Victorian WorkCover Authority v Nguyen [2016] VSCA 284

1 By an originating motion in the County Court, the respondent, Nga Thi Thu Nguyen, sought leave pursuant to s 134AB(16)(b) of the Accident Compensation Act 1985 ('ACA') to bring a proceeding for common law damages in relation to an injury to her neck and right shoulder and arm. She relied on para (a) of the definition of serious injury in s 134AB(37), and sought leave in relation to both pain and suffering damages and pecuniary loss damages.

2 Mrs Nguyen's application was heard over two days in February 2016. It was opposed by the applicant, Victorian WorkCover Authority ('VWA'). The evidence before the judge included two affidavits sworn by Mrs Nguyen; various medical and radiological reports; video surveillance footage; an earnings summary; and documents regarding Mrs Nguyen's work capacity in 2011 and 2012. There had been a total of 15 hours of surveillance, resulting in one hour and 52 minutes of footage (approximately 36 minutes of which was played in court).

3 On 25 February 2016, the judge granted leave to Mrs Nguyen to claim damages at common law with respect to 'both pecuniary loss and pain and suffering consequences in accordance with section 134AB(16)(b)' of the ACA.[1]

4 VWA seeks leave to appeal relying on a single ground expressed as follows:

The primary judge failed to exclude from consideration the symptoms and consequences of [Mrs Nguyen's] non-organic chronic pain disorder -

(a) contrary to sub-s 134AB(38)(h) or (i) (or both of them) of the Accident Compensation Act 1985 (Vic);

(b) by reason of which his Honour erroneously granted the respondent leave pursuant to sub-s 134AB(16)(b) of that Act.

5 As we have mentioned, Mrs Nguyen relied on s 134AB(37)(a) of the ACA with respect to claimed permanent serious impairment of her neck and right shoulder affecting the function of the right upper limb.[2] She did not rely on para (c) of the subsection.[3] VWA accepted that Mrs Nguyen had suffered an injury in about 2009. There was, however, a body of evidence that by the time Mrs Nguyen ceased employment in August 2012 - and at the time of trial - she had a degree of psychological or non-organic symptomatology. Hence, the central issue in the County Court was said by VWA to be whether Mrs Nguyen had discharged her onus of 'disentangling' the organic and non-organic features of her presentation at the time of trial.[4]

6 In turn, the central issue in this Court - as the ground of appeal reflects - is whether the judge erred in granting leave to Mrs Nguyen as a result of a failure to apply 134AB(38)(h) and/or (i) of the ACA.

7 Mrs Nguyen - a 54 year-old woman of Vietnamese descent - came to Australia with her husband in 1986. From 1990 until 2012 she was employed by Western Health, working as a Patient Services Attendant from 1997 onwards.

8 Her work as a Patient Services Attendant involved a variety of tasks, including pushing patients of all sizes and weights around in their beds, and preparing and cleaning rooms. Room cleaning often involved manoeuvring heavy linen bags that were awkward to lift and handle (particularly at or above shoulder height). Further, Mrs Nguyen worked most of the time on the isolation ward, where heavy compressed air doors were difficult to open and close.

9 Prior to June 2009, Mrs Nguyen had experienced discomfort and soreness in her neck, and dominant right arm and shoulder; but in mid-June 2009, she experienced severe neck pain, with pain and soreness extending into her right shoulder and arm when lifting heavy laundry bags from a skip to a trolley (a task she usually performed many times a day). She sought treatment at the Western Hospital Emergency Department, and was prescribed medication and certified unfit for work.

10 Mrs Nguyen's general practitioner, Dr Tran, arranged a CT scan of her cervical spine in late June 2009. Among other things, the scan showed a slight loss of cervical lordosis, together with minimal central posterior disc protrusions from C3/4 to C5/6, and degenerative changes at the C5/6 interspace. Mrs Nguyen underwent physiotherapy and did not go to work.

