Steele v VWA [2025] VCC 1449

1. At the hearing, the plaintiff adopted her affidavits[5] and was cross-examined. The parties filed court books and made submissions. I have considered all of the evidence and the submissions of counsel.
2. The plaintiff is 32 years old. She finished secondary school and went on to complete various diplomas and certificates in hospitality, including a Certificate IV in Hospitality Patisserie. She commenced a Bachelor of Education but did not complete it. She then worked in hospitality and retail as a catering assistant, as a waitress, as a customer service representative and doing food preparation.[6]
3. She commenced working for Thrifty Car Rental ("Thrifty") as a rental operations agent on around 6 January 2020. She was employed in a full-time capacity, working 76-hour fortnights which included working every second weekend. She performed various duties such as concierge, customer service and sales, and minor cleaning. During the COVID-19 pandemic, in March 2020, her duties expanded to include cleaning the inside and outside of vehicles.[7]
4. In terms of pre-existing health issues, since childhood she has had difficulties with anxiety, hyperactivity, disorganization and poor impulse control. As a teenager she had mental health issues,[8] and she has had poor sleep for a long time. Before starting work for Thrifty, for many years she had experienced anxiety, panic, depression and migraines for which she took medication on and off. At times, her mental health issues were exacerbated by life events including the death of her grandmother and infertility issues. When she started working for Thrifty, she started taking anti-depressant medication again.
5. In mid-2021 she fell out of a truck that she was cleaning and injured her left shoulder.[9] She might have also jarred her back but could not recall exactly. Her evidence concerning the consequences of her left shoulder injury is dealt with below. From August 2021, she began to experience lower back and right leg and foot pain while cleaning vehicles. This pain increased over time.[10]
6. She says that her ongoing experience of back pain resulted in increased anxiety, panic attacks and nausea whilst working for her employer. She was experiencing suicidal thoughts and considered self-harm.[11]
7. She ceased work in November 2021 and on about 23 November 2021, she lodged a Worker's Injury Claim form with her employer. This claim was accepted on about 24 December 2021 in respect of a back strain with right-sided sciatica and an aggravation of a major depressive disorder secondary to the physical injury which was related to employment. She resigned from her employer on about 1 April 2022.[12]
8. On about 16 November 2023, she lodged a claim for impairment benefits with the employer in respect of a back, left shoulder and psychological injury suffered over time. This claim for impairment benefits was accepted.[13] The plaintiff received weekly benefit until about 10 August 2024. The payments were terminated on the basis that she had a whole person impairment of 20% or less.[14]
9. The plaintiff says that in relation to the pain and suffering consequences of the 2021 injury, the lower back pain is constant but varies in intensity. Sitting or standing for too long makes it worse, and she changes position regularly. This restriction prevents her from engaging in her hobby of arts and crafts. She is able to perform most household tasks but that it takes longer to do so. She avoids long drives due to the pain in her lower back and down her right leg. She says that her lower back pain makes it more difficult to fall asleep and causes her to wake on average six times per night.[15] She feels tired during the day due to poor sleep. Her biggest mental health problem is her depression, which makes her feel useless.
10. Since her injury, she reports experiencing increased suicidal thoughts, has considered taking an overdose and has self-harmed by cutting her leg.[16] She gets panic attacks three or more times per week, often when she leaves home, and so she rarely goes out. She continues to see her psychiatrist every few months and her psychologist monthly. In late August 2025 she started a gym and swimming program which has been funded by WorkCover.
11. Ms Steele takes the following prescription medication daily:[17] Lithium: 900mg per day (450mg in the morning and 450mg at night); Dexamphetamine: 40mg per day (15mg in the morning, 15mg at midday and 10mg in the afternoon); Celebrex (100mg as required); and Lexapro (20mg per day).[18]
12. She remains off work and receives Centrelink's Jobseeker payment.[19] Due to her depression and anxiety, she says she is unable to return to employment involving customer service.[20]
13. In cross-examination, Ms Steele agreed with a number of matters put to her, including: that she had a long history of anxiety, depression, difficulties with organization and concentration as well as panic attacks prior to working at Thrifty; that she took anti-depressants regularly while at school; that she finished a course at William Angliss but did not work there; that she continued to suffer grief at the death of her grandmother in 2014 and concerns for her mother's mental health; that she had a breakdown while attempting studying for a Bachelor of Education at Victoria University in about 2015 due to the stress of the course; that she went back on antidepressants at that time and saw a psychologist in late 2017; that in the past her panic has been triggered by being in crowds; that she frequently suffered episodes of mania, during which she did not take her medication, slept poorly, undertook risky behaviours including self-harming, being sexually promiscuous and interacting negatively with family and friends; and that she had issues with certain food textures. She agreed that her behaviour during a manic mood swing left her feeling ashamed and depressed and needing to repair relationships, which was also stressful.
14. She agreed that she worked casually part-time at BP doing night shift for 3 years and that work stress in relation to problems with her boss was part of the reason for leaving that job.
15. She said that her job at Thrifty was her first permanent full-time position. When she began working there in January 2020 she was taking medication and receiving treatment for depression, anxiety, bipolar disorder and ADHD. She agreed that even before the COVID-19 pandemic her psychological symptoms impacted on her ability to perform her duties. She agreed that her symptoms worsened during the pandemic, before her work duties changed. She was having fertility issues at the time. In addition, from April 2021 (before her back injury), when a new colleague started work with her at Thrifty, she had issues with an allegedly unsupportive or bullying manager who allegedly picked on her and favoured that work colleague. She agreed that prior to her back injury, those workplace issues were the subject of a team meeting with these colleagues and her area manager at Thrifty at which she became very distressed. She felt that her mental health deteriorated due to this workplace bullying and that she reported this deterioration to her general practitioner, along with fertility issues.
16. She agreed that she told her psychologist, Dr Cristine Huarte-Claughton,[21] that the bullying by her manager continued until she ceased work, but insisted that the situation improved once her colleague left. She denied that she would not have continued working at Thrifty anyway because of the bullying.[22]
17. She agreed that she may not have reported back pain to her doctor in August and October 2021 because it was not so bad. She said that she was put on light duties at some point. She said that the back pain got worse over a few weeks before she stopped work on 21 November 2021.
18. She agreed that she told Dr Triggs she planned to overdose straight after leaving work,[23] but denied that the real reason for ceasing work was the impact of the workplace bullying on her. She insisted that her back pain affected her mental health. However, she agreed that since she stopped work her back pain has lessened and is slowly improving. She agreed that she last had physiotherapy treatment for the back in January 2023, and that it helped her. She said she continues to do some back exercises at home. She agreed that she has never sought further specialist referral from her doctor, nor any treatment through a pain management program, but insisted that her back pain remains a problem which prevents her from returning to work. She said that she was able to manage working with her mental health symptoms of bipolar disorder and ADHD prior to her back injury.
19. She denied exaggerating her back symptoms when seeing medico-legal experts. She admitted that she sometimes walks with a limp and denied putting the limp on to influence those experts. She insisted that she was accurate in telling Dr Horsely that her back pain ranged between 7-8 out of 10, increasing with activity to 9 out of 10.[24]
20. She agreed that she continues to suffer from unrelated chronic left shoulder pain, which affects her sleep, housework and home activities and requires her to take 3-4 Celebrex tablets per week and would have prevented her from performing her work activities at Thrifty.
21. She insisted that her poor mental state in 2021-22 was due to "work" and not her low self-esteem, death of her dog and her grandmother, and fighting with her boyfriend after she had an affair with her manager at Thrifty.
22. Finally, she insisted that it is her back condition which prevents her from sitting or standing too long, together with her poor mental health, which are currently preventing her from performing roles in administration or customer service.

