Schweitzer v Victorian WorkCover Authority [2025] VCC 765

1. As will become clear, Mr Schweitzer has suffered injuries in other accidents. The circumstances giving rise to this application are unusual and not disputed. They are described in his first affidavit:[2]

"On 1 December 2021, I was doing paperwork at my desk at FBA's Tottenham office, when plaster fell from the ceiling above me, causing me to fall off my chair and hit my head on the ground ('the December incident').

I was in shock when the December incident occurred. I felt pain in my neck, back and right shoulder. I called an ambulance ... The paramedics suggested that I go to Western Health to get assessed, but I decided not to go to the emergency department. I didn't think I had hurt myself seriously and I did not wish to attend hospital during the Covid-19 lockdown. I thought the pain would subside over time. Unfortunately, it didn't. The pain became progressively worse."

1. Before describing the aftermath of this incident, I will examine the circumstances of his earlier accidents.

1. On 10 April 2014, Mr Schweitzer was crossing a pedestrian crossing in St Kilda when he was struck by a car. He suffered a mild traumatic brain injury, a fracture of the left L3 traverse process and a cut to his scalp. He developed psychological problems.
2. His recovery from these injuries was slow. His low back pain and his psychological issues gradually improved. His level of activity gradually increased, with him starting to attend a gym and doing swimming, Pilates and yoga. Certain activities caused flare-ups of his back pain but he learnt to cope.
3. He was treated for his back pain and psychological issues. Among those treating him was Dr De Graaff at Epworth Rehabilitation. Dr De Graaff appears and re-appears until the December incident.
4. In relation to Mr Schweitzer's serious injury application concerning this accident, he affirmed an affidavit on 16 May 2016. He asserted serious long-term impairment involving an acquired brain injury, injury to his lumbar spine and a severe long-term behavioural disturbance or disorder. The affidavit contains much information about the physical and psychological effects of the April 2014 accident.

1. On 1 May 2020, Mr Schweitzer drove his car into the rear of another car. He suffered pain in his chest, low back, right shoulder and arm. He went to hospital by ambulance. He underwent scans. After a about a week's absence, he returned to work on a limited basis. Although still feeling pain in his neck, back and shoulder and experiencing psychological issues, after about a month, he returned to full-time work.
2. Nicole Bryant is a physiotherapist. She first saw Mr Schweitzer on 4 May 2020. He complained of thoracic pain and his cervical movements were limited in range.
3. A few weeks after this accident, Mr Schweitzer returned to Dr De Graaff on referral from his psychiatrist, Professor Hopwood. He continued to see Dr De Graaff every few months, before ceasing treatment with him in November 2021.
4. Mr Schweitzer also saw Dr Hapani at the Metro Pain Group and underwent regular physiotherapy.
5. In early 2021, he resigned from his employment with NDIA due to his anxiety through the stress of work and neck soreness. In February 2021, he found employment with FBA Care.
6. Mr Schweitzer was employed full time at FBA Care as a compliance manager. During the pandemic restrictions, he often worked from home. For the first six months of this employment, he experienced significant neck pain and headaches. The former disturbed his sleep. He took medicines for pain relief.
7. Early in 2021, Ms Bryant noted a considerable improvement, with pain scores down to 3 out of 10. She also noted Mr Schweitzer tended to overdo exercise, which increased his pain. She pushed hard for him to moderate his forms of training and he was doing so in January and February 2021.
8. On 21 April 2021, Ms Bryant saw Mr Schweitzer. She noted his cervical pain was more on the right and he had a very limited range of cervical movements and this was worsening. Flexion was one eighth of normal, with no extension and left and right rotation was a quarter of normal. He told her the level of his pain was 6 out of 10 but had been 8 out of 10 the previous night. To her, there was "no real activity change" to cause the different pain levels. She sent him back to his general practitioner for an urgent review of his pain medicine.
9. On 29 April 2021, he told his general practitioner his neck pain worsened when exercising. He was prescribed Panadeine Forte with the recommendation of more physiotherapy and less Panadeine Forte.
10. On 2 May 2021, Mr Schweitzer filled out a patient information form for the Metro Pain Clinic. He noted limitations in his jogging, gym work and sleep.
11. Dr Jigna Hapani is a medical practitioner. She is associated with the Metro Pain Group and, judging by her qualifications, is an anaesthetist. On 3 May 2021, she wrote to Ms Bryant. She described the position and character of his neck pain: constant pain in the centre of the lower neck, sometimes sharp and stabbing in character. There was pain in his forehead and temple. His neck movements were limited due to pain. He suffered headaches when his neck pain was severe and they could last for hours. He was taking Panadeine Forte, Endone, Panadol and Nurofen as needed. Pain affected his ability to remain asleep.
12. She felt his history and the results of her examination suggested a facetogenic cause. But she could not eliminate a myofascial component or a ligamentous or disc-related cause. She suggested a medication treatment plan. On 24 May 2021, she referred him to Dr Bates at the Metro Pain Group.
13. On 8 May 2021, he told his general practitioner of back pain while resuming normal work duties.
14. For the first six months of his employment with FBA Care (which started on about 1 February 2021), he experienced "quite bad" neck pain and headache. The neck pain disturbed his sleep. He tried different medicines to manage his pain.
15. Dr Dan Bates is a physician specialising in sports and exercise medicine. He wrote a series of reports including detailed operation reports.
16. On 6 and 15 June 2021, he wrote to Ms Bryant. He had recently assumed Mr Schweitzer's care from Dr Hapani. He spoke of two options, one of which was to locate the source of his pain, which, on clinical grounds, he believed was the C2‑3 and C5-6 facet joints. Despite his belief, he proposed a block of the third occipital nerve and C5-6 medial blocks "to rule these facets in or out as driving his pain". If they were, then the next steps were control blocks and then radiofrequency neurotomy.
17. On 18 June 2021, Dr Bates wrote to the Transport Accident Commission. He said he was treating Mr Schweitzer for neck pain and headache, which he considered was the direct result of the injury suffered in what he calls the "original injury". This is the injury suffered on 1 May 2020. He sought permission to undertake a right-sided third occipital nerve and C5-6 medial branch block. He explained:

"Outcomes will be measured and documented. The procedure will be tracked with a six hour pain chart. If positive, he will proceed to control blocks with a view to radiofrequency neurotomy."