11 In October 2009, Mrs Nguyen started seeing a new general practitioner, Dr Sheriff. At that time, Mrs Nguyen complained of a painful right shoulder and neck with shooting pain in the right arm. Dr Sheriff found that she had a weak right hand grip and weakness in the proximate right shoulder girdle muscles. On examination he further noted wasting of the proximal muscles of the right shoulder and a pathological difference in the deep tendon reflexes of the right upper limb compared to the left upper limb. Dr Sheriff arranged for her to undergo an ultrasound of the right shoulder. That showed right supraspinatus tendinopathy and right subacromial bursitis with associated bursal impingement. Towards the end of October 2009, Mrs Nguyen underwent an ultrasound-guided injection of cortisone into her right shoulder, but she experienced only passing relief from her pain and symptoms. In November 2009, Dr Sheriff arranged an MRI of Mrs Nguyen's neck. That showed mild central canal stenosis at C3/4 to C5/6, as well as mild to moderate right and mild left C5/6 foraminal stenosis.

12 The following month, November 2009, Mrs Nguyen returned to work on modified duties and was subject to lifting restrictions. Although, over time, she increased her hours, she struggled to perform the modified duties assigned to her, and was off work at various times.

13 In early 2010, Mrs Nguyen tried to return to normal duties, although she continued to avoid handling stock and linen above shoulder height when possible. She was, however, affected by ongoing pain and restriction, and ultimately was unable to return to normal duties.

14 Despite ongoing pain, restriction and weakness in her right shoulder and arm, and numbness in her right hand, Mrs Nguyen continued to work on modified duties - often part-time - in 2010 and 2011. She was able to work with the assistance of physiotherapy treatment and medication (including Endep).

15 In August 2012, Western Health terminated Mrs Nguyen's employment. At that time, she was performing light duties on a part-time basis (about four hours a day, three days a week). Since then, she has not returned to any form of employment.

16 Mrs Nguyen had worked at Western Health for many years. She enjoyed her work, and had intended to continue work until the age of 65 years. Mrs Nguyen was disappointed and frustrated when her employment was terminated, and she felt very anxious, depressed and worried about the chronic problems she had with her neck and right shoulder and arm.

17 After ceasing work, Mrs Nguyen continued to experience chronic problems in her neck and shoulder. Dr Sheriff obtained further radiological studies and referred Mrs Nguyen to a range of specialists, including Dr Freilich (a neurologist) and Dr Jensen (a pain specialist). Mrs Nguyen continued with conservative treatment, based on a combination of physiotherapy, massage, medication and avoiding activities that caused a flare-up in symptoms.

18 The trial judge summarised Mrs Nguyen's description of her ongoing condition first by reference to an initial affidavit sworn 12 August 2014:

• She gave a detailed description of the consequences of her neck pain, stating as follows:

The severity of the neck pain is unpredictable; it comes and goes. It is worse when I try normal day to day activities, for example cleaning, laundry and other domestic tasks.

• She also described the consequences affecting her right shoulder and arm stating:

Generally my symptoms are worse in cold weather.

Movement of my right shoulder and arm is restricted and frequently painful. My right arm feels weak; it lacks strength. I continue to experience numbness in my right arm and hand.

• The affidavit referred to tasks or activities involving pushing, pulling or dragging moderately heavy weights, or those which require use of her arms and shoulders in a repetitive forceful or sustained way. These resulted in, 'acute flare ups of pain in my right shoulder and neck.'
• Mrs Nguyen referred to the chronicity of the problems she had experienced both with her neck and her right shoulder and arm. She stated:

... these problems really get me down. I have become very anxious, depressed and worried about the chronic problems I have been experiencing with my neck and right shoulder and arm.[5]

19 He then referred to a further affidavit sworn on 27 January 2016 which relevantly stated:

• Mrs Nguyen has not returned to worked and described herself as:

... no longer capable of doing the work I did with [Western Health] or any work which I did in the past. My ability to work is severely restricted.

• She continues to attend Dr Sheriff for treatment. Her problems with symptoms flowing from her neck and her right arm and shoulder have continued:

There has been no improvement in the condition of my neck and right shoulder and arm. Movements of my neck are restricted and painful. The severity of the pain and restricted movement fluctuates and is generally made worse by activities.

• The symptoms flowing from Mrs Nguyen's right shoulder and arm restrict her in activities involving forceful or repetitive movements of the arm causing difficulties with aspects of housework, garden maintenance and general domestic activity.

