Court of Appeal (Vic)|2009-09-18|Before: Mandie JA and Beach AJA

Storer v Warambat Pty Ltd [2009] VSCA 210 (18 September 2009)

1 On 1 June 2001, Mr Damian Storer, the appellant, was employed as a truss fabricator by Warambat Pty Ltd, the respondent. On that day, the appellant suffered injury to his upper back when he stepped off an uneven surface while carrying what he has variously referred to as 'a heavy roof truss',[1] 'trusses'[2] or 'hips'.[3] Whatever the appellant was actually carrying, when he stepped off the surface he describes as 'unlevel', he heard a 'cracking noise' in his 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 respondent. 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'. The body function is described in the parties' joint summary of proceedings, issues and facts as 'the thoracic spine'. However, in the judgment below it is described as the 'thoracic spine, specifically a soft tissue injury aggravation to pre-existing spinal osteochondritis (Scheuermann's disease)'.[4]

3 The application was heard by a County Court judge on 7 and 8 August 2008. On the hearing of the application, the appellant relied upon affidavits sworn by himself and upon medical reports of treating and examining doctors. The respondent relied principally upon medical reports and documents related to return to work plans and possible alternative employments. The appellant, who was cross-examined, was the only witness heard orally. During the course of his cross-examination, surveillance video taken of the appellant on 20 and 21 November 2002 and 31 January 2007 was played and tendered.

4 On 12 September 2008, the County Court judge dismissed the appellant's application.

5 The appellant now appeals to this Court. While there were originally four grounds of appeal, the appeal is now confined to ground 4.[5] Ground 4 is expressed in the following terms:

The Court of Appeal should decide for itself that the plaintiff suffered a serious injury within the meaning of s 134AB in terms of:

(a) the pain and suffering consequences of the injury;

(b) the loss of earning capacity consequences.

6 This ground of appeal was no doubt drawn with s 134AD of the Act in mind, as this is an appeal governed by that section.

7 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.[6] 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[7] in Doolan v Rayners Sawmills Pty Ltd & Anor:[8]

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.[9]

8 The appellant is a man now aged 35, having been born on 28 May 1974. He left school at age 18, having completed Year 10 at Benalla Secondary School. He then worked as an apprentice tiler for 3½ years with H & S Tiles of Benalla, before moving to Melbourne and working as a tiler. He then commenced working in the security industry, working as a hotel bouncer for approximately four years, before returning to work in Benalla at ADI for a short period. He then moved back to Melbourne and worked as a security guard for A & D Maximum.

9 In 1997, the appellant was involved in a motor vehicle accident as a result of which he was sued and made bankrupt. He lost his security guard licence and was unemployed for approximately two years. He also commenced taking antidepressant medication at that time.

10 The appellant's taxation returns for the years ended 30 June 1999 to 2001 disclose that in the 1999 and 2000 financial years, the bulk of the appellant's income was received from Centrelink, with small amounts received for fruit picking.[10] That is, in the 2½ years before he sustained injury, the appellant was largely unemployed.

11 The appellant commenced employment as a truss fabricator with the respondent at its Mansfield store in March 2001. His work involved the lifting and manual handling of building materials. The appellant worked for the respondent until suffering the injury the subject of this appeal on 1 June 2001.

12 The injury occurred on a Friday. The appellant rested over the weekend and first consulted his general practitioner, Dr Thompson, on 5 June 2001. At that consultation, Dr Thompson observed the appellant to have 'a lot of pain and spasm and ... difficulty moving'. An x-ray of the appellant's thoracic spine showed no acute bony trauma. However, the x-ray disclosed that the appellant suffered from Scheuermann's disease. Dr Thompson took a history that the appellant's Scheuermann's disease had never been symptomatic, and was a 'surprise' to the appellant. Dr Thompson diagnosed an injury to the soft tissue around T10 on a background of Scheuermann's disease.

13 On 25 June 2001, Dr Thompson recorded that the appellant was 'a lot better', and so he was told that he could return to work. In fact, the appellant never returned to work. On 30 June 2001, he went to a chiropractor and at or about that time, he suffered a further episode of pain when bending to put on shoes.

