Foster v Victorian WorkCover Authority [2026] VCC 314

(a) What are the permanent impairment consequences of Ms Foster's compensable lower back injury?

(b) Are those impairment consequences "serious"?

(c) What are the permanent impairment consequences of Ms Foster's compensable left shoulder injury?

(d) Are those impairment consequences "serious"?

1. The relevant legal principles are well known and were not in dispute.
2. For the reasons that follow, I find the plaintiff has satisfied her onus of establishing that the permanent impairment consequences of her compensable lower back injury can be fairly described as more than "significant" or "marked" and "at least very considerable" when compared to the range of possible impairments. That finding entitles Ms Foster to issue proceedings claiming pain and suffering damages in respect of all injuries sustained in the incident. It is therefore unnecessary to consider the claim in respect of her left shoulder impairment.

1. The following matters of background are not, I believe, controversial. As far as any part is contested, these represent my findings save where indicated.
2. Ms Foster was born and brought up in Melbourne. She completed Year 12.
3. After leaving school, Ms Foster worked as a factory hand for about five years, as a laboratory assistant for about a year, and, briefly, as a secretary.
4. Ms Foster subsequently obtained a Certificate IV in disability support work at Gippsland TAFE. She worked in that sector in various roles until the birth of her first child.
5. In about 2004, Ms Foster enrolled at Monash University. She was awarded a Bachelor of Arts, majoring in history, politics and social welfare, in 2010.
6. After a period of maternity leave, Ms Foster operated a small business selling children's clothes and homewares for about twelve years. Ms Foster also worked in a bakery, as a personal trainer and as an events manager.
7. In about June 2018, Ms Foster began working for the employer as a youth support worker on a full-time basis.
8. On the day of the incident, Ms Foster slipped on some wet tiles near the front door of the property at which she was working. She landed on her lower back on the top step and felt pain in her left shoulder, neck and lower back.
9. Ms Foster attended her general practitioner ("GP"), the following day.
10. Ms Foster attempted some restricted duties with the employer after the incident. Her employment was terminated in early 2022, on the basis she was unfit for her pre-injury duties.
11. Ms Foster experienced psychological difficulties following the incident. In June 2023, she was admitted to Casey Hospital for about four weeks. The cause or causes for this admission were in issue between the parties.
12. In late 2023, Ms Foster worked for approximately two months at Foodworks, in the bakery, as a cashier and stocking shelves. She worked as a casual but progressed to full-time hours.
13. In December 2023, Ms Foster relocated to Queensland, where she continues to live.
14. In February 2024, Ms Foster began working as a crisis support worker at Rockhampton Men's Hostel. She continues in that role, albeit that she was on leave at the time of the hearing due to workplace issues.
15. Also in early 2024, Ms Foster started an online Bachelor of Laws degree at Central Queensland University. She deferred before the census date as she found studying and working full time was too much.
16. Ms Foster has had conservative treatment for her injuries, including physiotherapy, hydrotherapy and prescription medication.
17. Ms Foster currently has remedial massages for her spine and shoulders. She undertakes exercises in her local pool. She takes Escitalopram, Prodeine, Panadol Osteo, Valium and medicinal cannabis. She uses heat packs, ice packs and applies Deep Heat to her left shoulder and lower back.

What are the permanent impairment consequences of Ms Foster's compensable lower back injury?

1. Ms Foster relied upon two affidavits affirmed by her on 18 December 2024 and 29 January 2026. Relevant to her lower back injury, she deposed that:

(a) She has constant, variable, pain in her lower back. Her pain is worse when the weather is cold;

(b) Her lower back feels stiff and tight;

(c) She has constant "left leg nerve pain" which fluctuates in intensity;[1]

(d) She has constant numbness down the back of her left leg, extending to her two lateral toes, of varying intensity;

(e) She experienced urinary incontinence following her fall, which has improved, but still occurs from time to time;

(f) She struggles to bend, twist, turn and squat as such activities aggravate her lower back pain;

(g) She struggles to sit, stand and walk for prolonged periods;

(h) Her sleep is regularly disrupted by lower back as well as left shoulder pain;

(i) She has difficulty putting on shoes and socks due to her lower back pain;

(j) Her ability to undertake domestic chores, gardening and cooking is impacted by her lower back pain (as well as her neck and shoulder injuries);

(k) She is unable to return to playing soccer, participate in Zumba and has difficulty riding her pushbike for long periods.