• The plaintiff's sleep is disturbed:

If I lay on my right side, or roll onto my right shoulder, it becomes sore and painful frequently disturbing my sleep and waking me. Often, I struggle to get a good night's rest.

• She continues to take medication - Lyrica, two tablets per day, and Panadol Osteo most days, often up to four tablets per day depending on the severity of symptoms.[6]

20 The judge also noted answers given by Mrs Nguyen in the course of cross-examination including the following:

• She agreed she has become depressed and worried and has had medication prescribed by her general practitioner. She is no longer taking that medication, Allegron.
• She described the location of pain as from the top of her right shoulder going up to the nape of the neck on the right side, and on the [upper] arm on the right side and front of the shoulder joint.
• She had problems with activity at shoulder height or above, with the pain variable, but the limitation of movement always there.
• She believed the limitation on her domestic activity had worsened since she stopped work in August 2012.
• The limitations of movement of her neck fluctuated, but there were always restrictions in the movement of her arm at shoulder height or above.[7]

21 The judge rejected an attack upon Mrs Nguyen's credit based on surveillance video and concluded that his overall impression was that she displayed much greater reliance on her non-dominant left upper limb whilst under observation than would a person who was deliberately feigning symptoms.[8]

22 By virtue of ss 134AB(16) and (19) of the ACA, a worker may not bring proceedings for the recovery of damages in respect of an injury unless a court - being satisfied on the balance or probabilities that the injury is a serious injury - gives leave to bring the proceedings.

23 Section 134AB(37) relevantly defines (among other terms) serious injury as follows:

(a) permanent serious impairment or loss of a body function; or

(c) permanent severe mental or permanent severe behavioural disturbance or disorder; ...

24 We pause to note again that Mrs Nguyen relied on paragraph (a) of the definition.

25 Section 134AB(38) sets out criteria for determining what constitutes a serious injury; in particular (for present purposes):

(38) For the purposes of the assessment of serious injury in accordance with subsections (16) and (19) -

...

(b) the terms serious and severe are to be satisfied by reference to the consequences to the worker of any impairment or loss of a body function, disfigurement, or mental or behavioural disturbance or disorder, as the case may be, with respect to -

(i) pain and suffering; or

(ii) loss of earning capacity -

when judged by comparison with other cases in the range of possible impairments or losses of a body function, disfigurements, or mental or behavioural disturbances or disorders, respectively;

(c) an impairment or loss of a body function or a disfigurement shall not be held to be serious for the purposes of subsection (16) unless the pain and suffering consequence or the loss of earning capacity consequence is, when judged by comparison with other cases in the range of possible impairments or losses of a body function, or disfigurements, as the case may be, fairly described as being more than significant or marked, and as being at least very considerable;

...

(h) the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purposes of paragraph (c) of the definition of serious injury and not otherwise;

(i) the physical consequences of a mental or behavioural disturbance or disorder are to be taken into account only for the purposes of paragraph (c) of the definition of serious injury and not otherwise;

...

26 The following underlying principles are involved in the application of this statutory framework.

(1) It is logically necessary to identify the nature and extent of the relevant injury before it can be ascertained whether the consequences of an impairment produced by that injury are serious in the relevant sense.[9]

(2) If the evidence as a whole permits the conclusion that the plaintiff has suffered a physically-based impairment which satisfies the statutory test in accordance with s 134AB(38)(h) no disentangling or stripping away of additional psychological or psychiatric overlay may be required.[10]

(3) As a matter of practice and convenience, serious injury applications of the kind here in issue are approached in a two-step manner:

The first step is to ask whether there is a substantial organic basis for the pain and suffering consequences relied on. If the answer to that question is affirmative - and, of course, if the pain and suffering consequences satisfy the statutory criterion - then the applicant will succeed without the need for any 'disentangling' of the physical contributions to the pain and suffering from the psychological contributions.