14 Dr Thompson referred the appellant to an orthopaedic surgeon, Mr Falkenberg. Mr Falkenberg saw the appellant on 23 July 2001. Mr Falkenberg made a diagnosis of 'soft tissue injury through an area of old Scheuermann's disease'. Mr Falkenberg was pessimistic regarding the appellant's prognosis for returning to work of the kind he was performing when he was injured. Mr Falkenberg said 'so overwhelming has been his reaction to this injury, that it did not indicate much prognosis for recovery and return to this type of work[11] in the future'. Mr Falkenberg recommended lighter physical work for the appellant. As to the appellant's capacity for returning to pre-injury duties, Mr Falkenberg said that the appellant was so uncomfortable that it was hard to contemplate him returning to even light duties.

15 As at 28 August 2001, Dr Thompson (when she wrote her first report) expressed the opinion that the appellant's prognosis was probably poor in terms of heavy work involving lifting or twisting. Three months later,[12] Dr Thompson described the prognosis as poor and said that this 'may go on for 18 months; should only do light work once pain settles'.

16 Dr Thompson saw the appellant on 15 January 2002 and concluded that he was 'much the same as previously'. At that time, the appellant could not sit for long, could not sleep, believed he was getting worse and believed that he would not be able to do well at work. Dr Thompson was shown a return to work plan, suggesting nine hours per week (three hours on each of three days per week). However, she took a history that the appellant felt that he could not cope with that. In the end, she gave him a certificate for alternative duties to cover the period 15 January 2002 to 15 February 2002.

17 Dr Thompson next saw the appellant on 14 February 2002 and took a history that he had injured his left foot on 22 January 2002. Dr Thompson did not provide treatment for the appellant's foot injury. However, she took a history that the appellant tried to use crutches - but they hurt his back.

18 As at 8 April 2002 (when Dr Thompson wrote her next report), Dr Thompson was of the view that the appellant was not able to work and that he still had 'a lot of disabling pain and spasm in his upper back, and [could not] sit or stand for more than 10 minutes at a time'. Further, she expressed the opinion that the appellant, at that time, had no capacity for work in the foreseeable future, raising the possibility that this might be for a further two years.

19 Dr Thompson saw the appellant on 16 July 2003. At that time, she found him to be acutely depressed and beginning to be suicidal. Additionally, she expressed the opinion that the appellant had not been able to work since his accident at work, and that he did not have any capacity to do useful work. Dr Thompson concluded that this was because the appellant had chronic, continuous, disabling pain and stiffness across his back and shoulders. She also said that the appellant wanted to try working (about which we will say more below). However, she noted that the appellant had no endurance over 15 minutes and no fitness. Further, she noted that the appellant was unable to cope with training eight hours a day.

20 In mid 2003, the appellant underwent a screen assessment performed by the Wodonga Regional Health Service for participation in an inpatient chronic pain management program. Physical assessment at that time demonstrated poor posture, an abnormal gait and increased thoracic kyphosis.[13] Psychosocial assessment at that time recorded that the appellant was reporting a level of depressive symptoms that were in the extremely severe range, anxiety symptoms in the severe range and stress symptoms in the extremely severe range.

21 Subsequent to this assessment, in a report dated 2 September 2003, Dr Thompson expressed the opinion that the appellant was then unable to work and had 'no current capacity for his pre-injury work and none in the foreseeable future'. Further, she said that at that time the appellant was not able to do any work and would only be able to work in the future if his pain and stiffness was significantly reduced.

22 Dr Thompson's report of 3 April 2006 noted that the appellant's condition appeared to have stabilised and did not appear to be improving. At that time, Dr Thompson expressed the opinion that there was no further medical treatment that she could offer - but noted that the appellant might benefit from a warmer climate. She concluded this report by saying that the appellant had little capacity for employment unless his condition improved.

23 In her final report (3 July 2007), Dr Thompson noted the appellant's continued use of Oxycontin and the fact that Norspan patches had been prescribed so as to provide him with more continuous analgesia. The difficulty with the Norspan patches was that the appellant developed a skin sensitivity and had to go back to Oxycontin. Dr Thompson last saw the appellant on 30 March 2007. This is consistent with the fact that the appellant moved to Kempsey in New South Wales in April 2007.

24 On 29 May 2007, the appellant was examined by Mr Stanley Schofield, an orthopaedic surgeon engaged by the appellant's solicitors. Mr Schofield concluded that the appellant had suffered an aggravation of pre-existing degenerative change in his mid-thoracic spine due to Scheuermann's disease as a result of the incident that occurred in June 2001. Mr Schofield did not find any evidence of non-physical signs in his examination. He expressed the opinion that the appellant needed to undergo further investigations 'to further explain the reason why his symptoms remain severe'. An MRI and a bone scan were suggested. A bone scan performed on 28 November 2007 was reported as essentially normal. An MRI performed on 1 December 2007 disclosed a dorsal kyphosis, anterior wedging of several mid and lower thoracic vertebral bodies and Schmorl's nodes present at the end plates at multiple levels. The appearances were consistent with old Scheuermann's disease. Specifically, there were no indications on the MRI scan of any acute compression injury.