1. Dr Allan Hill wrote various letters between January 2022 and July 2025.[25] In 27 January 2022,[26] he observed that the plaintiff had depression as a result of her lower back injury. Whilst the back injury has improved with physiotherapy, she continued taking anti-depressant medication. On 9 March 2022,[27] he reiterated his opinion that the plaintiff was depressed and also that she had developed anxiety and a loss of confidence from the back injury and lack of employment. He noted that Citalopram was ineffective and prescribed her Effexor. In assessing her capacity for future employment, Dr Hill identified the following options as suitable: customer service officer, administration officer, receptionist, data entry clerk, and console operator.
2. On 17 February 2023,[28] he stated that the plaintiff's back strain had largely resolved and would not deteriorate further. However, she still had significant psychological problems, including anxiety and depression, for which she was having counselling and taking anti-depressants. On 5 February 2025,[29] Dr Hill maintained his observation that the plaintiff's back injury had largely resolved but that her depression required ongoing treatment.
3. On 10 February 2025,[30] Dr Hill stated that the plaintiff's lumbar spine was slowly improving but still affected her daily activities and she was unable to stand for long periods. She required Celebrex and Paracetamol for relief, alongside physiotherapy and analgesia. Whilst her pain levels have improved, they have not yet resolved completely.
4. Finally, on 13 July 2025,[31] Dr Hill confirmed that the plaintiff's acute back problem had improved with treatment, despite still experiencing some discomfort. The back injury continued to affect her daily activities, including engaging in physical activity.