1. On 4 August 2021, the Commission approved this request.
2. Mr Ash Moaveni is an orthopaedic surgeon. On 28 July 2021, he examined Mr Schweitzer at the joint request of his solicitors and the Transport Accident Commission.[3]
3. Mr Moaveni's examination revealed:

"There is tenderness of the left and right cervical paraspinal muscles. Active range-of-motion assessment of the cervical spine revealed a reduction of left rotation and left lateral flexion with pain at the end of range. There was a significant reduction in cervical extension and flexion was less affected but caused central posterior cervical pain."

1. Under the heading "Current symptoms", Mr Moaveni stated:

"Mr Schweitzer reports bilateral cervical pain which is chronic in nature and worsens with sustained postures and upper limb loading. Symptoms are exacerbated when lying down in cervical extension, reaching above shoulder height with either arm or with forceful loads on the upper limb. Stiffness and pain in the cervical spine require regular breaks from sustained postures at work and are eased with heat packs and analgesia.

Sharp pain develops across the posterior cervical region from quick cervical movements (such as head checks when driving) and can also develop from sustained forward neck postures of more than 30 minutes at a desk. Driving longer distances results in neck and shoulder tension.

Mr Schweitzer reports experiencing frontal region headaches since the accident approximately four times per week requiring additional analgesia."

1. Mr Moaveni was uncertain whether Mr Schweitzer could achieve full functional recovery in the foreseeable future, pointing to at least two prognostic red flags and predictors of an unfavourable long-term outcome: failure to respond to conservative management, and involvement in a high-speed motor vehicle accident.
2. Dr Albert Kaplan is a psychiatrist. At the request of Mr Schweitzer's solicitors and the Transport Accident Commission, he interviewed Mr Schweitzer on 31 August 2021.[4] He was undertaking an impairment assessment in relation to the May 2020 accident. Under the heading "Physical injuries", Dr Kaplan wrote:

"Mr Schweitzer stated that he experiences constant neck pain which is occasionally associated with headaches. The pain is aggravated when he sits for a prolonged period of time, when he drives, and when he carries out any strenuous exercise or physical activity. The pain has not improved since the accident."

1. Dr David Freilich is a medical practitioner. Judging from the tenor of his report, his speciality is neurology. At the joint request of Mr Schweitzer's solicitor and the Transport Accident Commission, he examined Mr Schweitzer on 28 September 2021.[5]
2. The significance of Dr Freilich's report for this proceeding appears on page 2 under the sub-heading "Neck pain":

"He has mid-posterior neck pain that radiates to the left shoulder. The pain is constant, it varies in severity. It is worse when he jolts, does push ups, sit ups. He takes Panadeine [F]orte twice a week and Nurofen twice daily. He has been having physiotherapy for his neck. He is waiting for approval from TAC for a nerve block, which was suggested by a pain specialist."

1. On 23 September 2021, his desk collapsed and injured his right knee. Despite soreness, he was not incapacitated for work. The effect of this injury was limited in relation to his domestic and sporting activities. But by March 2023, he was taking Panadeine Forte and Endone for his pain.
2. Dr Stephen De Graaff is a rehabilitation specialist and the Director of Pain Services at the Epworth Hospital in Richmond. He first saw Mr Schweitzer as part of treating his severe low back pain arising out of the 2014 accident. From the reports admitted into evidence, he saw him on about 27 May 2020, 24 November 2021 and on 7 September 2022. There may have been other occasions between 2020 and 2022 but they were not the subject of tendered reports.
3. In May 2020, about four weeks after the 1 May motor vehicle accident, Dr De Graaff noted the cervical spine injury and was optimistic about his improvement.
4. In October and November 2021, Mr Schweitzer said his neck pain and headaches improved "a lot". The level of his neck pain was "minor" and he had occasional headaches. He took Panadol or ibuprofen when there was a flare up.
5. Returning to Dr De Graaff. On 24 November 2021, Dr De Graaff noted Dr Bates proposed injecting the cervical region in mid-December 2021 to treat the headache and neck pain. Understandably, his letter of the same date was examined closely by both parties. Both referred to the following paragraphs:

"From an overall pain picture, he is significantly better in control. His pain is generally moderate in severity with occasional flares, but he is coping with these by utilising either Panadol or ibuprofen.

He is no longer taking gabapentin nor Panadeine Forte."

1. He noted increased exercise activity including F45 training, gym and swimming but a little running flared up his pain. He also noted an improvement in his "sleep profile" and "really his quality of life is in a much better place now than it has been in the past".
2. He concluded:

"All in all, I feel my role with Ollie now can be on the back burner. I have encouraged him to continue to liaise with Dan Bates."

1. Pausing there. First, in re-examination, Mr Schweitzer explained what F45 training entails:[6]

"... So it's basically a high [in]tensity 45 minute workout. You do a lot of jumping, free weights, cardiovascular, push-ups, lunges, things like that. And the aim of it is to basically get a full workout but within 45 - do that in 45 minutes."

1. Second, Dr De Graaff characterised the level of his neck pain as generally moderate. In his oral evidence, Mr Schweitzer descried it as "minor". In light of what he could undertake shortly before the December incident, "minor" may be well be a better descriptor of the level.
2. In cross-examination, Mr Schweitzer said, of the state of his neck at the time of the December incident:[7]

Q: "I'm suggesting to you that you were still having neck pain all the way up to December 2021. What do you say to that?---

A: I am saying that it had improved dramatically by that stage, and that's why the injection didn't go ahead."

1. Shortly afterwards in cross-examination, he said he did not know whether the December incident caused the cancellation of the injections. I will return to this issue later.