25 As to the appellant's ultimate prognosis, Mr Schofield expressed the opinion that on the basis that the appellant had had his symptoms for almost six years at the time of his examination, prognosis for the future appeared to be poor. Further, Mr Schofield found the appellant to be unfit for his pre-injury employment. However, if satisfactory medication could reduce the appellant's symptoms, then Mr Schofield believed that the appellant would become fit for suitable employment.

26 The respondent has had the appellant examined by medical specialists seven times. He was examined -

(a) on 28 August and 4 December 2001 by Mr David Chamberlain, an orthopaedic surgeon;

(b) on 26 November 2002 by Mr Peter Scott, a senior consultant surgeon;

(d) on 20 October 2003 by Mr Peter Battlay, a surgeon;

(e) on 18 May 2006 by Mr Kenneth Brearley, a surgeon; and

(f) on 31 January 2007 by Mr Clive Jones, an orthopaedic surgeon.[14]

27 Mr Chamberlain, having examined the appellant on two occasions in 2001, expressed the opinion that the appellant did not then have the capacity to undertake his pre-injury employment. However, Mr Chamberlain thought it was too early to assess any possible permanent impairment. Further, he thought that the appellant had a capacity for suitable employment and that a particular job offer that had been suggested at that time was reasonable. While Mr Chamberlain noted that there was a restriction of movement demonstrated during the second examination which did not appear consistent with his movements at other times, he nevertheless concluded that the appellant suffered from a thoracic strain exacerbating his Scheuermann's disease.

28 Mr Scott, having examined the plaintiff in November 2002, diagnosed the appellant as suffering from:

(a) An acute back strain or musculo-ligamentous injury involving the lower thoracic and upper lumbar spines.

(b) Aggravation of pre-existing asymptomatic constitutional abnormality - Scheuermann's disease.

(c) An abnormal pain response with a great deal of anxiety and frustration and development of what could be described as a chronic pain syndrome.

29 Mr Scott thought that the appellant did not have the capacity to undertake his pre-accident employment, but that he did have a capacity for suitable employment. The extent of any permanent impairment was unknown at that point because Mr Scott thought that the appellant's condition had 'hopefully' not stabilised. Further, Mr Scott was of the opinion that the appellant's anxiety and/or nervous or depressive symptoms appeared to be magnifying the appellant's overall presentation.

30 Dr Wyatt, having examined the appellant in April 2003, concluded that he had a number of 'non-physically based signs'. Particulars of these were said to be groaning, sighing and grimacing during the course of the consultation. Further, her examination of the appellant's hands disclosed what she called 'substantial weathering', calluses and ingrained dirt. The appellant explained this by reference to bringing firewood inside. Further, Dr Wyatt noted that straight leg raising was to 30 degrees bilaterally when the appellant was examined, but was normal in the seated position.

31 Dr Wyatt found the appellant's explanation in relation to carrying firewood 'implausible'. Because of the state of the appellant's hands, Dr Wyatt concluded that he was 'probably fit for pre-injury tasks'. Dr Wyatt concluded that the assessment of back problems is in large part dependent upon a person's history and statements. It is apparent from her report that Dr Wyatt did not accept the appellant.

32 Mr Battlay, having examined the appellant in October 2003, also noted that his hands were 'moderately callused and dirt-ingrained'. Mr Battlay thought that the appellant's history of unremitting thoracic pain 'appeared to be in excess of what one would anticipate, in the light of the appearance of his hands, and good flexibility when distracted'. However, Mr Battlay said that he could not exclude the possibility that the appellant had symptomatically aggravated his pre-existing thoracic Scheuermann's disease.

33 Two and a half years after Mr Battlay's examination, the appellant was examined by Mr Brearley (May 2006). Mr Brearley made no reference to the appellant's hands. Instead, he described the appellant's diagnosis in the following terms:

Chronic thoracic back pain due to soft tissue injury of the thoracic spine. The injury has occurred on a background of a constitutional development condition, namely Scheuermann's disease, in which there is some abnormality of the growth plates. Some minor wedging of the vertebrae can develop and clearly has occurred in this case. It usually presents little if any clinical abnormality. He probably does have a spine more susceptible to injury.

