue injury. However, counsel put this explanation of the respondent's conduct as a possibility. There was no evidence of explanation from the respondent of its conduct constituting the admission before the primary judge. The submission is not only speculative but inconsistent with the respondent's contention that the primary judge correctly found that the soft tissue injury had resolved.

37 The respondent contended that the admission was limited to the purposes under s 98C of the Act that resulted in payments for the soft tissue claim. Payment for the medial branch blocking procedures was not an admission of facet joint problems. Rather it was not desirable to encourage insurers not to pay for procedures that might dull the pain from the admitted injury. The admission could not be interpreted as extending to a causal relationship between the pain and the facet joint injury.

38 I am not persuaded by this submission, as I would not, in the absence of evidence explaining the basis for payment for the medial branch blocking procedures, accept counsel's speculation as a probable inference. It is more probable in my view that the respondent approved that payment based on Dr Thomas and Mr Muir's reports and would not have concluded from those reports that the procedure was recommended to dull the pain from a resolved soft tissue injury.

39 Turning to the question of error in assessment of the medical evidence, although the primary judge characterised the later medical opinions as speculative, she was erroneously placing greater weight than was warranted on the results of the MRI scans. Rather than being speculative, Dr Thomas, Mr Muir, and the plaintiff's GP, Dr Kiley each recognised a variance between the radiology results and their clinical findings, and their properly reasoned opinions supported a finding of permanent impairment causing pain and suffering consequences.

40 The appellant submitted there was clear evidence of organic injury. Commencing with the appellant's oral testimony, counsel drew particular attention to the following passage:

What pains do you have from day to day at the present time?---It's in the buttock area and the lower back.

Buttock area and the lower back?---Correct.

Is the pain constant?---Constant.

Is it sharp or can you describe it?---Sharp and blunt, depending on the movements.

Is it in the same place as it was when you saw Dr Wattegama in February 2007?---Yes, it is.

So it's just more confined, is it, in which you don't have left leg pain?---Correct.

After cross-examination and surveillance video evidence, the primary judge found the appellant to be a witness of credit. In addition to the respondent's admission, the primary judge should have acted on the appellant's pain complaints as being indicative of and/or confirmatory of compensable injury as at the date of trial. The primary judge neither did so, nor explained her reasons for not doing so.

41 The appellant contended that evidence of a continuum of complaints of ongoing spinal and buttock pain from February 2007 to the present time was not challenged, contributing to a body of evidence that demonstrated the existence of an unresolved, or permanent, organic injury. The primary judge's finding that there was no reason to disregard histories provided to medical practitioners who examined the appellant also supported that conclusion. Further, treating practitioners confirmed by clinical examination the appellant's continuing specific complaints of pain when providing his history.

42 The respondent supported the conclusion of the primary judge. It contended that the medical opinions that psychological factors explained the ongoing pain after the substantial resolution of the soft tissue injury were sound and well supported, particularly by the radiological evidence. The respondent submitted that the primary judge was correct in dismissing the facet join theory as speculative.

43 The primary judge's acceptance of suggestions of exaggeration, functional overlay or other psychological factors and reliance on the total absence of objective radiological findings or neurological signs was reasoned without acknowledging either the consequences of accepting the appellant's evidence of pain or the clinical findings of both treating and forensic medical practitioners from October 2007 to the present time. I am satisfied that this reasoning demonstrates error in the analysis of the medical evidence.

44 First, there was consistency in the plaintiff's descriptions of specific pain from the accident to the present time, as sharp and blunt, depending on the movements. This description was not of pain associated with a pain syndrome or psychological overlay because it first commenced with organic injury and was later confirmed by clinical examination. It was consistent with the clinical findings reported by Dr Kiley, Dr Thomas, Mr Shannon, Mr Muir, and Mr Williams.

45 Second, the respondent's admission of liability was based upon the assessment of Mr Shannon, who had been informed of the results of the CT scan in February 2007 and the MRI scan in October 2007. He concluded:

As a result of the incident at work, [the appellant] sustained a low back strain and possibly a minor lumbar disc derangement. He had some symptoms consistent with sciatica which was subsequently resolved and his scans did not reveal a significant prolapse. Clinically he does have ongoing restriction of movement of his back, but there is no objective evidence of radiculopathy.

46 Thirdly, when Dr Thomas examined the appellant in January 2011 he ordered a further lumbar spine MRI and reported that although the MRI result was normal, the appellant had specific and quite localised tenderness to the left lower lumbar spine and over the left sacroiliac region. Extension was more painful than flexion. Dr Thomas felt it may have been a posterior related pain problem such as the facet joint and suggested that he be seen by Mr Muir for consideration of medial branch blocks to try and determine the source of his pain and if this was possible to then look at denervation procedures.