(a) She had attended two different medical clinics in Queensland, namely Wandal Medical Centre and CQ Doctors. She attended Wandal Medical Centre because it was the only clinic she knew of at the time that prescribed medicinal marijuana. She attended that clinic once. Otherwise she has attended CQ Doctors every couple of months or so. Her prescriptions for medicinal marijuana are now provided by Alternaleaf via Telehealth consultations;

(b) Her GP in Queensland has tried to refer her for physiotherapy, but she has had trouble accessing it "because I'm a Victorian in Queensland".[2] She has found three good masseuses, and has treatment on her back and shoulders each week or two;

(c) In a bad week, she takes Prodeine every day, but mixes it up with Panadol and Valium. She denied that there might be a week where she did not take Prodeine. Ms Foster did not accept that she had only had one prescription for Prodeine since November 2024, that is in December 2025, and was sure she had always had Prodeine available, whether prescribed by her GP in Melbourne or a GP in Queensland. Ms Foster said that a packet of 40 Prodeine tablets generally lasts two to three months;

(d) She currently lives alone in a two-bedroom house;

(e) Her role as a crisis support worker is mentally challenging. It involves providing advice and support. There are minimal office duties. She works full time, including a sleepover shift about twice a week, and sometimes being on call. Ms Foster is also the union delegate. Every now and then, Ms Foster has taken a day or two off work because of her lower back, neck and/or shoulder symptoms;

(f) She visited her father in Bega in July 2025. She took the bus, which was a 20-hour trip. She said, "it was a killer" and she would never do it again;[3]

(g) It was not an exaggeration to say that her lower back pain was constant, but she agreed that it varies in intensity, and "it can be minimal at times".[4]

(h) She agreed that she told Mr Ash Moaveni, orthopaedic surgeon, that using her smartphone or computer for more than 30 minutes can exacerbate her neck, lower back and shoulder pain. She said that whether sitting or standing, holding and using her iPhone on speaker for a prolonged period can bring on lower back, neck and shoulder pain;

(i) She struggles to put on shoes and socks, but acknowledged that she is ordinarily wearing thongs or slip-ons as she is not currently working;

(j) The majority of nights she has poor sleep;

(k) If she has had a bad night and wakes up feeling stiff, she can have difficulty with her personal hygiene;

(l) She performs household chores, shopping and cooking, but on days when she is having a lot of trouble with pain, she will avoid those tasks;

(m) She agreed that between 2021 and 2023, she had marital difficulties. She said that her pain can cause her to be angry and irritable. She believed her admission to Casey Hospital in mid 2023 was partly due to her family issues and partly her compensable injuries. Ms Foster said she was broadly aware of what was written in the Casey Hospital admission notes. She agreed she was using cannabis at the time and had smoked cannabis intermittently for many years.

1. In re-examination, Ms Foster agreed there can be "moments" when she is free of lower back pain.[5] She estimated that in a typical month she may have five days where she would have less pain or be pain free.[6]
2. This is a convenient point to consider the medical evidence.

1. Two reports were tendered from Dr Hrstic, dated 22 October 2022 and 9 December 2025.
2. In his first report, dated 22 October 2022, Dr Hrstic noted that Ms Foster had only recently started attending Beaconsfield General Practice.
3. Dr Hrstic said that he understood Ms Foster had a diagnosis of urinary incontinence by her previous GP. He noted she did not use any continence aides. Dr Hrstic noted that an MRI scan of Ms Foster's lumbar spine in May 2022 "shows L5 nerve root compromise bilaterally".[7] He said Ms Foster should be seen by a good neurosurgeon.
4. Dr Hrstic further noted that Ms Foster was experiencing anxiety in the context of losing her regular GP, being made redundant, and feeling a lack of support from the insurer. His plan was to obtain her medical history and try and better understand her organic pathology. In the meantime, Dr Hrstic said he was certifying Ms Foster unfit for any suitable employment. He noted Ms Foster was trying to enrol in some further education.
5. In his second report, dated 9 December 2025, Dr Hrstic noted that in the incident, Ms Foster suffered a lumbar spine and left shoulder injury with intermittent urinary incontinence. She had been treated with physiotherapy and medications. Her symptoms had continued to be troublesome. She had not been seen at Dr Hrstic's practice since February 2024, as she had moved. When last seen, Dr Hrstic was of the view that her work-related symptoms were likely to be permanent, and Ms Foster did not have any capacity for suitable employment.

