ACCIDENT COMPENSATION - Appeal - Serious injury - Pain and suffering consequences of compensable injury - Need to consider complete spectrum of impairments and losses - Significance of return to alternative duties - Need to consider totality of evidence.

Sections 134AB, 134AD, Accident Compensation Act 1985 (Vic).

1 On 9 January 2006, Mr Maro Stijepic, the appellant, was employed as a causal labourer by One Force Group Pty Ltd, the first respondent. On that day, he was required to attend at the premises of Purple Pig (Australia) Pty Ltd to carry out labouring duties. In the course of performing those labouring duties, he was required to assist in unloading a 120 kilogram roll of rubber. While lifting and carrying one end of the roll, a person who was working with the appellant[1] dropped the other end of the roll. As a result, the appellant took the full weight of the roll and suffered injury to his low back.

2 By an originating motion filed in the County Court, the appellant sought leave, pursuant to s 135AB(16)(b) of the Accident Compensation Act 1985 ('the Act'), to bring proceedings at common law against the first respondent.[2] He relied upon paragraph (a) of the definition of 'serious injury' in s 134AB(37) - namely 'permanent serious impairment or loss of a body function', being the low back.

3 The application was heard by a County Court judge on 11 March 2009. At the hearing of the application, the appellant confined his application to one for leave to claim pain and suffering damages only. We assume that he so confined his claim because of an apprehended inability to satisfy sub-paragraph (ii) of s 134AB(38)(b).[3]

4 On the hearing of the application, the appellant relied upon affidavits sworn by himself and his mother, and upon medical reports of treating and examining doctors. The respondents relied principally upon medical reports and images downloaded from the appellant's 'Facebook' site. The appellant, who was cross-examined, was the only witness heard orally.

5 Counsel agreed that no issue of credibility arose on the hearing of the application, or arises in this Court.

6 The appellant had some history of nervous problems antedating the occurrence of the compensable injury. It was not suggested, however, either on the hearing of the application or in this Court, that there were psychological or psychiatric consequence of the compensable injury -vide s134AB (38) (h) of the Act.

7 On 24 March 2009, the judge dismissed the appellant's application.

8 The appellant now appeals to this Court. The sole ground of appeal is expressed as follows:

The trial judge was wrong in determining on the evidence that the plaintiff had not sustained a 'serious injury' within the meaning of sub-paragraph (a) of s 134AB(37) of the Act.

9 This appeal is governed by s 134AD of the Act. The relevant principles for determining whether an injury is a serious injury or not are set out in s 134AB of the Act and the various authorities that have considered that section.[4] The principles are well known and do not need to be restated here. So far as the approach to be taken in this Court is concerned, as was said by Kellam JA[5] in Doolan v Rayners Sawmills Pty Ltd & Anor:[6]

The correct approach to appeals governed by s 134AD of the Act was set out by Ashley JA in Church v Echuca Regional Health. In that case Ashley JA accepted that the effect of Dwyer v Calco Timbers Pty Ltd is that whenever there is a challenge to a finding of serious injury, or of no serious injury, it is unnecessary for the appellant to demonstrate error. Rather, it is for this Court to decide the issue of serious injury for itself, in reliance upon 'the evidence and other material before the judge who heard the application' and upon any other evidence which the Court may receive.[7] (footnotes omitted).

10 The appellant is a man now aged 28, having been born on 30 April 1981. He completed his secondary education at St Kevin's College, Toorak, following which he enrolled for approximately two months at Swinburne University. He then performed casual work for approximately one year before enrolling at the Victoria University of Technology in 2003 in Computer Mediated Arts. He graduated from that course at the end of 2006.

11 While the appellant was a university student, he obtained casual employment with the first respondent, a labour hire company. On 9 January 2006, he sustained the injury which is the subject of this proceeding. Prior to suffering this injury, the only medical history of note disclosed in the evidence was an anxiety condition which required prescriptions of Arapax and Lexapro from time to time, and an asthmatic condition requiring the use of a Ventolin inhaler.

12 Upon suffering injury, the appellant stopped work and reported the accident to a manager. He was told to take it easy and to see if he could complete the work that was required to be performed that day, and he was given some Nurofen to take. He rested for a while and then went back to work - albeit with increasing difficulty.