47 Fourthly, Mr Muir's findings on his examination of the appellant in April 2011 were consistent with the opinion of Dr Thomas. He concluded the appellant was suffering from pain as a consequence of damage to the lumbar spine and sacroiliac joint and was likely to suffer from ongoing pain from these structures for the indefinite future. Mr Muir arranged to perform diagnostic medial branch blocks on both the lower lumbar facet joints and the sacroiliac joints after seeking the respondent's permission to proceed. Later he reported that two sets of medial branch blocks had been performed and on both occasions the appellant reported, in the early post-operative phase, near 100 percent pain relief. The patient's analgesia had been 50 percent or better for a period of eight hours. Potentially the appellant would be a good candidate for radio frequency neurotomy. Mr Muir performed the medial branch blocks at the lumbar level only, which supports the clinical observations of a number of practitioners that low lumbar intervertebral, or facet, joint malfunction is a cause of the appellant's pain.

48 Particularly in the absence of cross-examination of Mr Muir, it is reasonable to infer that that he contemplated the medial branch blocks procedure to assess the appellant for radio frequency neurotomy acting on his clinical finding that he was treating an organic injury. His reports do not suggest that he was treating a psychiatric or psychological injury. The respondent submitted that the appellant's own evidence that the diagnostic blocks only blocked 50% of the pain cast doubt on the identification of a pathological component in the organic spine, but that was a matter, not for submission but for cross examination of Mr Muir.

49 What then was the causal connection between the low lumbar intervertebral joint malfunction, particularly on the left sided facet joints and the accident? In my view, the evidence plainly supported the conclusion that the accident was a cause of this present impairment.

50 First, the respondent admitted the causal connection by its acceptance of liability. In my view, it follows on the respondent's acceptance of liability for a compensable injury and acceptance of Mr Muir's recommendation for further treatment that the compensable injury was a cause of the pain that the appellant is presently experiencing. That left the respondent with two options. The first, as the learned presiding judge suggested in argument, is that the respondent could establish that the appellant's pain experience was not serious. The second, as Ashley JA suggested in Taylor, was that the respondent might explain satisfactorily that its conduct in paying for the further treatment is other than a very significant admission. However, in this case the respondent did neither.

51 Second, the primary judge accepted the evidence of the appellant. The appellant's complaints of pain, and clinical findings supporting those complaints, can be traced through the medical evidence with reasonable consistency from the time of the accident. The conflict in the medical opinions lies in whether or not the cause of that pain is organic injury.

52 Third, there was evidence from Dr Kiley, that in August 2007 his opinion was that the appellant's 'main problem' was facet joint dysfunction and that an L5 lumbar disc prolapse was, on the clinical evidence, resolving.

53 Fourth, there was the opinion of Mr Shannon, based on history, examination, and reports, of a possible minor disc derangement in addition to lumbar back strain, because of the work accident. It is important to appreciate that as the low back strain, associated with soft tissue injury, and the referred leg pain associated with the disc injury resolved over time, attention shifted to the low lumbar intervertebral joint malfunction, the facet joint issue, from which the appellant continued to experience significant pain.

54 For these reasons, the primary judge fell into error when she found that any workplace injury sustained by the plaintiff had now resolved. The primary judge's further finding that, to the extent that the plaintiff may be said to continue to suffer consequences from impairment referable to the workplace injury, such consequences cannot be adequately identified must also be erroneous. That question could not be addressed until the relevant impairment referable to the workplace injury was identified. Neither of these findings can be sustained on the evidence.

55 For these reasons, I would allow the appeal. It is not necessary in the circumstances to remit the matter to the County Court. Neither party submitted that this court should do so. I am satisfied that as a result of the workplace accident, the appellant sustained an injury in addition to the low back soft tissue injury that has resolved, being a low lumbar intervertebral, or facet, joint malfunction. The next question is whether that impairment is permanent, in the sense of likely to last for the foreseeable future.[8] The opinions of Dr Kiley, Dr Thomas, Mr Muir, and Mr Williams provide a sound evidentiary basis for concluding that the identified impairment is likely to last for the foreseeable future. The primary judge wrongly came to the opposite conclusion because Mr Muir had advised that if the plaintiff underwent the radio frequency neurotomy then, without any guarantee, the plaintiff would be expected to experience a significant and prolonged improvement in his pain with commensurate change in function and reduction in medical requirements. However, the evidence was that those expectations, if realised, were not permanent and the treatment would need to be repeated on a regular basis. Although that consequence may be relevant in assessing the seriousness of the pain consequences of the injury, it does not warrant the conclusion that the impairment is not permanent.

56 The conclusion of the primary judge, that taking the appellant at face value, the consequences of his pain and suffering would satisfy the statutory test for serious injury, lacked a proper basis, for the reason explained in Barwon Spinners. It is necessary for this court to reconsider the evidence of the pain and suffering consequences.