Extracts of clinical records of CQ Doctors and Paradigm Health on Princes

1. Limited extracts of clinical records were tendered recording prescriptions given to Ms Foster between 2022 and 2025.

1. A report was tendered from Dr O Conghaile dated 1 November 2023. He had a Telehealth consultation with Ms Foster that day.
2. Dr O Conghaile noted that Ms Foster reported suffering from persistent neck, left shoulder, left upper limb, lower back and left leg pain since the incident. Ms Foster reportedly described:[8]

"... average pain scores of 5/10 and substantial pain-related interference.

There is also substantial interference with day-to-day activities such as exercising, etc."

1. Dr O Conghaile reviewed an MRI scan of Ms Foster's lumbar spine and noted:[9]

"... This described moderate left and mild-to-moderate right L3 neural foraminal stenosis, mild-to-moderate bilateral L4 neural foraminal stenosis and multilevel facet joint arthropathy, most severe at L4-L5 and L5-S1."

2. Dr O Conghaile's impression was that Ms Foster's back pain was likely due to facet joint arthropathy, and her radicular left leg pain may be due to foraminal stenosis irritating the left L3 and L4 nerve roots. Dr O Conghaile requested permission to perform lumbar medial branch blocks targeting the lower lumbar levels.

1. A Mental Health Emergency Progress E-Note was tendered dated 30 June 2023,[10] together with an outpatient attendance note dated 31 July 2023.[11]

1. A report was tendered from Mr Raleigh dated 5 October 2021. He examined Ms Foster's left shoulder that day. He made no mention of her spine in the report.

1. Two reports were tendered from Mr Moaveni, dated 17 April 2025 and 23 January 2026. Mr Moaveni had a Telehealth consultation with Ms Foster on each date.
2. In his first report, Mr Moaveni noted Ms Foster's current treatment as follows:[12]

" ... weekly to fortnightly remedial massage, hydrotherapy and cold packs, predominantly to the neck and shoulders, but also to the lower back.

... Panadol Osteo, two to four tablets twice daily, Valium 1mg for pain management during sleep and Escitalopram for anxiety. In relation to her ongoing lower back pain, she has a prescription for medicinal Cannabis, which assists with sleeping."

(a) ongoing neck pain since the incident, which she rated at "six out of 10".[13] The pain can radiate into her arms, left worse than right;

(b) frequent ongoing pain and stiffness in her left shoulder, which she rated at "seven out of 10".[14] A few times a week she experienced headaches due to neck tension;

(c) pain in her right shoulder, which she rated as "five out of 10";[15]

(d) Constant pain in her lower back of varying severity, "between 6 to 8 out of 10".[16] She has a reduced range of movement in her back and "left leg nerve pain".[17] There is numbness down the back of the leg toward the lateral two toes;

(e) Incontinence since the incident.

1. Whilst Mr Moaveni reported his findings on physical examination, I note it was a Telehealth consultation. Dr Moaveni noted a reduced range of motion in the lumbar spine, and evidence of lumbosacral paravertebral tenderness and muscle spasm.
2. Mr Moaveni opined that Ms Foster suffered chronic soft tissue injuries to her neck, lower back and both shoulders in the incident. He thought the prognosis was guarded. He opined that her injuries, collectively, restricted her capacity for suitable employment.
3. In his second report dated 23 January 2026, Mr Moaveni noted that Ms Foster was not receiving any allied health treatment for her musculoskeletal injuries. She was taking codeine, diazepam and Panadol, and using heat packs, ice packs and deep heat. She continued to experience pain in her neck, shoulders and lower back.
4. Relevantly, on examination of Ms Foster's lumbar spine, Mr Moaveni made very similar findings to those he had made previously.
5. On this occasion, Mr Moaveni was asked to opine regarding Ms Foster's lower back and left shoulder injuries only. He diagnosed an aggravation of pre-existing lumbar spondylosis as a result of the incident. Mr Moaveni was of the view that as a result of her lumbar spine injury, Ms Foster was limited in relation to her employment activities as follows:[18]

"... standing tolerance of less than 30 minutes, sitting tolerance of less than one hour, walking for less than 30 minutes.

Additionally, Ms Foster has difficulty with bending and twisting, with an inability to lift heavy objects. She has difficulty ascending and descending steps, as well as walking on uneven surfaces."

Dr Simon Journeaux, consultant trauma and orthopaedic surgeon

1. A report was tendered from Dr Journeaux dated 4 September 2025. Dr Journeaux examined Ms Foster on 29 August 2025.
2. Ms Foster reported experiencing neck pain and headaches since the incident, as well as pins and needles and numbness in her upper limbs. She reportedly described experiencing constant sharp aching pain in her lower back, "ranging between 7-10/10 on a visual analogue scale".[19] Her pain was aggravated by any significant bending, twisting and lifting, and by prolonged sitting and standing. Additionally, Ms Foster described sharp, sciatic-type pain in her left lower limb.
3. On examination, Dr Journeaux relevantly noted:[20]

"She looks well and does not look to be overtly in pain ... gait is normal, and she can walk on her tiptoes and on her heels with some minor difficulty.