If, however, that first question is not - or cannot be - answered affirmatively, then the applicant will need to take the next step and 'disentangle'. That is, the applicant will need to be able to separate the physical contribution to the pain and suffering from the psychological, in order to be able to satisfy the Court that the pain and suffering consequences attributable to the physical injury satisfy the statutory test.[11]

27 In this Court, VWA contended that the primary judge erred by failing to exclude from consideration the non-organic symptomatology in Mrs Nguyen's presentation. It was submitted that, although the evidence in some cases may allow the identification and assessment of the physical consequences of an organic injury without the need to disentangle and exclude consequences of a non-organic nature,[12] in this case it was necessary for the judge to 'disentangle' one from the other and he had failed to do so.[13]

28 Mrs Nguyen submitted that the primary judge was required to consider whether and to what extent the pain and disability of the injuries relied upon by Mrs Nguyen had a substantial organic basis. Since Mrs Nguyen's application was made under paragraph (a) of the definition of serious injury, having regard to the totality of the evidence,[14] in determining whether Mrs Nguyen satisfied the test, the primary judge was not required to take into account psychological or psychiatric consequences once a substantial organic basis was found for Mrs Nguyen's symptoms and impairments. The necessity to 'disentangle' and exclude consequences of a non-organic nature only arises where a substantial organic injury has not been identified and an assessment of the physical consequences of organic injury cannot be made.[15]

29 Further, Mrs Nguyen submitted that the preponderance of medical evidence relied upon by Mrs Nguyen demonstrated persistent organic injury to Mrs Nguyen's neck and right upper arm since 2009 which severely limited her capacity for work, such that she was working reduced hours when her employment was terminated in August 2012. While some of the medical practitioners relied on by the judge noted the concurrent presence of non-organic factors, none of them found that the injury had other than a substantial organic basis. It was submitted, moreover, that the judge's reasons demonstrate he analysed the various medical opinions and determined that it was appropriate to give substantial weight to the opinion of the treating practitioner, Dr Sheriff.

30 The proposed ground of appeal is directed to the judge's reasoning. That reasoning is disclosed in his Reasons for judgment. In order to resolve the present application it is thus necessary to carefully analyse those Reasons.

31 When the Reasons are read as a whole, it is apparent that:

(a) the judge expressly recognised the necessity to identify whether and to what extent Mrs Nguyen suffered from pain and disability with an organic basis. In so doing, the judge commenced his analysis by recording the central submission of VWA, namely that Mrs Nguyen's application should be dismissed because she could not adequately separate the contribution of physical or organic injury to her claimed consequences from those which were not organically based;

(b) his Honour cited the further observations made by Maxwell ACJ in Meadows v Lichmore Pty Ltd concerning the consequences of the application of the two-step approach to which we have already referred above and upon which VWA specifically relied in the present case:

where at least some of the medical evidence suggests a significant psychological component, the evidence relied on by the applicant will need to be in a condition which will enable the Court to clearly identify whether and to what extent the pain and disability has an organic basis. Unless the evidence enables that distinction or differentiation to be made, it will be difficult for an applicant to establish on the balance of probabilities that the organic basis accounts for pain and suffering consequences which satisfy the test.[16]

(c) the judge then set out in considerable detail the competing submissions of counsel concerning this issue in the course of which detailed aspects of the medical evidence were emphasised;[17]

(d) the judge then stated his conclusions with respect to the surveillance evidence, namely that it tended to confirm rather than contradict Mrs Nguyen's claim of ongoing restriction and disability affecting the right upper limb in particular;[18]

(e) the judge then addressed the fact that Mrs Nguyen relied on both injury to the neck and upper limb as supporting a claimed loss of function to the right upper limb;[19]

(f) ultimately, his Honour found that the opinion of Mrs Nguyen's treating general practitioner should be accepted as the basis for resolving the issues in the case.[20] Dr Sheriff's diagnosis was:

this 53 year old woman, a cleaner at Western Hospital appears to have sustained a Cervico Brachial[21] injury with premature degenerative changes of the cervical spine. Her stated cause is consistent with the nature of her injury resulting in persisting symptoms of pain and weakness in the neck and the right upper limb with features of sympathetic dystrophy and chronic pain syndrome.

She has no current capacity for work and the injury having caused a significant psychological impact which has affected all walks of her life.[22]

Dr Sheriff also noted depression secondary to Mrs Nguyen's chronic pain.