1. Following the December incident, Mr Schweitzer experienced pain in his neck, low back and right shoulder. He did not attend hospital because of the lockdown and his perception of the seriousness of his injuries. He did not see his general practitioner until 13 December 2021.
2. He believes he was absent from work for a few days. Having been recently promoted, he continued working for several months. This was despite increasing pain in his neck and low back. The neck pain radiated into his right shoulder. He persevered with the pain and his regime of exercise through attending a gym, running and going to F45. Far from relieving his pain, these measures caused him a "lot of pain".
3. The December incident left him depressed and anxious. It affected his concentration and memory. When his boss at FBA Care returned from overseas in April 2022, he lodged a WorkCover claim, which was accepted. As was another claim regarding the September accident.
4. In about April 2022, his position in FBA Care went from managing director to compliance manager. He was then studying for a diploma in quality management.
5. In about May, Schweitzer stopped working. Initially, he took leave but the lodging of WorkCover claims caused his relationship with his boss at FBA Care to break down and he resigned in about July 2022.
6. In about June 2022, he started physiotherapy treatment with Mr Cuffe. He continuing seeing the general practitioner, Dr Daniel Espinosa, at the Peninsula Medical Clinic and not the South Yarra Clinic. Dr Espinosa referred him again to Dr Bates. He was experiencing a "lot of pain", particularly, in his neck, radiating into his right shoulder and less so in his back and right knee.
7. In about July 2022, Mr Schweitzer started on a short-term contract at the Department of Finance as a case manager. This employment lasted a "couple" of months. He was then employed as a team leader in the Department of Defence. He struggled with the interstate travel through anxiety and the aggravation of his neck pain. He was made redundant about the end of 2022. He described this as a relief.
8. Apart from attending his psychologist and psychiatrist, Mr Schweitzer underwent MRI scans of his cervical spine on 20 August 2022. This was followed by a return to Dr De Graaff in September 2022 for his pain generally, and, in particular the neck.
9. By the end of 2022, Mr Schweitzer was trying medicinal cannabis for pain relief but stopped because of the side effects. His attempts to increase his physical activity in early 2023 failed due to increased pain in his neck, the pins and needles sensation in his right shoulder and knee soreness.
10. There were further MRI scans of his cervical spine on 31 January 2023. On 22 March 2023, and again in on 19 April and 1 June 2022, Dr Bates injected his neck. These injections gave temporary relief from the pain in his neck and right shoulder.
11. From April 2023, he ceased with Mr Cuffe and started with another physiotherapist, Ms Egan. Apart from physiotherapy, she provided education in pain management, avoiding a formal pain management programme.
12. In about May 2023, Mr Schweitzer resumed to employment as a complaints' handling officer. In about August, he joined another entity as a senior practice quality advisor. This is a desk job which allows him sit, stand and move around during the day. Nevertheless, he suffers pain and headaches.
13. During 2023, he was a director of a NDIS management company but resigned after four months due to his then employment by FBA Care.
14. In January 2024, he underwent further MRI scans of his cervical spine because he was experiencing tingling and numbness in his left arm and left leg. Although referred to a neurologist, the cause of these symptoms was not identified. In any event, these symptoms largely disappeared.
15. In late 2024, Dr Bates gave a radiofrequency denervation injection in his neck. It produced relief. He prescribed a Ketamine cream, which Mr Schweitzer applies daily. It gives some relief.
16. As present, from the perspective of physical treatment, he sees another general practitioner, Dr Bensky, and Dr Bates. He also attends an osteopath, Lauren. These practitioners are mainly seen for his neck. He presently takes these medicines for his physical ailments, apart from his asthma:

(a) Palexia, usually three times a week, when his neck pain is particularly bad;

(b) Panadeine Forte or Tramadol, taken about twice a month, when his neck pain is unbearable;

(c) Ketamine cream;

(d) Panadol or Nurofen for his headaches, about once a fortnight;

(e) Temazepam to help his sleep.

1. Admitted into evidence were the clinical notes of the South Yarra Clinic between 9 July 2019 and 21 December 2021. During 2021, Mr Schweitzer attended the clinic on twenty-one occasions. Before the December incident, there are two mentions of the neck. On 8 May 2021, there was a Telehealth consultation where the practitioner noted "O/e movements neck full". On 29 April 2021, a different practitioner noted "neck pain worse since exercising a lot". Panadeine Forte tablets were prescribed.
2. After the December incident, on 13 December 2021, another practitioner noted:

"[O]n the 1st December plaster from wall fell into his neck back of the head and fell of[f] the chair

only tender sCM at[t]achment to the head full range of mov[e]ments

1. There is no mention of Dr Bates' proposed injections.
2. The last attendance before the December incident was on 4 October 2021. It related to his right knee. There is no mention of the neck.

1. Mr Schweitzer's general practitioner referred him back to Dr De Graaff, who saw him on 7 September 2022.[8] He noted the two incidents occurring in September and December 2021. He noted neck and shoulder pain, which varied between 5 and 8 out of 10, and MRI scans had eliminated the possibility of C7 radiculopathy. His sleep was disturbed and various medicines made no difference. The lack of sleep affected his ability to work as a team leader in the Department of Defence but he continued as the work was a distraction from the pain. His main medicines were Panadeine Forte and sertraline. With sitting, he needed to get up and move around. He had about 50 per cent of neck movement in all directions, which was limited by pain. He noted neck spasm, front and rear. Dr De Graaff recommended Mr Schweitzer continue his physiotherapy for his right knee and await the recommendations of Dr Bates. If nothing was recommended, he suggested a pain management programme. He did not recommend any change in medicines.