Examination of the spine in general reveals good posture and normal contours.

Examination of the thoracolumbar spine reveals normal contours. On palpation, there is no overt tenderness. There is no spasm or guarding.

Straight leg raise is 60 degrees right equals left limited by pain in the back and hamstring tightness."

1. Dr Journeaux relevantly diagnosed a musculoligamentous sprain/strain injury of the lumbar spine with aggravation of lumbar spondylosis. Dr Journeaux opined that Ms Foster's ongoing recalcitrant pain referable to her spinal column likely had a physical basis relating predominantly to constitutional lumbar spondylosis. He opined that:[21]

"... There may still be a contribution ongoing from the effects of the injury.

It should be noted, however, that her pain reporting is discordant with the known pathology. I note, however, there is no evidence of abnormal illness behaviour, and I do not believe there is any overstatement and embellishment in this regard.

I note, however, that she does score highly on the PHQ-15 indicating that a significant amount of her pain reporting has a basis in the somatic manifestation of psychological distress. I note there are some salient psychiatric issues in the past and psychosocial factors to do with her family which may influence her presentation in this regard."

1. Dr Journeaux was of the view that Ms Foster's condition was stable, and the prognosis was for ongoing symptoms for the foreseeable future.

1. Counsel for the VWA submitted that Ms Foster was not a credible or reliable witness. In support of this submission, counsel gave the following examples:

(a) Ms Foster's evidence as to her receipt of prescriptions for Prodeine after October 2024 was confusing and unreliable. In her second affidavit she deposed that she takes Prodeine three to four times a week.[22] Dr Hrstic prescribed 40, 500-milligram Prodeine caplets on 14 October 2024,[23] and the next prescription was for 40 caplets in December 2025 from Dr Chamila Pallewelage.[24] That is, the evidence of prescriptions did not accord with the asserted frequency with which Ms Foster took Prodeine;

(b) Ms Foster's evidence that simply holding her iPhone generates lower back, neck and left shoulder pain was dishonest and exaggerated;

(c) Ms Foster's evidence that part of the reason for her inpatient admission at Casey Hospital was a consequence of her compensable injury and her dealings with the WorkCover system was in contrast to the clinical extract from Casey Hospital which referred to substance abuse, constant use of THC, and family difficulties.

1. Counsel for the VWA submitted that where, as here, there is a lack of recent evidence from any treating doctor, the issue of Ms Foster's reliability becomes more telling.
2. Further, there was no evidence supporting Ms Foster's contention that she has experienced difficulties getting treatment in Queensland because she is a Victorian WorkCover recipient.
3. Counsel for Ms Foster submitted that she gave clear and forthright evidence. It was notable that Ms Foster's first affidavit was sworn two months after she had been given a prescription for Prodeine, yet she made no mention of it. Counsel submitted that the Court ought to be sufficiently satisfied that it can rely upon Ms Foster's evidence.
4. I find that there were some unsatisfactory aspects to Ms Foster's evidence:

(a) The very limited prescriptions of Prodeine - 40 tablets in October 2024, and no further prescription until December 2025 - stands in contrast to Ms Foster's evidence that she takes the medication three to four times a week. However, I note that Ms Foster did not depose to taking Prodeine in her first affidavit. The first time Ms Foster deposed to using this medication was in her second affidavit, affirmed in January 2026, in which she said "I take Prodeine 500mg 3-4 times per week".[25] On the whole of the evidence, it is more likely than not that Ms Foster uses Prodeine on average, two or three times a week;

(b) Ms Foster's evidence that holding her iPhone causes her low back and shoulder pain was an exaggeration;

(c) The reasons for Ms Foster's psychological difficulties requiring treatment as an inpatient at the Casey Hospital were more complex than she asserted. However, the history given to the Casey Hospital was primarily provided by persons other than Ms Foster, and I bear in mind the caution with which clinical records should be approached. I accept that Ms Foster's compensable injury and its knock-on effects played some part in her presentation.