In addition he has developed a chronic pain syndrome and an abnormal illness response. These latter factors together with his development of quite severe anxiety and depression have resulted in his present unexpected severe grade of disability.

34 Mr Brearley concluded that the appellant's then present condition was entirely due to the incident in June 2001. As for fitness for work, Mr Brearley concluded:

He is totally unfit for his pre-injury duties. He is not fit for any other labouring work. Moreover he is not fit for any light work of any description for he cannot sit or stand for more than half an hour or so. In addition to this he is taking Endone and Oxycontin and he is significantly depressed.

After leaving school he did an apprenticeship as a tiler but he is not fit for that type of work nor is he fit for security work which he did previously.

When his disability and history of a work-related injury and his training, education and work experience are taken into account it is clear that he has no work capacity. There is no possibility of his being employed now or in the foreseeable future.

He has suffered a serious long-term impairment of a body function, namely the function of the spine. The injury has had serious consequences for the patient and he has suffered a 'serious injury'.

While the admissibility of Mr Brearley's last statement can be debated, no issue was taken by the respondent below. In any event, the substance of Mr Brearley's opinion is clear.

35 Mr Jones, after examining the appellant in January 2007, expressed the opinion:

Mr Storer has persisting mid-thoracic back pain following the injury sustained to his back in June 2001. He has been out of the workforce now for 6½ years, and a return to any form of settled employment appears unlikely at this stage. He appears to be extremely pain-focused and completely immersed in his symptoms and disability at this point in time. In physical terms, a light work capacity does exist or could be developed.

36 However, Mr Jones then went on to express opinions that the appellant's complaints are significantly exaggerated, and that he did not believe 'that the condition bears a direct relationship to employment at the present time, considering the fact that the injury occurred over six years ago'. Further, Mr Jones' assessment of the matter was that the appellant's condition was largely functional and that the appellant has a work capacity (although lifting should be limited to ten kilograms, the workplace should be 'suitable' and repeated bending 'should be minimised'). Without seeing any surveillance material, Mr Jones expressed the view that the appellant 'would present himself quite differently in everyday life than he does in the formal examination setting'.

Return to work initiatives and vocational training

37 There was extensive evidence given below concerning return to work initiatives and vocational training. Additionally, the appellant was cross-examined about these matters at some length. We have read the various reports and the cross-examination. This evidence (including the cross-examination) was accurately summarised by the County Court judge as follows:[15]

33. On 22 August 2001 the Plaintiff underwent a workplace assessment by Donnelly Ayres Consulting who recommended a graduated return to work in duties with suitable restrictions which avoided any heavy lifting, prolonged standing, repetitive bending or prolonged sitting. It was also recommended that the Plaintiff commence an active treatment program with a physiotherapist to maximise his physical capacity.

34. On 18 January 2002 the Defendant received a Return to Work Plan signed by the Plaintiff and Certificate for Work Capacity to enable the Plaintiff to undertake restricted duties. The Defendant attempted to contact the Plaintiff on 29 and 30 January. On 31 January 2002 the Plaintiff contacted the Defendant to advise that he had a foot injury and was unable to work.

35. On 20 November 2002 the Plaintiff underwent a workplace assessment by Industrial Work Conditioning Clinic [IWCC] during which he reported the following functional tolerances: sitting (15 minutes); standing (10-15 minutes); and walking (60 minutes). However the assessor also noted that the Plaintiff had driven three hours from Mansfield on the morning of the assessment unassisted and without a break. At that stage his treatment comprised Myotherapy once per month for the last eight months; massage as needed from a friend and exercise in the form of stretches and walking. No medication in take was reported. Under 'Presentation' the assessor noted:

'During the assessment Mr Storer presented as injury focused, maintaining he is too significantly disabled to return to work. Upon discussion as to future vocational goals Mr Storer indicated he had not considered any alternative vocational options, despite the length of time he has been out of the workforce. Based on Mr Storer's overall presentation, his motivation to return to work appears extremely questionable'.

36. Under 'Transferable Skills' the assessor noted:

'In reviewing Mr Storer's vocational and employment history he has acquired valuable transferable skills and knowledge from his previous employment as an assistant tiler, assistant cabinetmaker, sheet metal technician, Truss fabricator and security worker/crown control officer ...

Overall Mr Storer has valuable transferable skills that are highly marketable on the open market which may be performed within his current functional restrictions'.

