1 This appeal raises a question of continuing importance in serious injury litigation: how is a judge to decide a serious injury application in a case where the pain and suffering consequences relied on to establish the serious injury are attributable to both physical and psychological causes?

2 The starting point (where the injury is work-related) is s 134AB(38)(h) of the Accident Compensation Act 1985 (Vic) (the 'Act'). The Court, in assessing the pain and suffering consequences of an injury, must exclude the psychological or psychiatric consequences of that injury. It follows that, to establish serious injury, the applicant must satisfy the Court, on the balance of probabilities, that the organically based pain and suffering consequences satisfy the statutory criterion of being 'more than significant or marked and ... at least very considerable'.[1]

3 In the present case, there was a physical injury. Mrs Meadows had also developed a 'pain syndrome' or functional overlay.[2] The resultant pain and disability therefore had both physical and psychological aspects. The judge accepted that the pain and suffering consequences relied on did reach the 'very considerable' level,[3] but was not satisfied that those consequences had an organic basis. The application was therefore dismissed.

4 On this appeal, Mrs Meadows advances three contentions. The first is that the judge erred in law, either because he applied the wrong legal test or because the conclusion he arrived at was not open on the evidence. Secondly, it is contended that the judge failed to identify those consequences which did have a physical basis (that being a necessary part of the task) and hence failed to conclude, as he ought to have done, that there was a physical basis for the pain and suffering consequences. Thirdly, it is contended that the judge did not give adequate reasons.

(a) the judge did apply the correct legal test, and his decision was well open on the evidence;

(b) it was not possible on the evidence to separate the physical from the psychological causes of the pain and disability from which Mrs Meadows was suffering, or at least it was well open to the judge to conclude that they could not be separated; and

(c) the reasons given for the decision were entirely adequate.

The injury and its consequences****[4]

6 Mrs Meadows began working for the respondent in 2001. Her duties involved fast and repetitive packing and unpacking of a range of goods. In early 2007, she started to feel pain in her left elbow. In May 2007, she reported this problem to her supervisor and colleagues, and in June 2007 went to see her general practitioner.

7 From that time to the present, she has suffered pain in her left elbow which has required a range of treatment, including surgery in August 2008. She has not worked since May 2008 and claims to have no current work capacity. She claims that a range of social, domestic and recreational activities have been lost or significantly impaired.

8 Mrs Meadows claims the pain in her left elbow is present all the time, aggravated by various activities. She claims to have lost strength in the left arm, and gets pins and needles into the hands. She has significant difficulty with daily tasks, including showering and washing her hair. Her sleep is also affected. She drives a car, but only for limited distances. She has difficulty looking after her grandchildren. The heavier aspects of household work, including washing, vacuuming, cooking and cleaning are affected, as is her capacity to open jars and cut food. The restriction upon her domestic and social activities is confirmed in affidavits of her daughter and husband.

9 Mrs Meadows was referred to Mr David Booth, an orthopaedic surgeon, in June 2008. An MRI scan of her left elbow showed 'moderate common extensor origin tendinosis with small intrasubstance tear'. After consideration of various treatment options, Mrs Meadows underwent surgery on 12 August 2008. After the surgery, she continued with physiotherapy and anti-inflammatory medication.

10 Mr Booth reviewed Mrs Meadows on a number of occasions in 2008 and 2009. He described Mrs Meadows as suffering symptoms which were not related to the surgery or the left elbow condition. He said in evidence that, after her surgery, Mrs Meadows 'exhibited pain behaviour' which was widespread, involving neck and head pain and gastrointestinal problems. Mr Booth concluded that there was no organic basis for these symptoms. He said that Mrs Meadows' symptoms could not all be injury related. The areas of pain included the shoulder and neck and then the right elbow, which at times was worse than the left. This was part of a 'regional pain syndrome'.

11 In 2009, because of the lack of success of the surgical intervention, Mrs Meadows was referred to the Epworth Rehabilitation Hospital at Dandenong for a Pain Management Program. Upon review after the conclusion of the program, her condition had taken a downward turn, with increased levels of pain in the left arm. She had become depressed. Because of symptoms of ongoing depression, Mrs Meadows was referred to a psychiatrist.