1. Mr Muhammad Sheikh reported on 19 May 2023[32] that the plaintiff presented to Keep In Motion Physiotherapy on 14 January 2022 for right shoulder and low back pain with radiculopathy in the lower limb on the right side. After a few sessions, the plaintiff reported that the pain had improved. At her last visit on 23 January 2023, she reported significant improvement with on/off pain in her lower back.

1. In a letter to Dr Hill dated 13 December 2017,[33] Dr Hanife Guducu noted having assessed the plaintiff as suffering from adjustment disorder with depressed mood.

1. In a letter to Dr Hill dated 8 July 2022,[34] Ms Cristina Huarte-Claughton, the plaintiff's treating psychologist, noted that the plaintiff presented with extremely severe symptoms of anxiety, depression and stress, low confidence/self-esteem, loss and grief of grandmother's death and her dog's death. Ms Huarte-Claughton diagnosed her with adult combined ADHD.
2. In her report dated 11 March 2023,[35] Ms Huarte-Claughton opined that the plaintiff's back injury caused an exacerbation of her pre-existing adult ADHD, which is often comorbid with depressive disorder, mood and sensory dysregulation, and with impairment of executive function.[36] She considered that the plaintiff had no work capacity but with treatment could be capable of future employment starting with light duties on a part-time basis.
3. On 18 December 2024,[37] Ms Huarte-Claughton confirmed the diagnosis of ADHD and noted a psychiatric diagnosis of bipolar affective disorder. In a further report dated 25 July 2025,[38] she noted diagnoses of PTSD, depression, anxiety, stress, pre-existing adult ADHD and bipolar affective disorder. She opined that the workplace back injury caused an exacerbation of her pre-existing ADHD and bipolar disorder and that the plaintiff had no capacity to return to work on pre-injury duties.

1. In his report dated 15 December 2021,[39] Dr Rasankali Rathnyake diagnosed the plaintiff with a recurrence or exacerbation of a pre-existing major depressive disorder with anxious distress. Her symptoms at the time, including reduced motivation and energy, hypersomnia, anxiety and suicidal thoughts, were persistent and mild-to moderate in severity. Dr Rathnyake opined that her incapacity for work was caused by the lower back pain sustained during repetitive work duties, together with dissatisfaction with her change in role and her perception of the employer being unsupportive. Dr Rathnyake concluded that the plaintiff might be capable of returning to work in about three months starting on light duties part-time, provided her dosage of Zoloft was increased and she received psychiatric treatment.

1. On 9 February 2024,[40] Dr Wendy Triggs diagnosed the plaintiff with an adjustment disorder with anxiety features and probable bipolar mood disorder. She opined that the plaintiff's significant psychiatric symptomatology was exacerbated after a workplace injury and rendered her incapable of working, but that once the symptoms were under control, her capacity to return to work would increase.