37. Following the workplace assessment IWCC commenced a Job Seeking Program to facilitate the Plaintiff's return to suitable employment. An initial job seeking session was arranged for 18 February 2003, which the Plaintiff failed to attend without notification. IWCC arranged another session for 25 February 2003 which he also failed to attend. The Plaintiff made contact on 19 February to say that he had not attended the first session on legal advice because he had a certificate of incapacity. The Plaintiff was subsequently issued with a certificate of limited work capacity by Dr J Thompson. A further session was scheduled for 7 March 2003 which the Plaintiff again failed to attend without notification. IWCC was also unable to contact him. A further session was scheduled for 17 March 2003 which the Plaintiff did attend. However, the assessor noted the following:

'... overall Mr Storer presented as negative in presentation and created many barriers in his return to work. Specifically he claimed there were limited suitable vacancies for him to target based on his regional location [this was contrary to IWCC's survey of suitable job vacancies] ... Mr Storer then indicated he felt IWCC's job seeking assistance was not required as he felt unable to return to work or even look for a job at present ...'

38. IWCC subsequently arranged for the Plaintiff to be enrolled in a short security refresher course in early April 2003 which he failed to attend by reason of ill-health (gastro intestinal symptoms). Another course was rescheduled which the Plaintiff again failed to attend due to continued ill-health (chest infection). The Plaintiff advised IWCC that he would not be attending classes for more than eight hours per week despite having previously indicated to IWCC that he was motivated to complete the training.

39. Under cross examination the Plaintiff gave a different account of events and said that he wanted to return to light duties but was told by his boss that he would rather pay him to stay at home. The Plaintiff also had difficulty recalling his dealings with either Donnelly Ayres or IWCC and could not recall the various job descriptions which were suggested that he could perform. He also could not recall being advised by IWCC that he was expected to provide evidence to them that: he had completed certain activities, namely registered at Centrelink for job seeking and attended on a regular basis to identify examples of suitable employment; that he would register with two job placement agencies and attend on a regular basis to identify examples of suitable employment; that he would review the local newspapers for examples of suitable employment; and maintain an accurate record of his job seeking activities on the job record sheet. He agreed that he did not do any of these things. The Plaintiff denied that his general practitioner tried to get him back to light duties initially but agreed that both Donnelly Ayres and IWCC made efforts to get him back to work [contrary to what the Plaintiff had told Dr Wyatt who records that there had been no discussions as to return to work plans].

38 Before turning to the appellant's evidence (and specifically, his evidence concerning the pain and suffering consequences and loss of earning capacity consequences of his thoracic injury), it is necessary to say something about the appellant as a witness. While the transcript of the cross-examination of the appellant does not disclose that he was a witness who was intentionally prevaricating, it must be said that (for whatever reason) the appellant was not as straightforward and direct a witness as might have been expected. The appellant's inability to remember matters that could be established from the documentary evidence did not tell in his favour before her Honour (and does not tell in his favour so far as we are concerned). However, we would not accept (as her Honour did) the respondent's unvarnished submission that the appellant 'was an unreliable witness'. In our view, proper consideration of the material discloses a witness who had difficulty remembering a number of matters of significance. However, in his defence, it must be remembered that the appellant was being cross-examined about matters relating to an incident that occurred more than seven years prior to the hearing before her Honour.

39 We note that, notwithstanding her Honour's conclusion that the appellant was an unreliable witness who had a variable recollection of matters such as pre-accident work history, Dr Thompson's recommendation to return to light duties, the efforts of vocational consultants to facilitate his return to work, and the circumstances as to why he could not be contacted or did not make himself available to participate in return to work sessions or search or make himself available for suitable employment, her Honour made no specific finding that the appellant was a witness whose evidence could not be believed. In the end, we think that the appellant's evidence should be accepted in the broad - with the only real issues being the extent and severity of his levels of pain and disability and the extent and severity of the consequences which have flowed from his injury. Specifically, we are of the view that the appellant's evidence on these issues needs to be examined closely by reference to the documentary evidence tendered before her Honour.

40 In his first affidavit,[16] the appellant deposed as follows:[17]

7. The restrictions I have as a result of the injury have been pain and spasm in the upper back, difficulty sitting or standing for more than 10 minutes at a time, difficulty sleeping, restriction of movement in the spine and stiffness. I try to walk and exercise to help with my mobility. I suffer from pain between my shoulder blades. I find that I also have lower back pain and I walk with a limp. As a result of my injuries I have also become depressed and my doctor has prescribed anti-depressant medication which also helps with sleeping.