12 There was discussion between Mrs Meadows, her physiotherapist and a representative from a rehabilitation provider as to the prospect of her returning to work in 2009. According to the physiotherapy report, Mrs Meadows was 'very anxious' about a return to work.

13 Dr Monika Patel, a general practitioner, gave evidence that Mrs Meadows' physical symptoms were accompanied by significant psychological overlay. Mr Christopher Pullen, an orthopaedic surgeon to whom Mrs Meadows was referred for a second opinion, found evidence of mild, early osteoarthritis, but also concluded that she had developed a pain syndrome.

14 Dr Clayton Thomas, a specialist in rehabilitation and pain medicine, first reviewed Mrs Meadows in November 2011, and from then on saw her every two months. He considered Mrs Meadows was suffering from chronic lateral epicondylitis in both elbows, far worse on the left than on the right. He noted that she had symptoms consistent with carpal tunnel syndrome, but also thought the symptoms were part of a pain syndrome. He considered her condition an organic one and unlikely to improve in the future.

15 Mrs Meadows brought an application for leave to bring proceedings pursuant to s 134AB(16)(b) of the Act. The body function said to be lost or impaired was the left elbow. The application was brought under subsection (a) of the definition of 'serious injury' contained in s 134AB(37) of the Act, and leave was sought in respect of both pain and suffering and loss of earning capacity.

16 Argument focused on the following passages of the judge's reasons:

The real issue for determination in this application is the nature and extent of a psychological overlay, or functional component, referred to by many of the practitioners. In essence, the issue is whether and to what extent I am satisfied that the plaintiff's current pain and disability in the left elbow has an organic basis, or whether the symptoms are due to the non-organic overlay.

The plaintiff gave evidence in a relatively forthright manner, although impressed me as someone very focussed upon her injury. If I were to accept the pain and disability she claims has substantially an organic basis, there is little doubt that the consequences to her of her left elbow injury do reach the 'very considerable' level as prescribed by the legislation. However, as stated, the real issue is the nature and extent of the organic component. That falls to be determined by my conclusions as to the medical evidence.[5]

...

In submissions [counsel for Mrs Meadows] argued the conclusion of Mr Pullen that there was a 'pain syndrome' was unhelpful and said there were findings upon his examination which showed ongoing physical injury. He said there was sufficient from [sic] the evidence of Mr Booth, Dr Patel and Mr Pullen that, although there was a pain syndrome present, physical examination confirmed the presence of symptoms specific to chronic lateral epicondylitis, sufficient to prevent the plaintiff working in her previous employment or any other form of employment to which she is suited by her education and experience. That, said [counsel], was enough for the plaintiff to clear the 'serious injury' bar.

While Dr Patel did say the physical aspect was stronger, she accepted the psychological component was substantial. Overall I assess Mr Booth's evidence as indicating the pain syndrome is a substantial part of the plaintiff's presentation. I read Mr Pullen's report as saying while there is a physical injury, and symptoms related to that, there is present a psychological component in the nature of a pain syndrome. The onus is upon the plaintiff to satisfy the Court the physical component is the prominent part.

It is always difficult in applications such as this to determine the extent to which a worker's symptoms have an organic as opposed to a psychological basis. I bear in mind the plaintiff has the onus of proving to me that the consequences of injury, from a physical basis, reach the "very considerable" level. I do not accept [her counsel's] argument that the opinions to which he referred showed the plaintiff's symptoms having a physical basis such as to prevent her from working. There is no clear opinion from those practitioners to that effect. The legislation makes it clear psychological consequences of a physical injury are not to be taken into account in determining whether that injury reaches the 'very considerable' level. In my assessment, and bearing in mind the opinions to which I have referred, I am not satisfied that the plaintiff's organic injury does account for all or even the bulk of her current range of symptoms and disabilities. I am not satisfied the plaintiff has sufficiently disentangled the physical from the psychological so as to satisfy me that her current condition is substantially physically based. There ought in my view [to have] been questions put in particular to the treating practitioners to enable the Court to clearly identify whether the pain and disability the plaintiff claims has substantially an organic basis. On the basis of the evidence as it now stands, I am not satisfied that is the case.

