Rohde v Victorian WorkCover Authority [2026] VCC 306

1. Mr Rohde was born and brought up in Victoria. He left school after completing Year 11. He then worked variously as a trades assistant and scaffolder.
2. In November 2021, Mr Rohde began working for the employer as a rigger/scaffolder. In March 2022, he was working for the employer at the Esso gas plant at Longford during a shutdown.
3. In the incident on 7 March 2022, Mr Rohde deposed that at about 6.15pm, he experienced the onset of strong lower back pain after passing a piece of scaffolding to another employee whilst working in an awkward space with existing piping. Mr Rohde said he went to the supervisor's office to report his injury, but no-one was there.
4. Mr Rohde's evidence in this application was that having injured his lower back at work on 7 March 2022, it worsened overnight, and he has been unable to work in any capacity since.
5. Later in March 2022, Mr Rohde completed a Personal Accident and Sickness Form in order to claim income protection payments. In that claim, he asserted that he hurt his back at home on 7 March 2022, and denied the injury was work related.
6. Mr Rohde's income protection benefit claim was accepted, and he received income protection payments for two years.
7. After the income protection payments ceased, Mr Rohde submitted a Worker's Injury Claim Form in relation to injury suffered in the incident. That claim was submitted on or about 23 May 2024, and was accepted by the authorised agent. He continues to be in receipt of weekly payments.
8. Mr Rohde's evidence in this application was that he lied in his income protection payment claim about suffering his injury at home because he was told by Glenn Seddon, his supervisor, not to make a WorkCover claim.
9. During the hearing, Mr Rohde objected to answering questions regarding his income protection claim on the basis that doing so may tend to prove he had committed a crime. I determined there was a reasonable basis for his objection. He was given a certificate pursuant to s128 of the Evidence Act 2008 with respect to that part of his oral evidence. Mr Rohde was warned that if he were to give false evidence, notwithstanding the certificate, he would be liable for criminal prosecution in respect of that false evidence.

Did Mr Rohde suffer an injury to his lower back at home on 7 March 2022, after the work injury?

1. Mr Rohde relied upon two affidavits sworn by him on 6 February 2025 and 9 February 2026, and an affidavit sworn by his fiancée, Linda Shears, on 9 February 2026.
2. Mr Rohde gave evidence, and was cross-examined.
3. The VWA did not seek leave to cross-examine Ms Shears.
4. In his affidavit sworn on 6 February 2025, Mr Rohde deposed that following the incident at work, his lower back pain increased overnight. Early the following morning, he rang his supervisor, Glenn Seddon, and reported his injury. Mr Rohde deposed that the following occurred during that conversation:[1]

"... He suggested that I not make a Work[C]over claim and that I say my injuries happened at home. He said I would have trouble finding work in the industry if I had a history of a WorkCover claim. ... ."

5. Mr Rohde deposed that after speaking to Mr Seddon, he was not sure what to do, and "initially" did not make a WorkCover claim. He said he hoped his back "would come good, and I could keep my employment".[2]
6. As to his claim for income protection payments, Mr Rohde deposed:[3]

"I pause here to add that I eventually went on to income protection although also formally made [a] Work[C]over claim in late May 2024 after getting advice and after my income protection had ceased."

7. During cross-examination, Mr Rohde said he was aware of the worker's compensation scheme at the time of his injury and was also aware that he could seek legal advice if he needed it.
8. Mr Rohde said that Mr Seddon advised him not to make a WorkCover claim, and he accepted that advice, feeling that he had no choice. It was put to him that Mr Seddon did not give him any such advice. Mr Rohde maintained that he did.
9. Mr Rohde sought treatment for his back injury for the first time on 9 March 2022, consulting Alex Wright, physiotherapist. The history of injury recorded by Mr Wright on that day was as follows:[4]

"HOPC: 2/7 ago crawling through pole rack, noticed increase in sharp pain through lower back region, states central with lateral expansion.

1. When asked about the history recorded by Mr Wright, Mr Rohde agreed that the substance of the note was an accurate record of what he told Mr Wright, but the wording was "a little bit wrong".[5] He said he was working in the pipe rack, not a pole rack, when injured.
2. The next attendance upon Mr Wright was on 17 March 2022, at which time it was noted:[6]

"... attended appt with partner. [S]tates remembered moving haybales at home prior to commencement of LBP. [P]artner reports has been limited with pain medication."