(a) of a low lumbar intervertebral, or facet, joint malfunction presently producing pain that responds to medial branch block procedures, and

(b) that the respondent's admission of liability includes accepting responsibility to pay for pain relieving techniques,

I am not persuaded that the pain consequences identified by the appellant's evidence are explained to any significant extent by psychological or psychiatric conditions.

58 As I have noted, there was no attempt to discredit the appellant's affidavit evidence, and the supportive evidence given by the appellant's wife went unchallenged. The primary judge reproduced substantial extracts from the appellant's evidence and from the medical reports, but I do not think it necessary to burden this judgment with the like exercise. I am satisfied, having read all of the affidavits and reports, and the transcript of the hearing below, that the evidence supported the following findings.

(a) The pain of which the appellant complains has been relatively constant, and consistent in its nature. The appellant's description of that pain, constant since February 2007, is set out above.

(b) The appellant is taking Tramadol four to five days a week, but his medication is only making his pain more manageable.

(c) The symptoms are persisting, and likely to persist into the foreseeable future.

(d) The appellant stated that, despite regular attendances variously on physiotherapists, osteopaths, chiropractors, natural and acupuncture therapists; all he had done was to learn to live with the pain.

(e) His pain is worse with prolonged sitting or standing.

(f) There is a possibility of pain relief in the future, if the radio frequency neurotomy procedures are effective.

(g) At best, radio frequency neurotomy procedures will provide temporary relief of the appellant's pain symptoms that otherwise are likely to be ongoing into the foreseeable future.

(h) The branch block procedures performed to date have only provided temporary, short term, pain relief.

(i) The appellant's pain has affected his personal intimacies with his wife. His capacity to assist his wife with his young family (three children under four at the time of trial) was restricted by his inability to handle them, including lifting and twisting. Although the applicant's wife performs the vast majority of domestic chores, to a certain extent such activities, particularly with children, were unavoidable and cause pain.

(j) The appellant's pain has restricted his social activities and curtailed his recreational activities, including sports.

59 I am satisfied, on the balance of probabilities, that the appellant has discharged the onus of showing that the pain and suffering consequences caused by the appellant's low lumbar intervertebral, or facet, joint malfunction, a permanent serious impairment, satisfy the statutory criterion of being 'more than significant or marked, and ... at least very considerable'.[9]

60 Accepting that there is an organic impairment with significant consequences, I am not persuaded that in this case the appellant was obliged to disentangle any consequences of psychiatrically responsive pain.[10]

61 Finally, Mr Robin Williams provided a medico-legal report for the respondent following his examination of the plaintiff in July 2011. He noted that the CT scan in February 2007 was probably no longer relevant and that the more recent MRI scans did not show any significant abnormality. Mr Williams also preferred to express his conclusions upon his clinical examination noting that the restricted movement that he observed in the appellant's lumbar region was probably consistent with facet joint malfunction. He concluded that the appellant probably suffered acute low lumbar myofascial strain on the left side without significant radicular symptoms and he was probably suffering from low lumbar intervertebral joint malfunction, particularly on the left sided facet joints. Although it appeared to Mr Williams to be difficult to relate directly the appellant's present condition to the incident of injury in February 2007, he was persuaded, in expressing his view, by the continuity of symptoms from that time.

62 It is clear that these medical specialists did not regard radiological findings as definitive. There was a clear body of specialist medical opinion, based in clinical assessment, that the appellant suffered not only a soft tissue injury but also a facet joint dysfunction in the workplace accident and the former injury, but not the latter dysfunction, had resolved.

63 I would allow the appeal and order that the judgment and orders of the subject of appeal be set aside and in lieu thereof I would grant the appellant leave, pursuant to s 134AB(16)(b) of the Act, to bring proceedings for the recovery of damages for pain and suffering only.

[1] Meadows v Lichmore Pty Ltd [2013] VSCA 201, [21]-[22] (Maxwell P).

[2] Murray Goulburn Co-Op Co Ltd v Filliponi [2012] VSCA 230; Hawkins v DHL Express (Aust) Pty Ltd [2013] VSCA 26.

[4] Barwon Spinners Pty Ltd & Ors v Podolak [2005] VSCA 33, (2005) 14 VR 622, [33].

[5] [2006] VSCA 171 (31 August 2006).

[8] Barwon Spinners Pty Ltd & Ors v Podolak [2005] VSCA 33, [34].

[10] Compare Zivolic v Hella Australia Pty Ltd [2007] VSCA 142 (14 June 2007), [19].

Compensation Act 1985

Fokas v Staff Australia Pty Ltd [2013] VSCA 230

At a glance

Court

Decision date

Before

Source

Judgment (93 paragraphs)

Fokas v Staff Australia Pty Ltd [2013] VSCA 230 (12 September 2013)

Parties

Legislation Cited (1)

Cases Cited (1)