In all those circumstances, the plaintiff's application fails.[6]

17 It was submitted that the judge fell into error by stating that Mrs Meadows had to establish that:

• the physical component of the pain and suffering consequences was 'the prominent part';
• her current condition was 'substantially physically based'; and
• the pain and disability she claimed had 'substantially an organic basis'.

At the same time, her counsel conceded that his Honour had correctly stated the test when - earlier in the same paragraph of the reasons - he said that Mrs Meadows had 'the onus of proving to me that the consequences of injury, from a physical basis, reach the "very considerable" level'.

18 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.

19 This framework of analysis was said to owe its origin to the judgment of Ashley JA in Jayatilake v Toyota Motor Corporation Australia Ltd.[7] 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[8] 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.[9]

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.[10]

20 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.

21 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.

22 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.

23 Senior counsel for Mrs Meadows accepted that this was an accurate description of the way applications of this kind are conducted as a matter of practice. Indeed, the materials relied on by Mrs Meadows appear to confirm as much. For example, one of the questions posed by the solicitors for Mrs Meadows to Mr Kenneth Brearley, an expert medical witness, was in these terms:

In your opinion, does the core of Mrs Meadows' disability and symptoms stem from physiological factors?

Another practitioner, instructed by the solicitors for the plaintiff, answered what was presumably the same question, by saying that in his opinion there was 'mainly an organic component' to the symptoms from which Mrs Meadows suffered.

24 In my opinion, to approach the serious injury question in this way involves no error of law. As has been explained, this has developed as a rule of practice or convenience. It does not involve a new or different principle standing in place of, or in addition to, the statutory requirement. Rather, as counsel for the respondent have explained, this approach provides a shortcut, to the benefit of an applicant, where it can be seen on the materials that the consequences are substantially, mainly or predominantly referable to an organic cause.

25 It is clear from reading his Honour's reasons that that is why the 'substantial organic basis' question was asked in this case. His Honour was not purporting to state a different legal test, but was adopting an accepted analytical tool for assessing the evidence.

26 At the first step, the judge concluded that the evidence did not establish that the symptoms had a substantial organic basis. In my respectful opinion, that conclusion was well open on the evidence. Indeed, had I had to decide the question for myself, I would have come to the same view.

27 At the second step, his Honour concluded that the evidence did not enable a disentangling of the physical from the psychological. That is, it was simply not possible to separate out the physical from the psychological causes of the pain and disability. In my respectful view, that conclusion, too, was well open. When I deal with the remainder of medical evidence, it will be apparent why that was so.

28 Even if (contrary to my view) it was possible to distil from amongst the medical opinions one, or even two, which concluded that there was a direct nexus between physical causes and sufficient pain and suffering consequences to satisfy the statutory test, that would fall far short of establishing that the judge was bound to come to the conclusion that the statutory test was satisfied.[11] Senior counsel for Mrs Meadows conceded - properly, in my view - that that was a very difficult requirement to meet in a case like this, where the evidence pointed in different directions, and where there was a very substantial body of evidence pointing in the opposite direction.

29 This case illustrates that, when 'disentangling' becomes necessary, the state of the medical evidence will largely determine whether it can be done. As this experienced judge said in his reasons,[12] where at least some of the medical evidence suggests a significant psychological component, the evidence relied on by the applicant will need to be in a condition which will enable the Court to clearly identify whether and to what extent the pain and disability has an organic basis. Unless the evidence enables that distinction or differentiation to be made, it will be difficult for an applicant to establish on the balance of probabilities that the organic basis accounts for pain and suffering consequences which satisfy the test.[13]

30 I deal next with the question of whether the evidence made good the connection between the physical injury and the pain and suffering consequences. The evidence of Messrs Deacon, Brearley and Shannon, Dr Fraser and Professor Davis is relied on. What follows is taken from the judge's reasons.