13 The next day, the appellant attended at the Williamstown Hospital. He was told to rest and to consult his general practitioner.

14 The appellant first consulted his general practitioner, Dr Aufgang, on 12 January 2006. Dr Aufgang found that the appellant was tender over his erector spinae on the left, and he referred the appellant to a chiropractor for initial treatment and mobilisation.

15 The chiropractor's records show that the appellant attended on three occasions in January and February 2006, the first attendance being on 23 January.

16 On review on 17 January, the doctor recorded that the appellant was 'improved'.

17 On 7 February, the doctor noted that the appellant had had chiropractic treatment and was 'very happy with the result'.

18 On 16 February, the appellant re-attended Dr Aufgang with a history of having aggravated his back the previous day. He was given certificates and advised not to work, but to rest. Re-attending on 18 March, the appellant told Dr Aufgang that he had returned to study and no longer required certificates.

19 It seems that the appellant did not return to Dr Aufgang thereafter until 18 September 2006. The doctor's report[8] records that on this occasion the appellant gave a history of suffering from pains intermittently since the original injury radiating from his left back into his left hip, buttock and thigh. But the entry in the doctor's practice notes reads somewhat differently:

Since Jan has been getting Back Pains & Tingling down Leg - has been happening since original injury

Constant Pains

Can't do anything that involves back as support

20 Dr Aufgang referred the appellant for a CT scan and MRI. The report of the CT scan performed on 20 September 2006 concluded:

Left lateral L3/4 and right lateral L4/5 disc protrusion and osteophyte formation impinges on the left L3 and right L4 nerves outside the foraminae.

The MRI scan was performed on 4 October 2006. The MRI report concluded:

Left L2/3 extra-foraminal disc protrusion that may contact the exiting left L2 nerve. There is an eccentric disc bulge on the left side at L3/4 without impingement of the exiting L3 nerve. There is a right L4/5 disc protrusion/uncovertebral joint hypertrophy that does contact the exiting right L4 nerve but does not clearly cause impingement.

21 On 9 October 2006, Dr Aufgang referred the appellant to a neurologist, Dr Matkovic, who saw the appellant on 8 December 2006, and recorded the appellant's history of pain in the following terms:

Lower back pain persists and is almost constant. Also it feels stiff. He has had treatment from a physiotherapist weekly in the last four weeks. In the past, he had treatment from a chiropractor. He pointed to the left lumbar area as the site of pain. It does not radiate to the leg. Sometimes he has what he termed 'light numbness' all over the thigh to the knee, but not below. The numbness may last for a few minutes and appears with prolonged sitting. The lower back pain is brought on by prolonged sitting or standing. He is better with walking or lying in bed.

22 Dr Matkovic concluded that the appellant's lumbar pain was due to 'soft tissue factors', and that there were no abnormalities on examination which might indicate nerve root compression or myelopathy. He recommended that the appellant continue with physiotherapy and avoid activity that aggravated his symptoms.

23 On or about 12 October 2006 Dr Aufgang recommended that the appellant undertake physiotherapy in order to strengthen his back muscles. The appellant complied with this recommendation. He continued with physiotherapy throughout 2007 and 2008, and, indeed, up to the time when his application was heard. At times, he had this treatment twice a week. He gave evidence that at the time of the hearing in the County Court he was having physiotherapy approximately once a week

24 In addition to physiotherapy, the appellant began to have hydrotherapy in about March 2007. In about July that year he began Pilates exercises. When his application was heard, he was persisting with the latter.

25 The appellant consulted Dr Aufgang with respect to his low back problem in January, March, July and October 2007. He reported some improvement in symptoms at times. In October 2007, the doctor noted: 'Still getting pains in back ... is doing Pilates'.

26 In cross-examination, the appellant agreed that he had not consulted Dr Aufgang about his low back after October 2007. He agreed also that, apart from a short-lived exacerbation of his back pain after a motor vehicle accident in February 2009, he had not been prescribed medication for his low back problem since 2006.[9] He said 'I chose not to' - by which he no doubt meant that he decided not to ask for prescription medication.

27 On the other hand, the appellant gave evidence that he had taken, and continued to take, Nurofen and Panadol as required.

