Zivolic v Hella Australia Pty Ltd [2007] VSCA 142

Court of Appeal (Vic)|2007-06-14|Before: MAXWELL P, CHERNOV and REDLICH JJA

ACCIDENT COMPENSATION - Whether "serious injury" as defined - Need to separate psychological from physical causes of pain and suffering - Whether narrative test for serious injury applied correctly - Whether vocational assessment materials confined to incapacity attributable only to organic injury - Whether finding as to loss of earning capacity open on evidence - Discussion of concept of disentangling or stripping away psychological from physical injuries - Accident Compensation Act 1985 s 134AB(16)(b), 134AB(38)(h) - Appeal dismissed.

2 There was no dispute that the appellant had suffered a rotator cuff injury to her shoulder in the course of her employment. The question was whether the injury was serious, as defined by the Act. Following surgery to repair the rotator cuff tear and a subsequent procedure called hydro-dilation, the appellant continued to experience pain and restricted movement in her right shoulder. The Judge found that there was an important psychological component to Mrs Zivolic's then current presentation of symptoms. On the evidence before the court, that finding was, in my opinion, clearly correct.

3 Referring to paragraph (h) of sub-s 134AB(38), his Honour said that it was necessary for Mrs Zivolic -**

"to identify the impairment of bodily function and the consequences with regard to 'pain and suffering' and 'loss of earning capacity' that are physically produced without regard to psychological or psychiatric consequences".[1]

**4 This was exactly what the statute required. As plaintiff, Mrs Zivolic had to persuade the court on the balance of probabilities that the consequences of her physical injury satisfied the statutory criteria - the so-called narrative test - in relation to pain and suffering consequences and/or loss of earning capacity consequences. Since the medical evidence revealed that her symptoms were partly psychological in origin, the question for the Judge was whether the evidence enabled him to be so satisfied, leaving the psychological or psychiatric consequences out of account.

5 As to the state of the evidence, his Honour said:**

"49. In my view, a difficulty with the expressions of opinion, by most of the medical practitioners, concerning the Plaintiff's capacity to perform particular physical functions and the assessments made by the vocational assessors is that the analysis is done on the basis of the Plaintiff's presentation with respect to pain and restriction of movement which includes the psychological component.

It was only during the presentation of the evidence that an attempt was made to isolate the restrictions concerning physical activity, which might or would be produced physically by the compensable injury suffered by the Plaintiff.

In my view, it was clear to the parties at that outset of this case that there was a live issue concerning the presence of an important psychological component to the claimed injury. The presentation of evidence focussing on the organic injury and its physical consequences occurred essentially in running and in particular during the evidence of Dr Patrick and Mr Salmon. This is far from satisfactory.
The Plaintiff faces a difficult task in separating out the psychological, or psychiatric, from the physiological, or organic, when considering the consequences of the bodily impairment."

**6 As the Judge noted, the evidence led on behalf of Mrs Zivolic did not seek to separate the psychological from the organic causes of her ongoing symptoms. Senior counsel for the employer did, however, squarely raise the issue in the course of cross-examining Dr Patrick, a rheumatologist who had seen Mrs Zivolic between June 2002 and October 2003, and Mr Salmon, the surgeon who had repaired the rotator cuff tear.

7 Under cross-examination, Dr Patrick confirmed that the repair operation had been successful. He expressed the view that Mrs Zivolic's ongoing problems were "a mix of some physical and pain amplification issues". When asked how much of the presentation of her symptoms was psychological and how much was physical, Dr Patrick said it was "difficult to quantify".

8 In his report, Mr Salmon had expressed the view that post-operatively Mrs Zivolic had "signs of chronic pain syndrome". He said:**

"Her signs were not consistent with ongoing rotator cuff pathology and were more in keeping with chronic pain syndrome. The prognosis with respect to chronic pain syndrome is that there is generally a persistence of symptoms despite treatment."

**9 In cross-examination, Mr Salmon said that the hydro-dilation procedure would not explain ongoing physical symptoms. He agreed with counsel for the respondent employer that he could not assess the degree to which her continuing symptoms were due to an ongoing organic problem on the one hand and to psychological components on the other. He agreed that the psychological component was "certainly important" in Mrs Zivolic's presentation.

"63. As noted already, the vocational material relied upon in support of the Plaintiff's case assumes that all of the Plaintiff's symptoms are relevant to an assessment of her capacity for suitable employment. Disentangling the relevant injury in the vocational material, in these circumstances, and determining its consequences with regard to loss of earning capacity, can be a difficult, if not impossible, undertaking. I find myself unable to do so with any degree of confidence. For example, the pain reported by the Plaintiff was very significant and I am unable, to isolate the psychological component from the physical and determine what the vocational assessors might have said about her capacity once the psychological pain component is removed from the symptoms. Such an undertaking was not attempted on behalf of the Plaintiff. I consider that Mr Gorton is correct when he submitted that I should not presume what the vocational assessors would have said concerning the Plaintiff's capacity for suitable employment had the symptoms been confined to those that were organically based. At least, I should not presume that their views would be unaltered. It is of course clear that the Plaintiff would be restricted in her capacity for employment but this is not in dispute.