31 Mr Owen Deacon, a consultant retained by Mrs Meadows' solicitors, noted:

I think we are looking here at a strangely persistent severe humeral epicondylitis involving [her] non dominant left elbow which I believe is work induced, and it has not responded to some of the usual treatments recommended.

...

I consider that employment has been a significant contributing factor to [Mrs Meadows'] injuries.

...

I believe that there is mainly an organic component to your client's pain...

32 The second consultant retained by Mrs Meadows' solicitors, Mr Kenneth Brearley, also diagnosed 'lateral epicondylitis of the left elbow', and noted:

[Mrs Meadows'] symptoms and disability are the result of the physical injury and they are thus physiological in nature.

[Mrs Meadows] does have an established chronic pain syndrome.

33 Mr Michael Shannon, in his report for the employer, stated:

Clinically Mrs Meadows has had bilateral lateral epicondylitis (tennis elbow).

...

If her work did involve repetitive lifting, [she] could argue that the condition was precipitated by her employment which would be a significant contributing factor.

...

[Mrs Meadows] has had bilateral tennis elbow (lateral epicondylitis) and I suspect that the conditions have substantially resolved or at least stabilised which is the natural history of tennis elbow.

34 Dr Kevin Fraser, rheumatologist, also reporting to the employer's solicitors, referred to a previous report where he had

pointed out that [Mrs Meadows'] claimed incapacity was totally out of proportion to the physical findings and that I considered that an adverse psychological reaction to the injury was largely responsible for any social or occupational dysfunction.

My previous conclusions are unchanged ... In my view, [Mrs Meadows] has long since recovered from any putative work-related injuries and her ongoing symptoms are solely due to non-organic factors of a psychosocial nature.

35 Finally, in a report for the employer, Professor Stephen Davis, a neurologist, said:

This patient initially developed problems of a very focal nature in the region of the left lateral epicondyle as it does appear likely that she initially had a work-related injury involving the soft tissues in the left extensor region ...

Her condition has evolved and progressed with gradual deterioration as previously described and there is no doubt that there is a very substantial psychological overlay as evident from the non-anatomical, functional features of an examination ...

[Mrs Meadows] has mild carpal tunnel syndrome ... However this is a very minor part of the overall diffuse pain syndrome.

36 The judge summed up the medical evidence in these terms:

Each of the plaintiff's general practitioners, who have treated the plaintiff on a regular basis, have concluded she suffers a pain syndrome. Dr Freund thought her prognosis was poor considering the psychological overlay. Dr Patel reached a similar conclusion, although said in evidence the physical component was stronger. Both of the treating orthopaedic surgeons, in particular, Mr Booth, considered there was a pain syndrome present. Mr Booth said the plaintiff's pain reaction after surgery was exaggerated.

Mr Pullen considered the plaintiff suffered some residual left elbow pain, but had developed a pain syndrome.

Dr Clayton Thomas, who has seen the plaintiff in 2011 and 2012, considered that her condition was 'certainly an organic one', although he thought the plaintiff did have a pain syndrome, at least in relation to her symptoms of carpal tunnel syndrome. His concentration over recent times appears to be in respect of the plaintiff's left shoulder.

The consultants retained by the plaintiff's solicitors, Mr Deacon and Mr Brearley, are of the view the plaintiff suffers epicondylitis. It is unclear from the opinion of Mr Deacon whether he had the MRI scan of May 2011, which stated there was no evidence of lateral epicondylitis. He noted the plaintiff did not bring any films with her. Mr Brearley thought the plaintiff was suffering from an injury which was organic and physical in nature, although he appears to accept there is a Chronic Pain Syndrome present.

From the defendant's camp, Mr Shannon considered the plaintiff did suffer left tennis elbow, although he thought the condition substantially resolved. Both Dr Fraser and Professor Davis consider the plaintiff as suffering a significant functional overlay or pain syndrome.