Dr Yoganada Ballekere wrote to Dr Hill on 29 January 2024,[41] noting that the plaintiff presented to him with a history consistent with bipolar II disorder and comorbid ADHD combined type. In a medical report dated 16 September 2024,[42] Dr Ballekere confirmed these diagnoses. He opined that her ADHD had stabilised, and that her bipolar effective disorder was preventing her from engaging in any work. On 30 June 2025,[43] Dr Ballekere confirmed that the plaintiff's psychological condition is considered long term and that she has no work capacity. On 11 August 2025,[44] Dr Ballekere indicated that as a result of her work-related injury the plaintiff suffered an exacerbation of a pre-existing bipolar affective disorder.

Associate Professor Bruce Love, orthopaedic surgeon

1. Associate Professor Bruce Love reported on 11 June 2025[45] that the plaintiff suffered from an extremely subtle compromise of the right L5/S1 nerve root and that she had probably suffered a lumbar disc injury, caused by her work duties. He concluded that the lower back injury combined with her psychological condition made her permanently incapacitated for any suitable employment but also recommended a further MRI scan to assist "in reaching a more reliable diagnosis".[46]

1. Dr Robyn Horsley reported on 17 July 2025 that the plaintiff sustained a lumbar spine injury of gradual onset due to the repetitive nature of her work duties.[47] She presented with ongoing mechanical back pain and referred pain down the right leg, along with an "aggravation of pre-existing mental health issues related to alleged bullying after her injury'.[48] She was assessed as suffering from severe depression with severe anxiety and mild suicidal ideation. Dr Horsely also diagnosed a likely annular fissure or disc disruption at the L5/S1 level. Dr Horsely considered that the lumbar spine symptoms were likely to persist and that the plaintiff has no capacity to return to pre-injury duties. Dr Horsley stressed that an up-to-date MRI would be of value to determine how to improve the plaintiff's functional tolerances.[49]

1. Dr Remy Glowinski reported on 6 May 2025[50] that prior to injury, the plaintiff was likely suffering from a bipolar mood disorder, attention deficit disorder and potentially heightened psychological vulnerability. He considered that her work related injury and its aftermath resulted in "an exacerbation of a pre-existing bipolar mood disorder type two on a background of psychological vulnerability and possible unrelated attention deficit disorder".[51] He considered that the plaintiff was permanently incapacitated from returning to any suitable employment.[52]

1. Dr Francis Ghan reported on 4 January 2022[53] that the plaintiff complained of acute back pain and right leg pain which she attributed to cleaning cars over the preceding two or three weeks.[54] She told him that the pain in her back was getting better but that she experienced some numbness in her right little toe. On assessment, Dr Ghan observed that the plaintiff "displayed a degree of functional overlay. She was not willing to move her spine much in any direction. Lumbar spine flexion was 30 degrees, extension 10 degrees".[55] He found that the CT of the lumbar spine performed on 16 December 2021 showed a normal study with "no evidence of disc protrusion or prolapse".[56] Dr Ghan opined that the plaintiff could return to employment and conduct pre-injury duties and hours but that her increased weight made her prone to "obesity related back ache".[57]
2. On 28 July 2025,[58] Dr Ghan reported that, when examined, the plaintiff "demonstrated no evidence of sciatica and no evidence of discogenic mechanical instability".[59] Dr Ghan concluded that there "is no structural damage to the lumbar spine from any work injury",[60] that the prognosis for her lumbar spine is "good",[61] that no allied health treatment is necessary,[62] and that the proposed course of management is a reduction of BMI.[63]