1. Notwithstanding the somewhat unsatisfactory aspects of Ms Foster's evidence, I find that I can broadly accept her evidence as to her impairment consequences. There is a notable absence of any report from Ms Foster's current GP, and/or the practitioner prescribing medicinal cannabis; however, extracts of the clinical records from two GP clinics that Ms Foster has attended in Queensland were in evidence.
2. I am required to consider Ms Foster's evidence in the context of the whole of the evidence. I note, in particular:

(a) There was little controversy on the medical evidence that Ms Foster's compensable injury was an aggravation of pre-existing asymptomatic lumbar spondylosis;

(b) Ms Foster's description of her lower back impairment consequences to Dr O Conghaile and Mr Moaveni was broadly in accord with her affidavits and oral evidence;

(c) Neither Dr Moaveni nor Dr Journeaux found evidence of abnormal illness behaviour or exaggeration.

1. I do not accept Dr Journeaux's opinion that Ms Foster's symptoms are discordant with the known pathology. That opinion is insufficiently explained and appears to be at odds with his acceptance that the pathology could be asymptomatic or symptomatic.
2. I find that the Ms Foster has suffered an aggravation of lumbar spondylosis.
3. I am satisfied that the impairment consequences of Ms Foster's lumbar spine injury are permanent in the requisite sense.

1. I find that Ms Foster suffers from ongoing pain of variable severity. There are times when she has no or minimal lower back pain, but I accept her evidence that this is only about five days in a month. Her pain is generally activity dependent, and she tries to avoid exacerbating her pain by modifying what she does or how she undertakes a task.
2. I find that Ms Foster likely uses Prodeine a few times a week, Panadol Osteo each day, Valium approximately weekly, and medicinal cannabis.

1. Ms Foster's lower back injury has been treated conservatively. She was willing to undergo the medial branch blocks suggested by Dr O Conghaile in late 2023. These were not approved by the authorised insurer, and Ms Foster has not sought to challenge that determination. She has had no physiotherapy since 2024, and currently has remedial massages approximately monthly.[26]
2. Her treatment could be described as modest.

1. I find that Ms Foster experiences regular sleep disturbance by reason of her lower back pain.

1. Ms Foster struggles to sit and stand for prolonged periods as this aggravates her lumbar pain.

1. Ms Foster has retained a capacity to work full time.

1. Ms Foster is generally able to undertake her activities of daily living and personal care. She can have difficulty in the morning if she has had a bad night and is very stiff. She struggles to put on shoes and socks.

1. Ms Foster lives alone and is usually able to perform domestic tasks. If her pain is more severe, she avoids domestic activities until the severe pain has subsided.

1. I accept that Ms Foster has suffered some impact to her social and recreational pursuits. This includes her inability to play soccer and participate in gym activities, including boxing, weights and Zumba classes.

1. In TTB SMS Pty Ltd v Reading,[27] the Court of Appeal said:

"... The evaluation required of the trial judge, and this Court, involves a comparison of the worker's impairment not just with other impairments of the hand, but also with other types of physical impairment that may be suffered, including impairment of the brain, the spine and large joints such as the knee and shoulder. Those other physical impairments may involve constant pain, significant medical treatment and medication. They may involve sleep deprivation, or an inability or reduced ability to socialise or work."

2. I am required to consider the range of impairments and impairment consequences and not just those that come before the Court.[28] What has been lost must be considered, as well as what has been retained.[29]
3. Each case must be determined on its own facts. As the Court of Appeal observed in Stijepic v One Force Group Aust Pty Ltd & Anor,[30] determining applications such as this involves a value judgement in which matters of fact and degree and of impression are operative. Many similar fact situations produce a different outcome.
4. Ms Foster has retained the capacity to work full time. That does not preclude a finding that she satisfies the statutory threshold.
5. In making the value judgement required of me and considering the various impairment consequences Ms Foster suffers collectively, I find she has established the consequences of her lower back injury satisfy the requisite threshold. The impairment consequences which tip the balance here are Ms Foster's constant, variable pain, her medication regime and the impact on her social and recreational pursuits. In my view, when those matters are considered together with Ms Foster's frequent sleep interference, the consequences to her meet the relevant threshold.
6. Given that finding, it is unnecessary to consider Ms Foster's claim with respect to the impairment to her left shoulder.

1. Ms Foster is granted leave to bring a common law claim for pain and suffering damages for the injury to her lumbar spine sustained on 9 June 2021.
2. I will hear the parties on the issue of costs.

[5] T62 - the transcript recommences after page 63 with page 62. This reference was during the re-examination of the plaintiff on the initial T62

[10] Defendant's Further Amended Court Book ("DCB") 92

[27] [2020] VSCA 203 at paragraph [31]

[28] TTB SMS Pty Ltd v Reading (ibid)

[29] Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 at paragraph [27]

[30] [2009] VSCA 181