3. During cross-examination, Mr Rohde agreed he attended Mr Wright with his partner, and agreed he gave the history recorded in the note.[7] The following exchange than occurred:[8]

Q: "That is you, I suggest, brainstorming with the physiotherapist about the likely cause of your back injury, isn't it?--- > > A: No, I wouldn't say brainstorming, no. > > Q: That's you adding to what you had previously told the physiotherapist about what might have caused your back condition, isn't it?--- > > A: Um, that's the start of what I was told to start telling people so I could get weekly payments because I had no leave. > > Q: You say that's what you were told to say?--- > > A: Yes, the hay bale story. > > Q: You were told to tell the hay bale story?--- > > A: Yes. It was a simple, easy story for Glenn to tell other supervisors at UGL. > > Q: If that's so, why didn't you tell Mr Wright that at the first of the consultations on the 9th?--- > > A: I did. I said I was working on the pipe rack. > > Q: That's right. You've given a history of a work-related injury on the first consultation on the 9th- - - ?--- > > A: Yep. > > Q: - - - which is the day after- - - ?--- > > A: - - - Yes. > > Q: - - - you maintain Mr Seddon told you not to make a WorkCover claim?--- > > A: He said I wasn't entitled because it wasn't reported that night. > > ... > > Q: ... What you didn't do is tell - is get your story straight with Mr Wright at the first consultation, did you?--- > > A: At that point Glen[n] hadn't told me I wasn't entitled to WorkCover."

4. It was put to Mr Rohde, that if his account was true, and Mr Seddon had told him on 8 March 2022 that he should not make a WorkCover claim, then the history given to Mr Wright on 9 March 2022 would have been of an injury at home. Mr Rohde responded as follows:[9]

"No, the hay bale story wasn't exactly told to me the way - that way yet. It was just said that I'm not entitled to WorkCover - I'm not entitled to WorkCover and that he would call me back, and, yeah, basically he went away for a few days and then called me back."

5. Mr Rohde said that on 9 March 2022, he told Mr Wright that his injury happened at work, because that is in fact what happened.
6. Mr Rohde agreed that he first consulted his general practitioner ("GP"), Dr Dak Yor Akol, about his injury on 21 March 2022. He agreed he complained of the onset of back pain two weeks previously.
7. Mr Rohde was asked whether he had given the history recorded in the consultation note of "back pain post injury 2 weeks ago (felt it while at work but worsened after work)"[10] and the following exchange occurred:[11]

A: "Yeah. I couldn't get - I couldn't move the next morning. > > Q: Is it right to say that that worsening happened in connection with you moving hay bales?--- > > A: No, there is no hay bales being moved in March. That's in November you cart hay. The worst thing was me not being able to walk the next morning."

8. Mr Rohde was then asked about his next consultation with Dr Akol on 25 March 2022, during which the income protection paperwork was completed. The following exchange occurred:[12]

Q: "So would it be fair then to say that that's - that you told him it happened at home at that time?--- > > A: I filled the paperwork out, yes, and asked him to stamp it. > > Q: And discussed with him the circumstances of the claim?--- > > A: Um, he was worried I wasn't able to be doing WorkCover ... > > Q: You told him at that time the injury had happened at home, didn't you?--- > > A: He knew that it happened at work. So, yes. > > Q: You told him, I'm suggesting to you, that it had happened at home at that consultation, didn't you?--- > > A: No, I didn't tell him that; no. > > Q: You showed him - at the very least this much is true, isn't it: you showed him the form the form, didn't you?--- > > A: Ah, yes. > > Q: And he looked at it?--- > > A: I'm guessing so, yes."

9. Mr Rohde said that he completed the income protection claim form himself; no one helped him do it. It was his handwriting on the form (save for the doctor's statement and certificate). The copy tendered was unsigned, and Mr Rohde could not remember whether he ultimately signed it, but agreed that it was likely that he did.
10. In that form, Mr Rohde acknowledged that he relevantly provided the following account in support of his claim that he was entitled to income protection payments:[13]

"3 Statement of Claim (to be completed by Claimant)

(i) When did the accident occur or when did you first become aware of your sickness?

(iii) In your own words, please provide a FULL description of how the injury occurred or how you became aware of the sickness:

Was unloading hay bales from a trailor (sic) to a pellet (sic). A certain movement I made left me struggling to walk with severe pain in my lower back.

(iv) If injury, please describe exactly what you were doing at the time of your injury (ie How did the injury happen) and where the injury occurred:

As mentioned, moving a hay bale in the shed at home.

(xi) Please provide names and addresses of any witnesses:

(xiv) Are you making, or are you entitled to make a claim in respect of this injury or sickness for any of the following?