1. In his report dated 10 March 2022,[64] Dr David Barton recorded a history of pain and numbness in the plaintiff's right leg as well as severe back pain of which she attributed to car detailing and cleaning duties.[65] She told him that she had complained to her employer about the lifting and bending associated with the cleaning work.[66] Dr Barton accepted that car cleaning and detailing may have initially contributed to her "mild mechanical lower back problem" but considered that the appropriate treatment was "minimum of medical interference, reassurance and an encouragement to stay physically active and exercise".[67] He considered that her problem had been "over medicalised" resulting in the "persistence of her reported physical symptoms."[68] Dr Barton concluded that the plaintiff has capacity to return to work on a gradual basis.[69]

1. Dr Richard Prytula reported on 12 March 2024[70] that the plaintiff presented with an adjustment disorder with mixed anxious and depressed mood as a secondary consequence of physical injury.[71] He opined that she has no current work capacity and that her "prognosis will depend on her level of pain and restriction".[72] In relation to an Independent Impairment Assessment, Dr Prytula reported the following:[73]

"In my opinion, the Total Whole Person Impairment is in Class Il at 10%. There is a component of previous mental health difficulties which I consider is equivalent to 2% of the impairment and not related. The remaining 8% is a secondary consequence of physical injury, pain and restriction. Therefore, the Whole Person Impairment is zero."

1. Associate Professor Abdul Khalid provided a report dated 30 May 2025.[74] He considered the reports of Dr Ballekere and Dr Hill and opined that the plaintiff's presenting symptoms are pre-existing and non-compensable.[75] In respect of the connection between the physical injury and the plaintiff's psychiatric condition, Associate Professor Khalid concluded that there is no current material relation.[76] With regard to prognosis, he reported that both bipolar disorder and ADHD are usually chronic conditions but may be treatable with appropriate medications.[77]
2. In a further report dated 30 July 2025,[78] Associate Professor Khalid found that the plaintiff developed a mild adjustment disorder with mixed anxiety and depressed mood in relation to her claimed physical injury.[79] He considered that this adjustment disorder is currently in remission and that her current presentation is primarily due to pre-existing and unrelated conditions.[80]
3. In a supplementary report dated 8 September 2025,[81] Associate Professor Khalid indicated that the plaintiff is fit and qualified to undertake all but one of the positions identified in IPAR's Vocational Planning report, namely:[82] rental operations agent; customer service officer; administration officer; receptionist; data entry clerk; catering assistant; food and beverage service worker; console operator; and waitress/ front of house staff.

1. In relation to the physical injury to the lumbar spine, I am satisfied that the plaintiff suffered a back strain at work after August 2021 which caused pain and some sciatic symptoms, and that she suffered a deterioration in her mental state leading up to her ceasing work in November 2021.
2. However, I note: the normal radiological findings; the absence of further treatment after initial physiotherapy; the absence of referrals to specialists; the plaintiff's history to doctors that her back pain has improved to the point where it is mild, intermittent but ongoing; and the fact that she does not take medication for back pain. I note the reports of Dr Ghan and Dr Barton are to the effect that she is physically fit for her normal work duties. I also note the evidence to the effect that it is unrelated, chronic left shoulder pain, not back pain, which affects the plaintiff's sleep, housework and home activities and requires her to take three to four Celebrex tablets per week. I consider that Dr Horsley and Associate Professor Love failed to disentangle the organic from the psychiatric aspects of her presentation when considering her work capacity, and I am not satisfied on the material before me, particularly in the light of the reports of Dr Ghan and Dr Barton and the plaintiff's concession that her back pain is resolving,[83] that the plaintiff is permanently incapacitated for all work due to the work-related impairment of the lumbar spine. Nor am I satisfied, on the evidence, that the pain and suffering consequences of her back injury are more than considerable when compared with other cases in the range of impairments.
3. For these reasons, the application under sub-paragraph (a) of the definition of serious injury fails.