...

9. As a result of the injury I have difficulty walking and driving a car. As a result I can no longer participate in camping, fishing and horse riding which I previously enjoyed. I also can no longer play darts, football or social 'backyard cricket'. At times I also now walk with a limp due to the injury. I am restricted in my ability to undertake household and domestic tasks such as cooking, vacuuming, cleaning the bathroom, gardening and mowing the lawn. I have a wood fire and I have to carry the wood inside for the fire but I do this with difficulty and I experience an increase in pain after doing so. I previously enjoyed making furniture as a hobby, which I am now restricted in doing. I experience an increase in my upper back pain when I lean back in a chair and feel the pressure of the back of the chair across my upper back. The pain in my upper back is aggravated by coughing or sneezing. Due to the pain I suffer an 'unsteadiness' on my feet. I have difficulty sitting and standing for long periods of time and I have difficulty sleeping, often only sleeping for 2-4 hours per night. I try to walk as much as I can and do stretching exercises. I feel an increase in my level of pain in the cold weather.

41 In his subsequent affidavit,[18] the appellant deposed:[19]

5. I continue to suffer ongoing chronic and at times severe pain in my middle and upper back and across my shoulders. The pain varies in intensity and is worse with travelling, sitting and in cold weather. I have great difficulty driving for extended periods and I am forced to stop and mobilise. I also suffer pins and needles in my hand and pain in my left groin and left testicle intermittently. When this pain occurs, it is quite severe.

6. In terms of my restrictions, I continue to remain limited in the weights I am able to lift and in sitting or standing for any lengthy period and I find bending particularly difficult and painful. Sexual intercourse is painful and I remain restricted in the performance of household, domestic and recreational activities.

6. Previously I used to enjoy fishing, camping and horse riding and running. I used to sometimes run the boundary for the Tatong Football Club. My social life remains restricted. I am unable to drink alcohol because of the Morphine I am taking, which results in adverse effects if I drink alcohol.

7. I remain very restricted in my ability to perform any employment. Previously I was fit and active carrying out strenuous physical activity in the course of my employment. The insurer has attempted to have me return to work in security by obtaining an updated certificate, but I do not believe I am fit enough to work in that industry where I would be required, when employed as a bouncer, to handle all sorts of people in various conditions and at times violent. I do not believe I could safely and adequately protect myself in such a situation. I had been asked to return to obtain a certificate to enable me to work in security in which position I previously worked, but I declined to do so because I do not believe I could properly and safely perform the work for the reasons I have explained.

42 In April 2007 (after he swore both of his affidavits), the appellant moved to Kempsey in New South Wales. In his evidence-in-chief, the appellant said that the reason he moved was 'on medical advice ... to get out of the cold climate'.[20] When asked whether the move had had any effect on his symptoms, the appellant said that the move had helped. The appellant was asked and answered the following questions:[21]

What would you describe is the difference in terms of your back condition now, say when you swore the affidavit in March of 2007?---Well, the warmer climate, I don't suffer with the temperature - up and down in the cold pressure so much. I don't have as high bad days as I used to with the cold.

Can you give me some sort of comparison?---To - - -

Yes, how bad are your bad days now, compared to your bad days before?

---Well, I might only have one or two bad days, maybe, a week. It depends on my activity and that happens like if I cough or sneeze wrong, that can be aggravating, but I do feel that I have had some kind of improvement in my back since I made the move to the warmer climate.

43 Further, it would appear that since moving to Kempsey, the appellant has ceased taking what he described as 'the heavy medications' that he had previously taken for pain relief.[22] While the appellant's evidence discloses that his condition has improved since moving to a warmer climate, the precise extent of the improvement is unclear. In evidence, the appellant disclosed that he had consulted two general practitioners since his move to New South Wales - Dr Ting and Dr Lee.[23] However, no reports were tendered from either of these doctors. When asked further about his 'bad back days',[24] the appellant described them as occurring maybe once or twice a week, depending on what physical activity he has engaged in. He gave an example of bringing in a piece of firewood and putting it in the fire may be enough to give him a 'bad back day'.

44 So far as the appellant's capacity for work is concerned, the appellant gave evidence that he had not made any effort to look for work as he was 'still on a restricted and incapacitated certificate for work'.[25] How the appellant could have been on such a certificate at the time of the County Court hearing (in the light of his limited visits to doctors by that time) was not explored or explained. However, the appellant conceded that he might be fit for light duties or work that did not require heavy lifting, bending or long periods of being on his feet.[26]

45 During the course of his cross-examination, the appellant was shown video surveillance films taken of him in November 2002 and January 2007. We have watched the videos and agree with the County Court judge's assessment of them that they are not inconsistent with the evidence of the appellant.[27] In our opinion, the videos are of little assistance in the resolution of this proceeding.