1. On 22 March 2023, Dr Bates injected the right occipital nerve and C5-6 branch block. This was to seek the source of the neck pain. On 19 April 2023, Dr Bates repeated this process.
2. On 1 June 2023, he performed radiofrequency denervation of the C2-3 and C5‑6 facet joints and a paravertebral injection and a percutaneous interlaminar epidural.
3. On 10 July 2024, Dr Bates saw Mr Schweitzer again. The 2023 radiofrequency neurotomy had given him good control of his pain for about 18 months. He was using Panadeine Forte intermittently. Dr Bates was intending to prescribe clonidine for pain relief.
4. On 6 November 2024, Mr Schweitzer underwent the same process he underwent in June 2023.
5. On 14 March 2025, Dr Bates wrote to Mr Schweitzer's solicitors. He diagnosed right-sided C2-3 and C5-6 facet joint arthropathy, which he also described as a whiplash injury. He considered the right upper trapezius pain came from the C5‑6 facet joint. He foresaw ongoing pain, which would wax and wane and likely progress or worsen.
6. To the question:

"In your opinion, was our client's employment with FBA Care Pty Ltd a significant contributing factor to his neck injury?"

"Based on our clinical records, Mr Schweitzer reported the onset of pain from a motor vehicle accident in 2014 and 2020. If this occurred while working in the employment of FBA care, it is a significant contributing factor."

1. Pausing there. This answer is unhelpful. Mr Schweitzer was not employed by FBA Care in 2014 and 2020. Even assuming the 2021 accident was a significant contributing factor to his neck injury, this opinion does not address the issue of the significance of the aggravation caused by it.
2. Returning to his report, Dr Bates created two tables, each setting out the pain relief gained from the right third occipital nerve and C5-6 medial branch blocks on 22 March 2023 and 14 April 2023. The former showed improved pain levels from 7.5 out of 10 to 5 out of 10 after seven hours. In the latter, there is an improvement from 5 out of 10 to 2 out of 10 after seven hours.
3. As to a question about Mr Schweitzer's current symptoms and treatment for his neck, Dr Bates said:

"As per our recent review, Mr Schweitzer recently reported a gradual worsening of his neck pain. It is located in the same area as previously, and he's currently rating it at about five out of ten. He has had 18 months' worth of significant improved pain following radiofrequency of the third nerve and C5, 6 medial branches which are the nerve supply to the C2-3 and 5-6 facets. His pain has recurred due to regeneration of the nerves, it has been proposed to repeat radiofrequency neurotomy. This is the expected time frame or efficacy of this therapy."

1. Dr Bates noted Mr Schweitzer worked full time between 9.00am and 5.00pm. To do so, he used a sit-to-stand desk, an ergonomic chair, had regular breaks and stretched every fifteen minutes. He gets regular flare ups of pain when driving to different sites or locations. While driving, he does head checks. This flares up his pain, as does walking, driving and interviewing service providers. He uses Palexia, Endone, paracetamol and ibuprofen for pain relief. Palexia and Endone have side effects which he manages at work by attending the first aid room and remaining there until those effects have settled. He also takes time off from work when his pain flares.
2. Dr Bates also noted prolonged sitting caused neck pain. His difficulty bending forward affects his ability to empty his dishwasher, cook and clean. He can no longer rock climb due to the need to look up. He has difficulty playing tennis, hiking and running, and is unable to swim. These limitations will continue for the foreseeable future and the degree of the restrictions will wax and wane.

1. Mr Hazeem Akil is a neurosurgeon. On 6 December 2024, he interviewed Mr Schweitzer at the request of his solicitors.[9]
2. Mr Schweitzer described the December incident to Dr Akil somewhat more expansively than in his first affidavit: the ceiling plaster struck the back of his neck; he struck his head on a concrete edge; he lost consciousness for a very short period; he experienced severe headache and neck pain and paraesthesia. Dr Akil's history implies he attended his general practitioner the next day, which is not the case.
3. Dr Akil briefly mentioned the 2014 and 2020 accidents. Of the latter, he noted Mr Schweitzer "eventually improved significantly".
4. On examination, of the possible motions of the cervical spine, Dr Akil found restriction with extension because he had difficulty looking up. As to the lumbar spine, the range of motion was "near normal". There were no neurological signs.
5. Dr Akil noted essentially normal scans before and after the December incident (2013, August 2022 and January 2023). He noted his treatment was physiotherapy and two injections into the cervical region by Dr Bates.
6. In discussing diagnosis and causation, Dr Akil said:[10]

"He has most likely a refractory myofascial pain affecting his cervical region. From the history that I managed to obtain and analysing the document, it seems that most of his current condition are related to the incident at work on 1 December 2021, which I would consider as the main contributing factor to his current headache and neck pain."

1. His prognosis was guarded. He saw the mainstay of his future treatment as primarily physiotherapy. Surprisingly, he does not mention radiofrequency neurotomy.
2. The main restrictions due to pain were prolonged sitting, standing, or walking for longer than ten to fifteen minutes and any activities involving looking up, like overhead activities.
3. For his supplementary report,[11] Dr Akil was provided with additional material including Dr De Graaff's report dated 24 November 2021, the progress notes of the South Yarra Clinic between 9 July 2019 and 21 December 2021 and Professor Teddy's report dated 25 September 2024. He maintained his original diagnosis and prognosis. As to Professor Teddy's diagnosis, he said:

"Professor Peter Teddy's diagnosis is a soft tissue injury (musculoligamentous) ... to his cervical spine and it is the same as my diagnosis of myofascial pain, but in different wording. I agree with him there are elements of post-traumatic stress disorder. In general, I agree with most of the conclusion that Professor Teddy expressed in his medicolegal report of October 2024."

1. He did not say what part or parts he disagreed with or what elements of PTSD were present. Since Professor Teddy considered the effects of the December 2021 incident were largely resolved, not unnaturally, Mr Schweitzer's solicitors asked him a further question:

"Could you please elaborate regarding our client's updated diagnosis, i.e. do you consider that our client's pain and restrictions will continue into the foreseeable future?"

1. In a further supplementary report,[12] he considered Mr Schweitzer's pain and restrictions were permanent and would continue into the foreseeable future.