1. It is clear on the evidence that the plaintiff has suffered from ADHD and bipolar mood disorder for most of her life, and that before her employment with Thrifty she suffered exacerbations of her mood disorder, as well as auditory hallucinations and suicidality, due to life events and stressors, including the death of her grandmother, infertility issues and workplace stress. In the three years she worked night shift with BP, as noted above, she had problems with her boss, became stressed, and consulted her general practitioner. She was taking medication to manage her conditions. During the exacerbations of her mood disorder, when manic she would behave impulsively, antisocially, and self-destructively. One such exacerbation occurred in April 2021, just a few months before her workplace injury, which resulted in the need for psychiatric treatment and medication.
2. When she commenced work with Thrifty, she was taking medication for her bipolar mood disorder and ADHD. Her position with Thrifty was her first full-time, permanent position. In this position, she also had considerable difficulties at work, which are outlined above at paragraph 20. She gave a history to Dr Hill[84] that the bullying at Thrifty continued until she ceased work and told Dr Glowinski that she thinks of the bullying every day.[85]
3. I note that Dr Glowinski and Dr Ballekere opined that the plaintiff suffered an exacerbation of her pre-existing bipolar mood disorder. However, Dr Ballekere did not link the diagnosis to the plaintiff's work. Dr Glowinski's opinion is unsatisfactory because he traced the exacerbation of her mental state to bullying and her physical injury but did not disentangle the psychological consequence of her lumbar spine injury from the psychological consequences of the alleged bullying solely on the psychological consequences of her lumbar spine injury. I note, however, that he considered that she was permanently unfit from a psychiatric perspective for any work.
4. I note that the plaintiff's evidence was that her back pain began in August 2020. However, she did not complain of back pain to her doctor until October that year. She stopped work a month later, with significant psychiatric symptoms. The time line suggests that her worsening psychological state occurred too quickly to be a reaction to a back injury alone, and is more likely to be the result of a combination of factors, including work-related bullying and non-related issues including fertility problems. In any event, even if her back injury was a cause of the aggravation of her bipolar mood disorder, given the longstanding nature of the disorder, and the intermittent deterioration in her mental state which occurred from time to time, including during her employment at Thrifty prior to the back injury, I am unable to be satisfied on the evidence that, leaving aside the bullying and other non-related work factors, the consequences of this aggravation satisfies the narrative test for serious injury.
5. In any event, I consider that, on the evidence, the more appropriate diagnosis is one of a chronic, mild adjustment disorder with mixed anxious and depressed mood, in response to her back pain, as suggested by Dr Triggs, Dr Prytula and Associate Professor Khalid. I note that only Dr Triggs and Dr Prytula stated that this condition was work-related and secondary to the back injury. I note that in early 2024, Dr Triggs and Dr Prytula considered that the plaintiff had no work capacity, due to her depressed mental state. Dr Triggs considered that once her psychological symptoms were under control, the plaintiff could return to work. Dr Prytula opined that her future work capacity depended on her pain and restrictions. On the other hand, by May this year, Associate Professor Khalid considered that the plaintiff's adjustment disorder is currently in remission, and that from a psychiatric perspective, the plaintiff is fit for all but one of the sedentary positions proposed by the defendant.[86]
6. I consider that to the extent that the plaintiff conceded that her back pain has improved and is only mild and intermittent, and that she has been recently assessed as psychiatrically fit for sedentary positions identified in the vocational report, she has not discharged the onus she bears to establish a permanent and total incapacity for work resulting from the psychological consequences of her work-related back injury. In addition, and for the same reasons, I am not satisfied that the pain and suffering consequences of the work-related psychiatric injury are more than considerable when compared with other cases in the range of impairments.
7. For these reasons, the application under sub-paragraph (c) of the definition of serious injury fails.

1. The application is dismissed.
2. I reserve the question of costs.

[1] Plaintiff Court Book ("PCB") 77, 124.

[2] Medico-Legal Report of Associate Professor Bruce Love dated 11 June 2025, 118.

[3] Dr Huarte-Claughton at PCB 80; Dr Glowinski at PCB 113; Dr Rathnayake at PCB 142.

[4] Dr Prytula at Defendant Court Book ("DCB") 45 and A/P Khalid at DCB 85-86.

[5] The affidavits were sworn on 9 October 2024 and 1 September 2025.

[9] Her left shoulder injury is not part of this application.

[86] Apart from the position of teacher, for which she is not qualified.