28 On 8 May 2007, the appellant was examined by Dr David Elder, a consultant in the specialty of occupational medicine who was retained on behalf of the respondents. Dr Elder concluded that the appellant continued, at that time, to suffer from mechanical back pain due to an aggravation of multilevel degenerative disc disease. He also concluded that there was no clinical evidence of radiculopathy.

29 On 7 November 2007, the appellant was examined by Mr Stephen Doig, an orthopaedic surgeon engaged by the appellant's solicitors. Mr Doig concluded that the diagnosis was one of disc injury at L2/3 and L3/4. Mr Doig opined that the appellant would suffer long-term consequences from his injury - being recurrent episodes of low back pain. Further, Mr Doig expressed the opinion that the appellant 'will not be able to do a lot of heavy lifting, pushing, pulling or carrying'. He also opined that a firm lumbar-sacral corset and/or a pain management program might help, allowing the appellant to return to more activity. Concerning this last-mentioned opinion, we interpolate, there was no evidence that the appellant had embarked upon any such treatment prior to his application being heard in the County Court.

30 On re-examination on 11 December 2008, Mr Doig made similar findings - although he found that the appellant's straight leg raising was more restricted, particularly on the left side, and he found left calf wasting of 0.5 centimetres. On that occasion, Mr Doig expressed opinions as to diagnosis and prognosis which were consistent with his opinions expressed on the first occasion he examined the appellant. He opined also that it was possible either that the compensable injury had caused the disc degenerative changes or that the injury had aggravated underlying degenerative disc disease. Either way, he concluded that the injury had produced an impairment lasting into the foreseeable future.

31 On 13 March 2008, the appellant was examined by Mr Michael Dooley, an orthopaedic surgeon engaged on behalf of the respondents. Mr Dooley expressed his opinion in the following terms:

Mr Stijepic suffers from degenerative disc disease of the lumbar spine. Although he is of a relatively young age, this naturally occurring condition is probably developing at a faster rate and over a wider level for him than in other people of equivalent age. He describes an episode at work in January of 2006 where I believe he has aggravated this underlying degenerative condition and rendered it symptomatic. Overall, the initial severity of his pain has improved with time. He does note ongoing intermittent low back pain. He notes difficulty with impact activity. Clinically there is no evidence of neurological deficit affecting the lower limbs. Radiologically, there is no evidence of disc prolapse or of nerve root entrapment. I believe that the appropriate treatment for Mr Stijepic is a low impact exercise and fitness program. Stretching exercises and regular walking would be helpful to him. I do not believe that he requires further radiological investigation and there is no indication for operative intervention.

Mr Dooley also expressed the opinion that he did not expect the appellant's current condition to deteriorate with time.

32 At the end of 2006, the appellant completed the university studies in which he was then enrolled. In May that year, whilst still studying, he had taken on some clerical work at his parents' business - 'Williamstown Rubber Stamps'. In February 2007 he began to do more work in the business - five hours per day. He experienced difficulties because of restriction of movement and back pain. It may be accepted that this employment was of a protected nature.

33 The appellant continued to work in his parents' business until November 2008. Then he obtained a part-time job with the Australian Institute of Professional Photography, working four days per week doing light administrative duties.

34 In February this year, the appellant enrolled at the Australian Catholic University, studying for a graduate Diploma of Education. This is a one year full-time course. Following its conclusion, the appellant intends to seek a position in the teaching profession.

35 We have adverted to the appellant's post injury employment not because he sought leave to bring a proceeding to recover damages for loss of earning capacity, but because on his account the work which he has done is an indication of the limits on his physical abilities, and so casts indirect light on the extent of his pain and suffering.[10]

36 In his first affidavit, sworn 18 December 2007, the appellant deposed as follows:

My back is painful all the time and on occasions it can be quite severe. If I do too much it is particularly painful in the afternoon. Walking is restricted and I can walk about a kilometre without too much trouble. I can't do any heavy lifting and couldn't lift more than 5-10 kilograms. Driving is restricted to about half and (sic an) hour without too much difficulty. I cannot sit for any prolonged period of time, probably 30 minutes and then have to get up and stretch and move around or my back will become very painful. My sleep is affected and I wake at night or particularly in the mornings because of back pain and don't feel refreshed and have difficulty because of the back pain and stiffness. My social activities are now restricted and I don't want to go out a lot and can't do very much because of the back problems that I have. Prior to my injuries I was part of a band and played a guitar. I cannot carry the guitar because it is too heavy ... .