1. Professor Peter Teddy is a neurosurgeon. At the request of the defendant's solicitors, he examined Mr Schweitzer on 25 September 2024.[13]
2. Mr Schweitzer described the December incident in terms somewhat similar to the description in his first affidavit.
3. Professor Teddy took a history of the injuries suffered in incidents in 2014, 2020 and 2021 and Mr Schweitzer's current complaints. In relation to the 2020 accident, Mr Schweitzer told him:[14]

"His pains were mainly felt in the neck and lower back and induced by significant activity such as skiing and running. On a day-to-day basis, he improved such that he was 'okay'. ... He was treated with gabapentin and his pain generally settled, although he was scheduled for occipital nerve blocks and medial branch blocks at the C5/6 level for the treatment of continuing neck pain and headaches."

1. Professor Teddy was given many documents including reports of imaging of the cervical spine, medical reports and clinical records. A number of those documents were not tendered in this application.
2. Interestingly, he was not given Dr De Graaff's report dated 24 November 2021. However, he was given Mr Schweitzer's affidavit affirmed on 16 January 2024 which spoke about his condition leading up to the December incident.
3. To Professor Teddy, Mr Schweitzer did not exhibit any particular pain behaviour. There was "virtually" no active extension of the neck, while flexion was about 75 per cent of normal. Tilt and rotation to either side was full. With the lumbar spine, most his pain was broadly across the midline at about L5. It appears his lumbar spinal movements were normal or nearly so. There were no neurological signs.
4. Professor Teddy summarised aspects of several medical reports, both physical and psychological. As to diagnosis, Professor Teddy said:

"I do not believe that Mr Schweitzer is purposefully exaggerating or elaborating his symptoms but his overall history and clinical findings (in relation to the most recent injury at work in December 2021) are more in keeping with soft tissue injury (musculo-ligamentous) to the cervical spine and possibly lumbar spine (with no significant injury to the shoulder as recorded by patient) than any form of bony, facetogenic, or neurological injury. The limitations of movement of the neck are more in keeping with fear avoidance activity."

"I defer to expert opinion in Psychology/Psychiatry with regard to the nature and severity of PTSD and his psychiatric state, but believe this to be the major contributor to his ongoing symptomatology related to the cervical and lumbar spine and right shoulder."

1. He considered the soft tissue injury to the cervical spine had largely resolved. Although Mr Schweitzer experienced neck pain, its cause was both physical and non-organic, with the latter "considerably overlaying and overriding organic components".
2. Professor Teddy thought Mr Schweitzer would require psychological support "but in the absence of definable bony, discogenic, or facetogenic pain, conservative management should be adopted and interventions avoided".
3. Among the medical reports he reviewed were reports from his treating psychiatrist, Dr Michael Hopwood and a psychologist, Ros Lethbridge. None of their reports was tendered. With Dr Hopwood, the first motor vehicle accident caused the PTSD and Major Depression. The succeeding accident exacerbated the symptoms of those disorders.

1. In this application, "serious injury" means "permanent serious impairment or loss of a body function". The word "serious" is explained in two further paragraphs of s325(2). First, relevantly, it is satisfied by reference to the consequences to Mr Schweitzer of any impairment or loss of a body function with respect to pain and suffering or loss of earning capacity when judged by comparison with other cases in the range of possible impairment or loss of body function. Second, an impairment or loss of a body function is not serious unless the pain and suffering consequence or the loss of earning capacity consequence is, when judged by comparison with other cases, in the range of possible impairments or losses of a body function fairly described as being more than significant or marked and being at least very considerable.
2. The adverb "very" qualifies the noun "considerable". The following passage from the joint judgment in Sabo v George Weston Foods[16] is important:

"In considering whether Mr Sabo's impairment is 'at least very considerable' weight must be given to the adverb 'very'. As Callaway JA said in TAC v Dennis:

'Many [impairments] are considerable, in the sense that they are important or substantial, without being very considerable'."

1. An earlier paragraph in the joint judgment dealt with Mr Sabo's return to work:[17]

"The fact that Mr Sabo is able to return to work full-time driving a forklift, does not preclude him from showing that the pain and suffering consequences of his impairment are serious. Such an approach would be a disincentive to workers attempting to return to work on lighter duties and would be inconsistent with s 3(b) of the Act, which provides that one of the Act's objects is to provide 'for the effective occupational rehabilitation of injured workers and their early return to work'. ... ."

1. Under the heading of "The disabling effect of pain", Maxwell P summarised the authorities on this point in Haden Engineering Pty Ltd v McKinnon:[18]

"As to capacity for work, it is necessary to identify whether and to what extent the plaintiff is prevented by the pain from performing the duties of his/her previous employment. The fact the plaintiff has been able to return to full-time employment does not preclude an affirmative finding of serious injury. It is simply one of the matters to be taken into account. What matters in this regard is the extent to which 'an area of work which [the plaintiff] enjoyed has been closed off to [him or her]'."

1. The principle in Petkovski's Case appears in the headnote and is applicable to proceedings under the Act:[19]

"... In an application for leave to bring proceedings under s. 93 of the Transport Accident Act, where the case is one of aggravation of a pre-existing condition, the applicant must establish what injury was caused by the accident. An analysis must be made of the extent of the impairment of a body function before and after the relevant injury, and the additional impairment must involve serious long-term impairment of a body function. ... ."

1. In Spence and Anor v Gomez,[20] the Court, especially Maxwell P, made observations about the application of the principle in Petkovski's Case. However, that principle remains good law.

1. Mr Schweitzer gave oral evidence and was ably cross-examined. Although it is sometimes difficult to assess the demeanour of a witness who has suffered a traumatic injury, this was not the case here. He was an accommodating witness who struck me as honest and reasonably accurate. Plainly, his credibility is important, for the comparison between his before and after conditions depends largely on what he has said, whether in evidence or to others.

1. In opening this application, Mr Schweitzer's counsel described his injury as simply an injury to the cervical spine. She further defined the alleged injury as an extended injury: an aggravation of a pre-existing injury to the cervical spine. Undoubtedly, the 2021 accident caused such an injury to Mr Schweitzer's cervical spine.