46 The appellant bears the onus of establishing that when any psychological or psychiatric consequences of his injury are disregarded, the physical consequences of his injury satisfy the 'very considerable' test referred to in s 134AB(38)(c) of the Act. In this case, there are clearly psychological or psychiatric consequences that the appellant has suffered as a result of the injury affecting his thoracic spine. These consequences are variously described by the medical practitioners as 'an abnormal illness response', 'severe anxiety and depression', 'largely functional' and 'non-physically based signs'. None of the medical practitioners gave evidence which assists us in unravelling the psychological or psychiatric consequences from any physical injury the appellant has suffered from or might be suffering from.

47 While counsel for the appellant sought to downplay the significance of the psychological and psychiatric consequences in this case, in our view these considerations have been manifest from the time of Mr Falkenberg's consultation with the appellant on 23 July 2001. Mr Falkenberg's description of the appellant's reaction to his injury as 'so overwhelming ... that it did not indicate much prognosis for recovery ...' shows that even at this early time non-physical matters were starting to play a part.

48 Since suffering injury in June 2001, the appellant was (for a period of time) taking psychiatric medication. In his evidence, the appellant said that it was after the intervention of the Albury Pain Management Clinic in 2003 that he ceased taking psychiatric medication.[28] While the appellant was cross-examined as to the precise involvement of the Albury Pain Management clinic,[29] the appellant was unable to describe what intervention occurred at the Albury Pain Management Clinic that caused him to cease his psychiatric medication. All the appellant was prepared (or able) to say was that he did not have any pain management treatment - but rather had treatment for anger management from a psychologist, Mr Wolf. No report from Mr Wolf was tendered in evidence by the appellant.

49 During the course of argument, the appellant placed significant weight upon the reports of Mr Schofield. However, two points must be made about Mr Schofield's opinions. First, Mr Schofield recommended further investigations be performed 'to further explain the reason why his [the appellant's] symptoms remain severe'. In our view, this opinion carries within it the suggestion from Mr Schofield that while he did not find any evidence of non-physical signs in his examination, he could not explain the severity of the appellant's symptoms without further investigations being undertaken. We note that the further investigations suggested by Mr Schofield that were actually performed (the MRI and the bone scan) did not reveal an explanation as to why the appellant's symptoms were so severe.

50 Secondly, Mr Schofield countenanced the possibility of the appellant becoming fit for suitable employment if the appellant's symptoms could be reduced. The evidence of the plaintiff discloses that there has now been a reduction in the appellant's symptoms (brought about by the appellant's move to a warmer climate). However, no further examinations or reports were arranged with Mr Schofield. Accordingly, we do not have the benefit of Mr Schofield's opinion on the facts as they were at or shortly prior to the hearing before the County Court.

51 Significant reliance was also placed by the appellant upon the opinion of Mr Brearley. Mr Brearley's opinion concerning the development of a chronic pain syndrome was said by counsel for the appellant to be 'only an additional matter'. However, close attention to Mr Brearley's actual report discloses that while the development of a chronic pain syndrome was an additional matter, there was also an abnormal illness response and that '[t]hese latter factors together with his development of quite severe anxiety and depression have resulted in his present unexpected severe grade of disability'.

52 The appellant's application was heard in the County Court in August 2008. However, no evidence from any treating medical practitioner was tendered in relation to the 14 month period from April 2007 (when the appellant moved to Kempsey) to August 2008. This failure assumes some significance when one has regard to the improvement the appellant admitted to in his condition during that period. Further, the absence of medical evidence from treating medical practitioners during this period is not cured by the provision of Mr Schofield's medico-legal report following his examination of the appellant on 29 May 2007.

53 Section 134AB(38)(j) requires the assessment of serious injury to be made 'at the time that the application is heard by the Court'. A question has arisen in other s 134AD appeals as to whether this Court must decide the matter as at the date of the hearing of the appeal or as at the date of the hearing before the County Court.[30] To date, appeals have proceeded on the basis that the relevant date is the date of hearing before the Court below. While we, too, have adopted this approach, we note that in this case, whether the time of the assessment of serious injury was the time of the County Court hearing or the date of hearing before us, no different result would have been yielded. The absence of medical evidence since the appellant went to Kempsey makes it difficult (if not impossible) for us to be satisfied that there was a serious injury at the time that the application was heard by the Court.