In preferring Dr Sheriff's opinion to others expressed in the evidence, his Honour noted in particular that it was apparent at her first attendance upon Dr Sheriff that Mrs Nguyen had clinical signs consistent with organic injury affecting her right shoulder;

(g) his Honour concluded that Mrs Nguyen's work history also supported the view that she did not initially present with a pain syndrome 'absent an underlying organic injury';[23]

(h) furthermore, the mechanism of heavy lifting which produced Mrs Nguyen's initial symptoms fortified the view that she suffered an organic injury.[24] In addition, the opinion of Mr McTeigue confirmed permanent impairment of both the cervical spine and the right upper limb as at December 2013. Mr McTeigue is a surgeon who performed an impairment assessment and provided a report to the insurer dated 12 December 2013. In that report, he made the following diagnosis:

Intervertebral disc degeneration cervical spine mainly at C5/6 level. Chronic supraspinatus tendinitis right shoulder and subacromial bursitis.[25]

He regarded these conditions as likely to persist in the foreseeable future and certified impairment of a permanent nature both in the cervical spine and the right upper limb for the purposes of Mrs Nguyen's claim for impairment in accordance with s 98C/E of the ACA;

(i) the judge rejected the opinions of Dr Barton and Dr Fraser that Mrs Nguyen retained a full capacity for employment from a physical point of view. In his Honour's view, these opinions did not sit well with Mrs Nguyen's work history and the history of her treatment and symptoms;

I accept the opinion noted by Dr Sheriff that her depression has worsened secondarily to her chronic pain and this has had a further impact no doubt on her memory and perhaps on her presentation. Nevertheless I am satisfied that underlying any secondary depressive syndrome there remains a strong organic link between the original work related injury and the restrictions suffered presently by Mrs Nguyen.

I am satisfied as a matter of probability that she has no current work capacity and this is likely to continue indefinitely. Her persistence with her employment with Western Health for something in the order of three years after she initially complained of symptoms is consistent in my view with the plaintiff complying with her statutory obligations imposed under the Act.[26]

(k) in turn, his Honour concluded as follows:

I am satisfied that by reason of compensable injury sustained to both Mrs Nguyen's neck and her right shoulder she has suffered consequences impacting upon the use of her dominant right upper limb. Those consequences have impacted upon her capacity for employment, particularly between 2009 and August 2012 to the extent that she was initially only able to perform light duties up to a period of four hours per day, three days per week at the time her employment was terminated.

On the basis largely of the evidence contained in the reports from her general practitioner, Dr Sheriff, and accepting the plaintiff as a reliable witness, I have concluded that at the time of the application before me she has no current work capacity and that this situation is likely to continue indefinitely into the future. Even if she had continued in her employment with Western Health, the reduced capacity, as evidenced by her limited abilities and reduced working hours, would in any event have satisfied the statutory test for a grant of leave in respect of pecuniary loss.

I propose to grant leave to the plaintiff to claim damages at common law in respect of both pecuniary loss and pain and suffering consequences in accordance with section 134AB(16)(b) of the Act.[27]

32 When his Honour's Reasons are read as a whole, there is no basis for concluding that he did other than perform the task required by the statute, namely to ascertain whether the restrictions suffered by Mrs Nguyen were caused by her physical injuries disregarding the psychological consequences of those injuries.

33 VWA submits that the finding of 'a strong organic link' was not sufficient to resolve the fundamental issue in the case.

34 We do not agree. In our view, it is apparent that his Honour used this phraseology in contradistinction to a finding of non-organically based pain and disability.

35 As Mrs Nguyen submits, the judge found that there was a substantial organic basis for the consequences impacting upon Mrs Nguyen's dominant right upper limb.

36 We are satisfied that the finding was intended to exclude from consideration the psychological consequences of the physical injury. It was a positive answer to the question postulated by the first step articulated in Meadows v Lichmore Pty Ltd.[28] In consequence, there was no need for any further 'disentangling' of the physical contributions to disability from the psychological contributions.

37 The proposed ground of appeal is not that the judge's finding was plainly wrong, but nevertheless at various points VWA's submissions in effect contended that this was the case.[29] The force of the proposed ground (if any) is not assisted by confusing it in this way.