37 In his second affidavit, sworn 25 February 2009, the appellant described the consequences of his low back injury in the following terms:

I continue to be restricted in all of my activities. I can't lift more than 5-10 kilograms and walking for any prolonged periods of time is difficult. I could probably walk for a kilometre without too much trouble, but then I start to get more back pain. I am always stiff in the morning and by the afternoon my back can be quite painful. I have to rest a lot and often spend considerable periods just lying at home because of my back pain. My sleep is still affected and on occasions I don't sleep well because of the pain and can be awake for prolonged periods at night or have difficulties getting to sleep. I continue to have pins and needles in my left leg on a daily basis and it can become quite painful if I have done too much during the day.

38 It is next necessary to refer to some of the cross-examination of the appellant. First, asked about inhibitions in playing his guitar, the appellant said that he could not stand and play the guitar for a long time. When asked to be more specific, he referred to an hour, an hour and a half and two hours.

39 Second, asked about sporting activities, the appellant readily conceded an ability to run and to play social cricket and soccer and to kick a football with a friend.

40 Third, cross-examination revealed - mainly by reference to the appellant's Facebook site - that he has had, since the accident, a not inconsequential social life; and that he has travelled overseas on extended holidays without any great apparent difficulty. Perhaps some of the written entries on the site were, as the judge suggested, 'a bit of hype'. Even so, the various photographs of the appellant in the company of friends suggested that this was a young man well-able to enjoy himself.

41 It is possible to obtain leave to commence a proceeding for pain and suffering damages by establishing that the loss of earning capacity consequences for a particular applicant satisfy the very considerable test in s 134AB(38)(c) and the 40 per cent requirement of s 134AB(38)(e).[11] But no attempt was made to do this in the County Court or before us on this appeal. Thus the case had to be considered by the judge below, and we must now determine it, by reference to whether or not the appellant has established that the pain and suffering consequences of his injury, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than significant or marked - and as being at least very considerable. As has often been remarked, this involves a value judgment, in which matters of fact and degree, and of impression, are operative.

42 The judge below undertook his analysis by reference to the circumstances of two of the cases looked at by the Full Court in Humphries v Poljak.[12] That was, we apprehend, his approach to deciding whether the pain and suffering consequences were '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 at least as being very considerable'. Because it is unnecessary for the appellant to demonstrate error below in order to prosecute this appeal, strictly we need say nothing about his Honour's approach. But we respectfully doubt its utility. In addition to the two cases to which his Honour adverted there are in our experience many others where very similar fact situations have produced a different outcome. The emphasis in s 134AB (37)(c) and (d) is upon seeing where the facts of a particular case sit in the broad spectrum of cases, remembering that this includes cases which do not end up in litigation - because, it may be supposed, the consequences are glaringly apparent one way or the other. The spectrum is not established simply by fastening upon a case or two in which the applicant has failed.

43 The circumstances of this case , in our opinion, put it on the borderline. The appellant is a young man with low back pathology which has at least been aggravated by the compensable injury. He faces, in the foreseeable future, a continuation of painful symptoms and of consequential inhibitions upon his enjoyment of life. When judging the pain and suffering consequences for the appellant by comparison with other cases, we consider that it is relevant to look at the likely period for which those consequences will be experienced. All things being equal, impairment consequences which a man (or woman) will have to put up with for 40 years might well be judged more serious than the same consequences which a man (or woman) may have to put up with for a much shorter period of time.[13]

44 We do not doubt that the evidence to which we have referred discloses pain and suffering consequences which are both marked and significant. But we are not persuaded that those consequences can be fairly described as being more than significant or marked or as being at least very considerable.[14] It is to be remembered that in reaching a conclusion whether a worker has established that he (or she) suffered serious injury 'the significance of what has been lost, which bears upon the seriousness of consequences, may be informed, to an extent, by what is retained.'[15] We consider it a fair summary of the position that while the appellant has suffered from (and will likely continue to suffer from) inhibitions on his ability to engage in unrestricted physical activity, by and large his ability to engage in the activities that are important to him (and will be important to him in the future) is not affected to any great degree. In particular, it does not appear to us that the appellant's enjoyment of life (comprising his social life, his ability to travel and his ability to engage in guitar playing and social sports) has been affected in a way which could be described as more than marked or more than significant - and certainly not 'at least very considerable'.