54 While it might be that the physical injury sustained by the appellant in June 2001 had physical consequences that could fairly be described as significant or marked during some part or parts of the six years that followed, the state of the evidence in this case leaves us unable to conclude that when the psychological or psychiatric consequences of the appellant's physical injury are disregarded, the appellant's physical injuries gave rise to permanent[31] impairment in respect of which the pain and suffering consequences or the loss of earning capacity consequences could fairly be described as being 'at least very considerable'. In our view, the appellant has failed to establish that he sustained a serious injury within the meaning of s 134AB of the Act.

55 While this case has posed the usual difficulties associated with trying to resolve conflicting medical evidence from medical practitioners whose reports were merely tendered (rather than from witnesses who were heard and cross-examined), in this case it has not been necessary to resolve every difference of opinion. This is because the appellant chose not to tender any medical evidence in relation to his condition as it was after his symptoms improved and he stopped taking 'the heavy medications' that he had taken previously. Further, the appellant chose not to tender any medical evidence that would have enabled either the County Court or this Court to disentangle (and thus not take into account) the obvious psychological and psychiatric consequences in this case. These failures made it impossible for us to conclude that the appellant satisfied the onus of establishing compliance with the 'very considerable' test either in respect of pain and suffering or loss of earning capacity consequences.

56 Finally, an unusual feature in this case is that notwithstanding the several efforts made to get the appellant back to work,[32] the appellant appears to have neglected or refused to give his full cooperation in these matters. Various explanations and excuses were given by the appellant (some of which we have set out above). While we have not based our decision on these matters, it must be said that the explanations given by the appellant were not particularly convincing. The failure to fully engage in the efforts made to get him back to work may stem from psychological or psychiatric features. It is not necessary for us to resolve this matter - other than to say that they posed a further impediment to the appellant establishing loss of earning capacity consequences which were 'at least very considerable'.[33]

57 It follows from what we have said above that the appeal must be dismissed.

[1] See [4] of the appellant's affidavit sworn 17 May 2006.

[2] See the appellant's claim for compensation dated 7 June 2001.

[3] See T16.21 and T17.10 of the transcript below, and note further the appellant's evidence at T16.21 that the 'hips' were smaller than trusses.

[5] See [1] of the appellant's outline of submissions dated 17 February 2009.

[6] 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; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170 and Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181.

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

[9] In the appeal before us, neither party sought to adduce further evidence. Although at one stage the appellant foreshadowed asking us to examine video footage of the appellant giving evidence in the County Court, this application was eventually not persisted with (footnotes omitted).

[10] $178 in the 1999 financial year and $460 in the 2000 financial year.

[11] The evidence does not disclose precisely what work Mr Falkenberg was referring to. However, in context, it is clear that he was referring (at least) to labouring work - if not light labouring work.

[13] Increased convexity in the curvature of the thoracic spine.

[14] We note that according to Mr Jones' letterhead, he is an orthopaedic surgeon who practises in the area of hip and knee replacement/revision surgery. While no issue was taken as to the appropriateness of the appellant being examined by Mr Jones, on its face it appears (at least) a little curious that the respondent would have a worker with a mid-thoracic injury examined by someone whose specialty appears to involve other areas of the body.

[19] See [5], [6], [6] and [7].

[23] There is a lack of precision concerning how often the appellant saw Dr Ting and Dr Lee. However, it would appear that he has seen Dr Ting twice (T45.31) and Dr Lee at least once (T46.31-47.14).

[29] Which we assume was conducted by the Wodonga Regional Health Service (see [20] above).

[30] See for example Church v Echuca Regional Health [2008] VSCA 153, [127] and Jayatilake v Toyota Motor Corporation Australia Limited [2008] VSCA 167, [31]-[33].

[31] In the sense of likely to last for the foreseeable future (see Barwon Spinners v Podolak [2005] VSCA 33; (2005) 14 VR 622).

[32] See the appellant's concession in this regard at T41.5 -.6.

Compensation Act 1985

Storer v Warambat Pty Ltd [2009] VSCA 210

At a glance

Court

Decision date

Before

Source

Judgment (98 paragraphs)

Storer v Warambat Pty Ltd [2009] VSCA 210 (18 September 2009)

Parties

Legislation Cited (1)

Cases Cited (2)