38 In its written case, VWA makes a series of specific criticisms of the judge's Reasons apart from the fundamental criticism to which we have referred relating to the terms in which his Honour expressed his ultimate findings. We shall deal with each of the criticisms in turn.

39 First, it is submitted that the reference by the judge to surveillance was irrelevant to the question whether and to what extent Mrs Nguyen's presentation was affected by physical as opposed to psychological factors. This is not so. VWA's case was put in part on the basis of the opinions of Drs Fraser and Barton that Mrs Nguyen was malingering. The surveillance footage was directly relevant to assessing this hypothesis and to the judge's assessment of the reliability of Mrs Nguyen's evidence including her account of ongoing pain, disability and restrictions.

40 Secondly, it is submitted that, in referring to the opinion of Dr Sheriff, his Honour did not deal with the fact that Dr Sheriff referred in his opinion not only to organic but also to non-organic features of Mrs Nguyen's presentation. His Honour referred to this aspect of Dr Sheriff's opinion at paras 58 and 59 of his Reasons. In turn, it is plain that it is Dr Sheriff's acceptance of depression as secondary to organic pain which informs the terms in which his Honour ultimately expressed his findings at para 64 of his Reasons.

41 Thirdly, it is submitted that his Honour's finding concerning an initial organic basis for pain does not address the evidence as to her subsequent symptomology. This is so but it was nevertheless a significant starting point for his Honour's final conclusion. This conclusion was based on the evidence as a whole including the stated cause of the injury, Mrs Nguyen's work history, Mrs Nguyen's presentation to her treating medical practitioners, the medical imaging, the surveillance evidence, and the judge's view of Mrs Nguyen's reliability as a witness.

42 Fourthly, it is submitted that his Honour erred in concluding that he was 'fortified' by the opinion of Mr McTeigue. In fact, his Honour did not use this verb with respect to that opinion. His Honour accepted Mr McTeigue's opinion as one which 'confirms my opinion'. The fact that the medical opinion was reported for the purposes of s 98C of the ACA and that it was therefore expressed disregarding 'any psychiatric or psychological injury, impairment or symptoms arising as a consequence of, or secondary to, a physical injury'[30] meant that it was directly relevant to the issue which his Honour had to consider, namely whether Mrs Nguyen had suffered permanent organic injury causing consequences of the necessary seriousness.

43 Fifthly, it is submitted that his Honour erred in discounting the opinions of Drs Barton and Fraser on the basis that he did. In this context, there was no error in taking into account Mrs Nguyen's work history together with the surveillance evidence to which we have already referred. The judge was entitled to prefer the evidence of consistent continuing behaviour to evidence of opinions based on brief medical examinations carried out for medico-legal purposes.

44 Sixthly, it is submitted that the reference to 'any secondary depressive syndrome' in his Honour's ultimate finding addressed only a relatively insignificant part of the evidence concerning psychological consequences. The reference was to that part of Mrs Nguyen's condition which Dr Sheriff accepted was non-organic. It was open to express the finding by reference to Dr Sheriff's opinion.

45 Seventhly, it is submitted that the ultimate finding did not expressly refer to non-organic and psychological components in Mrs Nguyen's presentation referred to in other parts of the medical opinion evidence. It is true that this is so, but the judge was not bound to rehearse every element of the competing evidence in stating his conclusion. That conclusion was directed (as it was required to be) to the fact of organic injury and its consequences.

46 Eighthly, it is submitted that his Honour's ultimate finding does not adequately specify the organic injury. Read as a whole, it is plain from his Honour's Reasons that he accepted Dr Sheriff's view that Mrs Nguyen suffered a 'Cervico Brachial injury' with premature degenerative change of the cervical spine. The significance of this view fell to be assessed in part having regard to the medical imaging. It also fell to be understood in the light of the circumstantial evidence as a whole to which we have referred. In this regard, it is significant that the judge accepted that Mrs Nguyen was a reliable witness.

47 The judge was required to resolve a material conflict in the medical opinion evidence before him. Moreover, he was required to do so without the assistance of cross-examination of any of the authors of the reports in which the relevant opinions were expressed. Dr Sheriff's report referred to and had regard to the long-term history he had obtained, the observations he had made of Mrs Nguyen over time upon medical examination, the medical imaging available to him, and the opinions of specialists to whom Mrs Nguyen was referred at various points in time in the course of her treatment. The report was on its face careful and comprehensive. Moreover, no application was made to cross-examine the doctor. It cannot be said that it was not logically open to the judge to express his conclusion as to the resolution of the evidentiary issues in the way that he did.