45 There were competing submissions concerning the appellant's employability. Appellant's counsel submitted that a preferred employment - in graphic design and computer design work - was now denied his client. This, it was said, bore upon loss of employment of life. For the respondents, counsel submitted that the medical evidence did not support the contention advanced for the appellant. Counsel further submitted that the appellant was only incapacitated for labouring work, which he never intended to do. Finally, counsel for the respondents relied upon the following observation of Chernov JA in Sumbul v Melbourne All Toya Wreckers Pty Ltd:[16]

If one accepts, as her Honour did, that the appellant is physically able to return to alternative employment, then, unless there was some other evidence that showed that he experienced significant pain or that he otherwise significantly suffered physically from the injury, it would ordinarily be difficult to conclude that the pain and suffering consequences of it are 'at least very considerable.'

46 In our opinion, the appellant did not establish, on the totality of the evidence, that he was precluded from a career in graphic design and computer design work. Amongst other things, he never put his asserted incapacity to the test. But if our conclusion was unsound, we consider in any event that he failed to establish that the loss of that field of employment was a serious consequence for him.

47 So far as the respondents' final submission is concerned, it is plain that Sumbul is not authority for the proposition that a return to alternative work is somehow determinative against a worker on the issue of pain and suffering consequences. The most that can be said, and all we take Chernov JA to have been saying, is that if a worker successfully returns to alternative duties it will tend, in the absence of other relevant evidence, against a conclusion that the pain and suffering consequences of the compensable injury are serious. But, as always, the evidence as a whole must be considered. In this case, the appellant's resumption of educational and employment activities, and his employment prospects, have played but a small part in our conclusion that the pain and suffering consequences of his compensable injury do not satisfy the statutory test.

48 Finally, so far as the appellant's pain is concerned, the burden of the evidence is that while he continues to suffer from episodes of pain, and will continue to do so, he does not suffer a continuous substantial level of pain. It is, we consider, confirmatory of this that the appellant's pain appears to be controlled by moderate strength, non-prescription, medication.

49 For the reasons we have given, the appeal should be dismissed.

[1] The appellant could not recall the man's name; but nothing turns on it.

[2] We assume that the Victorian WorkCover Authority was joined as a second defendant to that application (and thus became the second respondent in this appeal) in purported compliance with s 134AB(18) of the Act which requires a copy of an application under s 134AB(16) to be served on it and each person against whom the appellant claims to have a cause of action.

[3] See s 134AB(17).

[4] For example, Barwon Spinners Pty Ltd v Podolak [2005] VSCA 33; (2005) 14 VR 622; Victoria v Rattray [2006] VSCA 145; Dwyer v Calco Timbers Pty Ltd [2008] HCA 13; (2008) 234 CLR 124; Church v Echuca Regional Health [2008] VSCA 153; Jayatilake v Toyota Motor Corporation Australia Limited [2008] VSCA 167; Doolan v Rayners Sawmills Pty Ltd & Anor [2008] VSCA 219; Sejranovic v Berkeley Challenge Pty Ltd [2009] VSCA 108; Sabanovic v Atco Controls Pty Ltd [2009] VSCA 143 and Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170.

[5] With whom Neave JA and Cavanough AJA agreed.

[6] [2008] VSCA 219, [9].

[7] In the appeal before us, neither party sought to adduce further evidence.

[9] In 2009, the medication was prescribed by a Dr Radic.

[10] In which we include the partly-overlapping loss of enjoyment of life.

[11] See generally Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170, [60]-[64].

[12] [1992] VicRp 58; [1992] 2 VR 129.

[13] When we put this proposition to counsel for the respondents, he readily and properly agreed with it.

[14] Cf s 134AB(38)(c).

[15] Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 [27].

[16] [2006] VSCA 292 [24].