(d) Worker's Compensation (Work Related Injury/Sickness)

1. Mr Rohde accepted that the above information was false and constituted deliberate lies for the purpose of making a fraudulent claim against the private income protection policy. He was required to submit monthly medical certificates, and agreed that each month, he submitted a certificate in furtherance of his fraudulent claim.
2. Mr Rohde agreed that he has not made any attempt to contact the income protection insurer to correct the record, or pay back the money he received. He said he could not afford to as he has not worked for four years.
3. As to his intentions, Mr Rohde was asked and answered as follows:[14]

Q: "It would be fair to say, would it not, that you have no present intention to repay the money under the policy? > > A: Not at this time right now."

4. In about mid 2022, Mr Rohde said he sought advice in respect to his WorkCover rights from a solicitor. I note this was shortly after submitting his claim for income protection payments and two years before his WorkCover claim was submitted.
5. Mr Rohde was asked about the following history of injury recorded by Dr Gavin Weekes, pain specialist, in a letter to Dr Akol dated 23 August 2023:[15]

"As you know, he provides a history of lower back pain since March of last year. He was not able to pinpoint as such the onset of his pain other than the fact that he was moving some hay at home. He worked as a scaffolder at that time as well, but he has been off work since March 2022."

6. Inconsistently, Mr Rohde both agreed that is what he told Dr Weekes, and that Dr Weekes must have obtained the history from other paperwork.[16]
7. Mr Rohde denied that the true position is that he cannot say when his lower back pain came on, other than that it had some connection with moving hay.[17]
8. Mr Rohde's fiancée deposed that she overheard the conversation between Mr Rohde and Mr Seddon on 8 March 2022:[18]

"... I recall his boss saying words to the effect of saying if [Mr Rohde] reported his injury through Work[C]over he wouldn't get another job anywhere else. He was told not to report it happening at work and to make up a story it happened at home with the hay."

1. Leading counsel for the VWA submitted that Mr Rohde was not a witness of truth. He admitted repeatedly lying for financial gain, doing so for over two years, and not subsequently correcting the record. Other aspects of his evidence were inherently improbable and internally inconsistent. It was submitted:[19]

"In summary then, Your Honour could not, in our respectful submission, be satisfied that nothing happened at home and, if Your Honour were to accept that submission, then Your Honour could not be satisfied that the work injury is the cause of the entirety of the impairment and the resulting consequences."

2. Senior counsel for Mr Rohde submitted that Mr Rohde's account of the compensable injury, was corroborated by the clinical note of Mr Wright. Further, is was supported by the clinical notes of Dr Akol.
3. I bear in mind that I am determining a gateway application,[20] on very limited evidence.
4. There were a number of unsatisfactory aspects to Mr Rohde's evidence. However, in assessing his evidence, and meaning no disrespect to him, I take into account that he presented as an unsophisticated witness. He did not prevaricate about the various false statements he made in his income protection claim.
5. There was some changeability as to what Mr Rhode claimed to have been told by Mr Seddon, and when. Nonetheless, on the evidence before me, I accept that after speaking to Mr Seddon, Mr Rohde thought he could not or should not make a WorkCover claim for his injury. That understanding, coupled with his fear that he might not be believed about his injury happening at work because he did not report it on the day it occurred, his inability to work due to his injury, his lack of leave, and strained finances, prompted the submission of the false income protection claim.
6. I am sufficiently satisfied for the purpose of this gateway application that Mr Rohde did not suffer a further injury to his lower back at home on 7 March 2022, after the work injury.
7. Importantly, Mr Rohde's account is supported by the history given to Alex Wright on 9 March 2022, that he suffered his injury at work on 7 March 2022.
8. Mr Rohde's account is also corroborated by the unchallenged evidence of his fiancée that he suffered his injury at work and was told by Mr Seddon to claim it happened at home.
9. I do not find that Mr Rohde's account is supported by Dr Akol's clinical records. I find the history of injury recorded by Dr Akol on 21 March 2022 is consistent with a further injury at home on 7 March 2022, as well as a simple worsening of symptoms at home. Further, it is of concern to me that Dr Akol certified in the income protection claim form that the condition was not in any way related to Mr Rohde's work, and that he would not support a worker's compensation claim because the "incident occurred at home".[21] Taken at face value, those statements were in some contrast to the content of Dr Akol's clinical record of 21 March 2022.

1. Having made the above finding, and consistent with the VWA's concession, Mr Rohde has leave to issue proceedings claiming pain and suffering and loss of earning capacity damages due to the compensable lower back injury sustained on 7 March 2022 in the course of his employment with the employer.
2. I will hear the parties on the issue of costs.

[4] Defendant's Amended Court Book ("DCB") 153

[20] Findlay v Transport Accident Commission [2025] VSCA 126 at paragraph [61]