Having regard to the definition of suitable employment, I am not satisfied on the evidence that the Plaintiff has no capacity for suitable employment. The strong picture that emerges from the evidence of Mr Salmon and Dr Patrick is that when focus is on the organic injury and its physical consequences, the Plaintiff would have a capacity for suitable employment. The references to her having a capacity for part-time work, particularly those of Dr Thomas as relied upon by the Plaintiff, seem to me to relate, at least in part if not to a major part, to the effect of the persistent pain affecting her right shoulder. I accept that the Plaintiff is restricted in the use of her right arm due to organic injury, and I accept that this is likely to continue permanently, but the organic injury does not prevent the use of the arm altogether. The Plaintiff has limited skills and she is 59 years old. However, on the evidence presented, I consider that the organic injury would not prevent her from undertaking some suitable employment. She could not engage in repetitive reaching or repetitive use of the right arm. She would be restricted in the weights she could lift and the degree to which she could extend her right arm, particularly beyond 60 degrees. The organic injury should not prevent lifting moderate weights with the right arm by the side. The organic injury should not prevent the manipulation of objects at bench height.
It is for the Plaintiff to establish on the balance of probabilities that her injury, disregarding psychological or psychiatric consequences, has resulted in the required loss of earning capacity. On the evidence presented, given that the Plaintiff has a capacity for suitable employment, I am not satisfied that the Plaintiff has demonstrated the loss of earning capacity required by s134AB(e), measured as set out in s134AB(f). I am not satisfied that the consequences to the Plaintiff of the impairment or loss of body function with respect to loss of earning capacity when judged in comparison with other cases in the range of possible impairments or losses of a body function is fairly described as being more than significant or marked, and as being at least very considerable.
Similarly, it is for the Plaintiff to establish that the consequences of her injury with regard to pain and suffering are serious. Mr Kennan relied in part on intermittent pain but relied essentially on loss of amenity and loss of enjoyment of life. In particular, loss of employment and loss of enjoyment of home life. The effect of the evidence of Dr Patrick and Mr Salmon with regard to the expected physical consequences of an injury such as the Plaintiff's is that she should be able to lead a fairly normal life. Clearly, the Plaintiff suffers a reduction in her capacity to work, as she did, and perform domestic tasks, as she did, as a result of the organic injury. The Plaintiff agreed with Mr Gorton that given her husband's pension arrangements there is not a great incentive for her to work.
I am familiar with and have had regard to the Court of Appeal in the decision of Humphries v Poljak [1992] VicRp 58; [1992] 2 VR 129 and in particular to the analysis of each of the cases then before the Court of Appeal. I am unable to say that once the psychological component is removed that the Plaintiff would be prevented from leading a relatively normal life because of the relevant consequences of her organic injury. In my view, Mr Gorton is correct when he submitted that the burden of proof is of ultimate importance and that the Plaintiff has failed to discharge it. I am not satisfied that the consequences to the Plaintiff of the impairment or loss of body function with respect to loss of earning capacity when judged in comparison with other cases in the range of possible impairments or losses of a body function is fairly described as being more than significant or marked, and as being at least very considerable."

**11 Counsel for Mrs Zivolic argued first that his Honour posed the wrong test in paragraphs [67] and [68] with respect to the pain and suffering consequences. It was submitted that instead of applying the statutory test - "more than significant or marked, and ... at least very considerable" - his Honour approached the question as if the test was "whether the plaintiff would be prevented from leading a 'relatively normal life' because of the relevant consequences of her organic injury". I am not persuaded by this submission. Given that the learned Judge set out in full the narrative test for serious injury, the only conclusion open is that his Honour applied the correct statutory test. (I interpolate that in paragraph [68] there is what is apparently a mistaken reference to loss of earning capacity consequences. His Honour was unmistakably dealing with the pain and suffering consequences, and I read paragraph [68] accordingly.)

12 The reference to "leading a relatively normal life" was, in my view, no more than an expression of his Honour's conclusion about the effect of the injury on the appellant's enjoyment of life, that having been the focus of the submissions made on her behalf. It was, moreover, a reflection of the evidence given by Dr Patrick under cross-examination that, where a rotator cuff tear is repaired effectively by operation, the patient would be expected to be able to live a fairly normal life, even if restricted in excessively repetitive or above-shoulder work. The Judge's conclusion in those terms was the last step in his reasoning to the conclusion that Mrs Zivolic did not satisfy the narrative test.

13 In relation to loss of earning capacity consequences, counsel for Mrs Zivolic drew attention in argument on the appeal to a report by Dr Clayton Thomas, a consultant in rehabilitation and pain medicine. Unlike Dr Patrick and Mr Salmon, Dr Thomas saw Mrs Zivolic only once; and, unlike those doctors, Dr Thomas concluded that: "There was no evidence psychosocial factors or the like were contributing to her pain. The nature of her problem appeared to be organic." Dr Thomas expressed the following view about the restrictions which should be placed on Mrs Zivolic:**

"From a limitation point of view I would place the following restrictions on her. I think that work that could be performed would need to be performed without the use of her right shoulder. As such, work would need to be placed immediately in front of her on a bench or the like, where there is no requirement to repetitively reach forward, to the side or below waist height. She would not be able to lift objects greater than 2 kg with the affected right upper limb.