48 Ninthly, it is submitted that the judge's Reasons failed to engage with the extensive body of medical evidence that identified a psychological component in Mrs Nguyen's presentation particularly since 2012. We do not accept this criticism. The judge referred to the reports of Dr Stockman,[31] Dr Jensen,[32] Dr Freilich,[33] Dr Silcock,[34] Dr Barton,[35] and Dr Fraser.[36] Putting aside the latter two reports, the thrust of the bulk of the opinion evidence on which VWA relied (as distinct from that upon which Mrs Nguyen relied) was that Mrs Nguyen's symptoms could not be fully explained on an organic basis. His Honour both adverted to this body of evidence and directly addressed the issue which it raised.

49 It is not to the point that a different judge, or indeed this Court, may have reached a different view from his Honour. Nor is the question for this Court whether, as VWA submits, the judge 'should' have reached a different conclusion on the evidence.

50 The proposed ground of appeal is not that his Honour was plainly wrong: it is simply that he failed to apply the relevant test. In our view, it is clear from his Reasons that he did apply the relevant test and that he engaged with the evidence as a whole in reaching his conclusion. Moreover, and in any event, we do not think that his Honour's ultimate conclusion could be said to be 'glaringly improbable' or contrary to 'incontrovertible facts or uncontested testimony'.[37]

[1] Nguyen v Victorian WorkCover Authority [2016] VCC 118 [69] ('Reasons').

[3] That is, 'permanent severe mental or permanent severe behavioral disturbance or disorder'.

[9] Barwon Spinners Pty Ltd v Podolak [2005] VSCA 33; (2005) 14 VR 622, 638-9 [33].

[10] Jayatilake v Toyota Motor Corporation Australia Ltd [2008] VSCA 167; (2008) 20 VR 605, 610-11 [19]-[22] (Ashley JA), 636 [170] (Neave JA), 636 [173] (Pagone AJA); Zivolic v Hella Australia Pty Ltd [2007] VSCA 142 [19].

[11] Meadows v Lichmore Pty Ltd [2013] VSCA 201 [21]-[22] (Maxwell ACJ, Robson and Dixon AJJA agreeing); Fokas v Staff Australia Pty Ltd [2013] VSCA 230 [5]-[6] (Nettle JA), [8] (Hargrave AJA), [60] (Dixon AJA).

[12] Jayatilake v Toyota Motor Corporation Australia Ltd [2008] VSCA 167; (2008) 20 VR 605, 612 [24]-[28] (Ashley JA); Zivolic v Hella Australia Pty Ltd [2007] VSCA 142 [19]-[20] (Redlich JA).

[13] Mutual Cleaning & Maintenance Pty Ltd v Stamboulakis [2007] VSCA 46; (2007) 15 VR 649; Meadows v Lichmore Pty Ltd [2013] VSCA 201; Papamanos v Commonwealth Bank of Australia [2014] VSCA 167.

[14] See Jayatilake v Toyota Motor Corporation Australia Ltd [2008] VSCA 167; (2008) 20 VR 605, 610 [17]-[18] (Ashley JA with whom Neave JA and Pagone AJA agreed); Papamanos v Commonwealth Bank of Australia [2014] VSCA 167 [36].

[15] Meadows v Lichmore Pty Ltd [2013] VSCA 201 [21] (Maxwell ACJ).

[16] [2013] VSCA 201 [29], cited in Reasons [24] (emphasis of Judge Dyer).

[21] An injury affecting the neck and arm.

[26] Reasons [64]-[65] (emphasis added).

[27] Reasons [67]-[69] (emphasis added).

[28] [2013] VSCA 201.

[29] Cf Mobilio v Balliotis [1998] 3 VR 833. See also Hawkins v DHL Express (Australia) Pty Ltd [2013] VSCA 26 [4] and the authorities there cited.

[30] ACA s 91(2).

[37] Cf Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679, 686-7 [43].