1. Judging from the indexes to the court books, Dr De Graaff wrote many reports. In none of those admitted into evidence in this application does he diagnose Mr Schweitzer's injury, whether before or after the December incident. Mr Moaveni diagnosed a muscular ligamentous injury due to the 1 May 2020 accident. Given his speciality, Dr Freilich did not define the injury to Mr Schweitzer's cervical spine due to the 1 May 2020 accident. In June 2021, Dr Bates believed the source of Mr Schweitzer's neck pain came from the C2-3 and C5-6 facet joints. He proposed to test this belief through blocks. He did not in 2021.
2. From the above, I conclude the 1 May 2020 accident caused an injury to Mr Schweitzer's C2-3 and C5-6 facet joints.
3. Putting aside the question of the pre-existing injury, then the nature of the injury suffered in the December incident was, for the most part, described in general terms. Professor Teddy described it as soft tissue or musculoligamentous. Dr Akil said his pain came from the myofascia affecting his cervical region. He also said it was refractory or resistant to treatment. He felt Professor Teddy's diagnosis was the same as his but differently stated.
4. The diagnoses of Professor Teddy and Dr Akil are from medico-legal witnesses. Other the other hand, Dr Bates has been treating Mr Schweitzer for some time including invasive treatment. He is more specific based on his clinical examination, tests and treatment. He diagnosed right-sided C2-3 and C5-6 facet joint arthropathy, which he also described as a whiplash injury. He identified specific areas of the cervical spine although "arthropathy" is itself a general term. I am surprised neither medico-legal specialist adopted Dr Bates' diagnosis. If I needed to choose, I would adopt Dr Bates' diagnosis because it arises out of successful treatment.

1. Neither Dr Akil nor Professor Teddy directly considered the issue of aggravation. They did indirectly. Dr Akil thought most of Mr Schweitzer's current condition was related to the December incident and it was the main contributing factor to his current headache and neck pain. Implicitly, the injury from the December incident aggravated significantly the pre-existing condition of his cervical spine. Dr Akil considered Mr Schweitzer's pain and restrictions were permanent and would continue into the foreseeable future.
2. Professor Teddy considered Mr Schweitzer suffered a soft tissue injury in the December incident, which had largely resolved when he examined him. He recommended conservative treatment and the avoidance of interventions. He did not explain what conservative treatment or interventions involved in Mr Schweitzer's case. Nor did he explain why he thought the injury had largely resolved. Neither did Dr Akil explain why he reached his view of the future of the injury.
3. Accepting Mr Schweitzer's evidence of the effect of the December incident coupled with the effectiveness of radiofrequency neurotomy and the need for repeated applications, then the injury is permanent in the accepted sense.

1. Currently, Mr Schweitzer has constant pain in his neck, mainly in the centre and on the right side. It worsens if he raises his head to look upwards, when reaching up with his arms, particularly the right and if he turns his head in either direction. The level of his pain varies, having good and bad days. On his bad days the pain is severe and he struggles to cope. Overall, he describes his neck pain as "a lot worse" than before the December incident.
2. There is pain in his right shoulder, which apparently comes from the right side of his neck. This is not constant and has improved since he made his first affidavit. Stretching his right arm upwards often triggers pain in that shoulder.
3. Immediately before the December incident, Mr Schweitzer suffered constant pain in his neck. On occasions, the level of that pain worsened. Generally, according to Dr De Graaff, it was of moderate intensity. At one stage of his cross-examination, Mr Schweitzer described his general level of pain as "minor" but, under further cross-examination, he agreed with the moderate description. "Minor" or "moderate" purport to describe points on a scale. Dr De Graaff did not describe the parameters of the scale he used. This is understandable since he was writing to another medical practitioner. Since Mr Schweitzer returned to F45 training, working out in a gymnasium and swimming, the level of his pain did not preclude the return to those activities, especially the vigorous F45 training even though running or jogging was, and still is, limited because of its jolting. He had returned to bouldering and playing social tennis. He had decreased his use of medicines dramatically to Panadol or ibuprofen, describing his use of these medicines as occasional.
4. In the months before the December incident, Mr Schweitzer described the state of his neck to six practitioners. Starting with Ms Bryant in April 2021 and moving through Dr Hapani, Mr Moaveni, Dr Kaplan, Dr Freilich and Dr De Graaff, the common feature is the complaint of constant pain, which worsens through certain activities. However, there is a discernible improvement in the content of the complaints, the results of clinical examinations, when undertaken, and the use of medicines. Although Dr Kaplan was told of no improvement since the May 2020 accident, the apparent improvement during 2021 lends plausibility to what Mr Schweitzer told Dr De Graaff. To an extent, Dr De Graaff's letter is impressionistic. He had seen Mr Schweitzer over several years, mainly, in relation to his back. But his impression is of a significant change in his condition, which Mr Schweitzer maintains occurred in October and November 2021.
5. Also interestingly, he injured his right knee in 2021. In 2023, Dr Bates injected it and he was taking pain-relieving medicines. The condition of the right knee was then still interfering with certain activities. I must ignore the effect of that injury.
6. Mr Schweitzer still experiences headaches about once a fortnight. He distinguished between headaches and migraines. He suffers the latter occasionally. At the time of his first affidavit, they occurred more frequently than immediately before the December incident. Dr De Graaff did not even mention headaches in his 21 November report. In late July, Mr Moaveni quoted Mr Schweitzer as reporting front region headaches about four times a week since the 2020 accident. Accepting Mr Schweitzer's assessment of the frequency of his headaches immediately before the December incident and now, the evidence does show the degree of difference. In terms of Petkovski's Case, it is a modest factor.
7. Edward Schweitzer is Oliver's only sibling.[21] They maintain regular contact. He witnessed his brother make what seemed to be a full recovery from the effects of his 2014 motor vehicle accident. Edward felt his brother's main complaint from the 2020 motor vehicle accident was an injury to his eye. He did not perceive limitations in his neck or hear him complain of pain there.
8. On the other hand, since the December incident, his brother has complained of ongoing neck pain, severe at times, and trouble sleeping. He cannot do strenuous gym work. Edward has two young children. Of his brother, he noticed "that he pulls back when he feels neck pain whilst playing. I have seen Oliver tell my son that he needs to take a break." This child is aged three-and-a-half.
9. Sadly, Edward has not seen improvement in his brother's condition - "It does not seem that he is getting better like he did after the 2020 accident".
10. To an extent, Edward's evidence corroborates that of his brother about the effects of the December incident.