She has ongoing persistent pain in the right shoulder. Her efficiency at work and her productivity at work has been limited as a result of this, even within the restrictions that I have placed on her.

If she is able to use both arms, I would place a 5 kg lifting limit on her.

With a benevolent employer providing duties within such restrictions, she may be able to return to work in a part time capacity. Within these restrictions, I think she probably could return to work in a position that involved up to 20 hours of work per week. As stated however, I would have thought that her efficiency and productivity would be reduced in view of the persistent pain affecting her right shoulder."

14 The submission for Mrs Zivolic was that the restrictions which Dr Thomas here defined were those which the other doctors attributed to the physical injury. That being so, it was argued, the Judge should have concluded that Mrs Zivolic had no capacity for work beyond 20 hours per week. In my opinion, there was no error in this regard. Once the Judge accepted - as, in my opinion, he correctly did - that there was a significant psychological component in the appellant's ongoing symptoms, Dr Thomas's report was of little assistance. His opinion about her capacity to work only 20 hours per week was plainly based on the picture which she presented, of "ongoing persistent pain in the right shoulder". Dr Thomas considered that the symptoms were all organic in origin, but in this respect he was wrong. It was, as the Judge rightly concluded, entirely speculative as to what conclusion Dr Thomas might have reached about her capacity for work had he been asked to

15 As it stood, Dr Thomas's report did not in my view justify any conclusion different from that to which the Judge came. In any case, as the Judge said, the difficulty he had in separating the psychological from the physical causes of the appellant's pain and suffering meant that he could not be satisfied that any loss of earning capacity attributable only to the physically-based pain and suffering consequences satisfied the narrative test. Once the former task in relation to pain and suffering consequences proved to be impossible, the latter task in relation to loss of earning capacity consequences was also impossible.

16 I consider that the appeal should be dismissed for the reasons given by the learned President.

17 I agree, substantially for the reasons given by the President, that the appeal should be dismissed.**

**18 I wish to make these further observations. This was a case where the plaintiff had failed to adduce evidence which established that she had suffered an injury the physical consequences of which constituted a serious injury within the meaning of the Act. The trial Judge, in extensive and careful reasons, concluded that he was not satisfied, on the most favourable view of the evidence for the plaintiff, that the physical injury which she had suffered was a serious injury. The Judge found that the plaintiff also suffered from psychological or psychiatric consequences as a result of the injury she sustained, although these were not relied upon in support of the application.

19 Although his Honour spoke, in the language of Barwon Spinners Pty Ltd & Ors v Podolak,[2] of "disentangling" the relevant injury, it was unnecessary for him to do so in the light of the accepted medical evidence concerning her physical injury which the plaintiff relied upon. Where an application is made under s 134AB of the Act, and the evidence is consistent with the plaintiff having suffered both physical and psychiatric or psychological injury, if the nature of the medical evidence permits the conclusion that the physical consequences of the injury constituted a serious injury, then, notwithstanding the requirements of s 134AB(38)(h), no disentangling or stripping away of psychological or psychiatric consequences may be required. These concepts rest upon the often false assumption that there will be a need to work backwards from the plaintiff's condition as found at trial and which may be the consequence of multiple causes.**

**20 The use of such terminology, which is not to be found in the Act, may, as it did in this case, lead the trial Judge to conclude that the plaintiff necessarily had an obligation to demonstrate the nature and extent of the psychiatric or psychological injury, so that it could be excluded when assessing whether the plaintiff had suffered a serious injury within s 134AB(37)(a) or (b). Whether it will be necessary in a particular case for a plaintiff to do so, that is to say, to unravel the plaintiff's condition and exclude the consequences of another contributing cause, will depend upon whether the medical evidence has sufficiently identified the physical consequences of the injury for the plaintiff.

21 The trial Judge stated, in the passage quoted by the President, that he found it a difficult if not an impossible task to disentangle the relevant injury in the vocational material for the purpose of determining whether the appellant had made out the claim based upon loss of earning capacity. As counsel for the respondent rightly acknowledged during argument, vocational experts do not attempt to isolate and attribute incapacity to organic or psychological or psychiatric causes. Their task rests upon assumptions which they are asked to make as to the incapacity of the plaintiff and to determine vocational opportunity in that given context. It is for medical practitioners and other witnesses to provide evidence as to the nature and consequences of the injury suffered by the plaintiff and for the Judge to determine whether such consequences meet the statutory criteria.

Appellant pay the respondent's costs of the appeal.

[1] Zivolic v Hella Australia Pty Ltd [2006] VCC 707, [47] (Judge Punshon).

Compensation Act 1985

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