I have concluded I prefer the opinions of those practitioners who diagnose a Chronic Pain Syndrome or functional overlay. In particular, Dr Freund and both treating orthopaedic surgeons have come to that conclusion. In particular, Mr Booth performed the operative procedure upon the plaintiff, and was in a position to assess her reaction to surgery. He said the reaction was exaggerated.[14]

37 Particular complaint is made about the concluding passage. It is said that the reasons did not sufficiently explain why the judge preferred one body of evidence over another. In my opinion, that complaint is not made out. I accept the submission for the respondent that, reading the reasons as a whole and in particular having regard to what is set out in the preceding paragraphs, there is sufficient explanation of the judge's conclusion. That is, he considered that the opinions which he preferred provided the best account of the symptoms from which the plaintiff suffered. That conclusion was well open on the evidence, in my view.

38 It was submitted, by reference to wellknown authorities[15], that the reasons did not disclose a path of reasoning and did not enable Mrs Meadows to understand why it was that her application failed. I do not accept that submission.

39 In my opinion, his Honour's careful reasons dealt with both the substance of the evidence of the medical practitioners relied on, and the strength and weaknesses of that evidence, in quite sufficient detail to enable Mrs Meadows to appreciate why the application had failed. In essence, the reason was a simple one. It was that the evidence did not enable the judge to be satisfied that the pain and suffering consequences which Mrs Meadows described were the consequences of the physical injury, rather than the consequences of the functional overlay or chronic pain syndrome described in the medical reports. In the circumstances, and having regard to the body of opinion which treated the pain and disability as solely or substantially referable to psychological causes, this conclusion was well open to his Honour.

40 Given the severity of the symptoms of which Mrs Meadows complains, this is, doubtless, a confounding result for her. She is not able to work, and she experiences, at its worst, very severe pain. But, as will be apparent from what I have set out, her application failed because her condition was inexplicable medically, not because there was any error in the legal analysis. On the preponderance of evidence, those symptoms, severe as they are, could not be explained (or sufficiently explained) by the physical injury which she sustained.

42 I agree with the reasons of the Acting Chief Justice, that the appeal should be dismissed. The applicant contended that the trial judge's finding - 'I am not

satisfied that the plaintiff's organic injury does account for all or even the bulk of her current range of symptoms and disabilities' - carried with it a finding that Mrs Meadows was obliged to so satisfy the Court. For the reasons given by the Acting Chief Justice, I agree that this question did not involve the imposition of an additional condition for success. Rather, it was a test that Mrs Meadows did not have to satisfy but if she did, it would have overcome any challenge to her application based on her experiencing pain through psychological factors.

43 I also agree with the reasons of the Acting Chief Justice that the appeal should be dismissed.

[1] Accident Compensation Act 1985 (Vic) s 134AB(38)(c).

[2] The parties to the appeal accepted that these terms were used as explained in Mutual Cleaning and Maintenance Pty Ltd v Stamboulakis [2007] VSCA 46; (2007) 15 VR 649, 651-2 [5]-[7] ('Stamboulakis').

[3] Meadows v Lichmore Pty Ltd [2012] VCC 1290, [42] ('Reasons').

[4] Paragraphs 6-15 are based on the judge's reasons.

[6] Ibid [49]-[52] (emphasis added, citations omitted).

[7] [2008] VSCA 167 ('Jayatilake') (Neave JA and Pagone AJA agreed).

[8] [2007] VSCA 46; (2007) 15 VR 649 ('Stamboulakis').

[9] Jayatilake [2008] VSCA 167 [24].

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

[11] If the judge's conclusion to the contrary was open on the evidence, the appeal must fail : Mobilio v Balliotis [1998] 3 VR 833.

[12] See [16] above.

[13] Stamboulakis [2007] VSCA 46; (2007) 15 VR 649, 653, [9].

[14] Reasons, [43]-[48] (emphasis added).

[15] Hunter v Transport Accident Commission & Anor [2005] VSCA 1; (2005) 43 MVR 130; Franklin v Ubaldi Foods Pty Ltd [2005] VSCA 317; Sun Alliance v Massoud [1989] VicRp 2; [1989] VR 8.