1. The escalation of his pain raises the issue of his treatment. Before the December incident, it was proposed he would undergo injections with Dr Bates to identify the source of his neck pain. These injections had received TAC approval. They were scheduled to occur in mid-December 2021. Looking back, Mr Schweitzer was asked about whether he would have gone ahead with those tests given his recent improvement. He gave two answers to that question. First, in his first affidavit he expressed uncertainty about the need.[22] In his oral evidence, he said the tests did not proceed because of his improvement. But a little later in the cross-examination, he said he "honestly" did not know whether the December incident caused the cancellation of these tests even though he did not cancel them and no one advised him to cancel them. There is no mention of the proposed tests in the clinical notes of his visit to his general practitioner on 13 December 2021. In the reports of Dr Bates there is no mention of the cancellation of the procedure, which is understandable given the nature of those reports.
2. One thing is clear, the tests did not proceed in December 2021. Since I accept Mr Schweitzer's evidence of his significant improvement of his neck condition in October and November 2021, it is more likely the procedure was cancelled due to that improvement. As evidenced by the 2023 tests, this is a serious procedure involving some form of anaesthetic. Given Mr Schweitzer's nervousness over anaesthetics, it is more likely the improvement in his neck symptoms led to the cancellation and not the occurrence of the December incident.
3. The treatment is unpleasant, both physically and psychologically. Radiofrequency neurotomy is not an easy procedure. So much can be gleaned from the operation reports. But there is also Mr Schweitzer's description of the process:[23]

A: So it's a general anaesthetic ... you basically lie with your head down in hole thing and then they give you the anaesthetic and then do the radiofrequency in the back of the neck and there's a slight bit of discomfort generally after the procedure which is normal and then it settles down.

Q: How do you feel about having those procedures?---

A: It's not the most pleasant procedure and there's obviously always risks with general anaesthetic. I'm quite nervous about having those procedures because of that and there's also risks as well, minor risks, but, they could either exacerbate - that they do something to the neck or whatnot and so it's scary, to be honest, to have them but I have them because they work, because they seem to be the main thing that works."

1. In quoting his reaction to the treatment, I am not including this as an impermissible psychological consequence. It is merely a broader description of the procedure.
2. On the other hand, the aggravating effects of the December incident has led to the undertaking of radiofrequency neurotomy as the treatment. For Mr Schweitzer, this treatment is effective but it needs repetition about every eighteen months. It lessens his neck and shoulder pain and headaches. He has had this treatment twice. There is no reason to suppose he will discontinue the treatment in the foreseeable future since it brings him relief.
3. His experience of this necessary treatment, to be repeated regularly and indefinitely, means his experience of the aggravated level of pain and the treatment means this issue is a very significant factor. If the procedure involved only an injection every eighteen or so months, then it would not be a serious consequence. But it is not such a simple procedure. It is complicated and Mr Schweitzer is afraid of its potential consequences. This is a daunting prospect for a forty-year-old person. In my opinion, the repeated need for this procedure is a serious consequence of the aggravating effect of the 2021 accident.
4. Despite the radiofrequency neurotomy, Mr Schweitzer still uses pain-relieving medicines: Palexia, about three times weekly; Panadeine Forte, about twice monthly; Ketamine cream daily; Panadol and Nurofen for his headaches, usually about once a fortnight, and Temazepam, when he has difficulty sleeping. The cause of this difficulty is not only neck pain but also anxiety. These represent a significant increase in the medicines he used shortly prior to the December incident.
5. To Professor Teddy, Mr Schweitzer had virtually no active extension, while flexion was 75 per cent of the normal range and tilt and rotation in either direction was normal. Dr Akil was less precise, noting a restriction on extension through a difficulty looking up. Plainly, despite treatment, Mr Schweitzer is restricted in two major movements of the cervical spine: flexion and extension. Immediately before the December incident, there was greater movement as evidenced by his return to F45 and bouldering in particular.

1. Mr Schweitzer sees exercise as important for his mental health. He exercised before the December incident and continues to do so. There is a difference between the levels of exercise. Immediately before the December incident where he did F45 training, attended a gymnasium, swam and ran. This last was accompanied with some pain. After the December incident, he has not returned to F45 training, mainly due to his neck pain. He concedes some of the squatting exercises of F45 training would be painful for his right knee but his neck pain is the main problem for F45 training.
2. He does not run outdoors because of the jolting. He tried a self-defence sport called Krav Maga but stopped because it caused too much neck pain. Mr Schweitzer does yoga and Pilates a couple of times a week. He and his instructors are careful about what he does.
3. Immediately before the December incident, he played tennis with his uncle about once a week. He cannot now recall when he last played, even when it involved hitting a ball against a wall. Again, he acknowledged the restrictions due to his knee but placed the neck as the main source of restriction.
4. Immediately before the December incident, he did F45, attended a gymnasium, swimming and running. I have quoted a passage of his oral evidence describing F45. After the December incident, he has not restarted F45. He attends a gymnasium about three to four times a week. His exercises are restricted because of the increased pain. He avoids lifting heavier weights above head height. He avoids sit ups and push ups. If he pushes himself too hard he suffers from a pins and needles sensation in his right shoulder. He spends 15 minutes on an exercise bike and about 10 minutes on the treadmill, where he jogs or walks, depending on the state of his neck. Then he spends 20 or 30 minutes of weights or strength exercises. He does not run outdoors because of the jolting. He tried a self-defence sport called Krav Maga but stopped because it caused too much neck pain.
5. After the 2021 incident, Mr Schweitzer has not returned to bouldering, which is a form of indoor rock climbing. He has not returned because it would cause too much pain in his neck.
6. Mr Schweitzer does yoga and Pilates a couple of times a week. His exercises are modified by his instructors, taking his pain into account.
7. Immediately before the December incident, he played tennis with his uncle about once a week. He cannot now recall when he last played, even when it involved hitting a ball against a wall. He acknowledges the restrictions due to his knee but places the neck as the main source of restriction.
8. Since December 2021, he travelled with his fiancée for weekends in Victoria, interstate to Adelaide and overseas to Bali. He avoids aggravating his neck pain. Although he enjoys watching tennis at the Australian Open, he found an increase in his neck pain through moving his neck from side to side watching the ball.
9. Plainly, treating practitioners seek to improve the condition of their patients. Notwithstanding the beneficial effects of radiofrequency neurotomy, his regime of exercise is limited almost entirely by the physical effects of the aggravated neck injury.

1. Although engaged to be married, Mr Schweitzer lives alone in a three-bedroom unit, which is larger than the small apartment he lived in at the time of his first affidavit. With the larger unit, cleaning is a problem due to his neck pain. He hires a cleaner, who cleans once a fortnight. The cleaner performs the more difficult cleaning, such as mopping, vacuuming and cleaning the bathroom. He performs the other cleaning tasks whenever his neck is not too bad. Mopping, vacuuming and cleaning the bathroom caused him bad neck pain because those tasks involved reaching and repetitive arm movements.
2. Before the December incident, he undertook the household chores. The small size of the unit meant there was not much to do but if he suffered too much pain he just did not do any chores.
3. The change in his accommodation makes it difficult to assess his ability to clean has altered since the December incident.

1. At the time of the first affidavit, Mr Schweitzer was in a relationship but lived alone. He still lives alone but is now engaged. He and his fiancée now engage in sexual relations which are "impacted" by his neck pain. Owing, no doubt, to delicacy, his description of this private matter is vague. Understandably, this vagueness is common in these kinds of applications. But sexual relations are important to most domestic relationships including marriages and is a significant factor in assessing consequences.

1. Owing to his neck pain, he takes a long time to go to sleep. He struggles to find a comfortable position. Sometimes he wakes because of the pain. However, his anxiety over the possibility of a falling ceiling affects his sleep. So much so, he sometimes sleeps outside in a hammock. This is a peculiar psychological consequence of the December incident. This psychological effect on his sleeping I will ignore.
2. On 21 April 2021, Ms Bryant noted a pain level of 8 out of 10 and he was not sleeping. In a patient information form, completed on 2 May 2021, Mr Schweitzer said of sleep: can do but is severely limited, and he often did not sleep well. On about 3 May 2021, Dr Hapani noted "Failing to sleep is not a problem but maintaining sleep is affected by the pain". To Mr Moaveni on 28 July 2021, he said he sleeps for three or four hours at a time. He wakes for a couple of hours each night. He gets out of bed to move his neck and applies a hot pack. On 31 August 2021, he told Dr Kaplan of suffering from broken sleep, mainly due to his neck pain. Sleep is not mentioned in Dr Freilich's report dated 1 October 2021. Shortly before the 2021 accident, on 24 November 2021, from what Mr Schweitzer said, Dr De Graaff thought Mr Schweitzer's sleep profile had improved. I suppose Dr De Graaff was comparing Mr Schweitzer's sleeping with that found on about 27 May 2020 where he recorded: "His sleep is disturbed with waking twice during the night, but he can get back to sleep." In his oral evidence, Mr Schweitzer said he was sleeping well, which is possibly the same thing as Dr De Graaff's overall assessment.
3. From the available evidence, I could not find Mr Schweitzer's sleep has altered much due to the December incident.

1. Before the 2021 accident, Mr Moaveni noted his general driving tolerance was 40 minutes before requiring a break. Now he can drive up to about 45 minutes but beyond that his neck and shoulder pain worsens. His neck also stiffens, making it hard for him to do head checks.
2. There seems little change.

1. In about 1 February 2021, Mr Schweitzer started as a full-time compliance manager with FBA Care. At some stage after the December incident he became a director in that business and a compliance manager. He was still in that position when he and the business parted company, apparently because of the tension caused by Mr Schweitzer's lodgement of WorkCover claims.
2. In about August 2023, Mr Schweitzer started working for the NDIA Quality and Safe Guard Commission as a senior practice quality advisor. It is a full-time position. He works at a desk and can sit, stand and move around during the day. About half of the time, he works from home. He persists despite the pain he experiences. He is determined not to allow his injuries to prevent him from building a career.
3. Again, I cannot discern any appreciable difference in the state of his employment, before and after the December incident. It is full-time, sedentary and coped with due to his determination.
4. In my experience of this particular jurisdiction, the applications made to this Court are those truly requiring a judicial determination. In those cases, as in this case, there is much to be said on both sides. The complication in this case is the principle in Petkovski's Case. Mr Schweitzer faces a stern test. Nevertheless, I am satisfied he has suffered a serious injury as a result of the December incident. As can be seen from these reasons, I am particularly influenced by his experience of his pain despite the radiofrequency neurotomy and other treatments.
5. For completeness, although the claim under paragraph (c) of the definition of "serious injury" was not abandoned, there was very little evidence before me to support it. I will reject that part of the claim.

1. I will grant leave to Mr Schweitzer to issue proceedings for the recovery of damages for pain and suffering. I will hear the parties on the form of my order and costs.

[1] [1994] VicRp 32; [1994] 1 VR 436

[2] Affidavit affirmed 16 January 2024 at paragraphs [36] and [39]

[10] Report dated 6 December 2024 at p 3

[11] Dated 17 March 2024 (scil. 2025)

[12] Dated 18 March 2024 (scil. 2025)

[16] [2009] VSCA 242 at paragraph [73] (footnotes omitted)

[18] [2010] VSCA 69; (2010) 31 VR 1 at paragraph [15] (footnotes omitted)

[20] [2006] VSCA 48

[21] Affidavit affirmed on 18 March 2025

[22] Affidavit affirmed on 16 January 2024 at paragraph [30]