Edirisinghe v Victorian WorkCover Authority

[2024] VCC 1973

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-23-04348

CHAMILA PRIYANGANI EDIRISINGHE	Plaintiff
v
VICTORIAN WORKCOVER AUTHORITY	Defendant

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JUDGE:	HER HONOUR JUDGE MAGEE
WHERE HELD:	Melbourne
DATE OF HEARING:	10,11 and 12 April 2024
DATE OF JUDGMENT:	13 December 2024
CASE MAY BE CITED AS:	Edirisinghe v Victorian WorkCover Authority
MEDIUM NEUTRAL CITATION:	[2024] VCC 1973

REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION

Catchwords:              Serious injury application – injury to the spine – pain and suffering – pecuniary loss

Legislation Cited:      Workplace Injury Rehabilitation and Compensation Act 2013, s325

Cases Cited:Mobilio v Balliotis [1998] 3 VR 833; Church v Echuca Regional Health (2008) 20 VR 566; [2008] VSCA 153; Dordev v Cowan & Ors [2006] VSCA 254; Petrovic v Victorian Workcover Authority [2018] VSCA 243; Popal v Transport Accident Commission [2023] VSCA 222; Meadows v Lichmore Pty Ltd [2013] VSCA 201; Shrimpton v Victorian Workcover Authority [2024] VCC 245; Lexa v Transport Accident Commission [2019] VSCA 123; Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69; Transport Accident Commission v Katanas [2017] HCA 32.

Judgment:                  Application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms S Gold with Ms K Karadimas	Maxiom Injury Lawyers
For the Defendant	Ms S De Guio	IDP Lawyers

HER HONOUR:

Introduction

1Ms Chamila Edirisinghe (“the plaintiff”) is a former personal care worker. She claims to have suffered an injury to her upper back on 17 March 2021 when she lifted a mattress in the course of her employment with Casey City Council (“the employer”). She also asserts that she was required to perform heavy and repetitive tasks in the course of her work when caring for residents and undertaking home care duties between January 2018 and March 2021.

2Ms Edirisinghe applies for leave to bring a common law proceeding seeking pain and suffering damages and pecuniary loss damages pursuant to the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (“the Act”).

3At the hearing Ms Gold of Counsel appeared with Ms Karadimas of Counsel for Ms Edirisinghe. Ms De Guio of Counsel appeared for the defendant, the Victorian Workcover Authority (“the VWA”).

4Ms Edirisinghe relies upon paragraphs (a) and (c) in the definition of “serious injury” under s325(1) of the Act.

5Two body functions were relied upon under paragraph (a):

·        The spine; and

·        The nervous system.

6The second body function was described as resulting from a neuropathic chronic pain condition which was claimed in the alternative if the Court found that Ms Edirisinghe had not discharged her onus regarding the spine.

7The paragraph (c) injury relied upon was a chronic pain disorder together with a chronic adjustment disorder and depressed mood.

Legal principles

8The hearing proceeded in the usual way and the legal principles were not in dispute.

9In relation to paragraph (a), for the pain and suffering claim, Ms Edirisinghe must establish, on the balance of probabilities, that the impairment consequences of the claimed injury, when judged by comparison with other cases in the range of possible impairments, can be fairly described as being more than significant or marked, and as being at least “very considerable” (“the narrative test”).[1]

[1]See s325(2)(b) and s325(2)(c) of the Act

10In relation to paragraph (c), the consequences of the psychiatric injury must be severe. The consequences of an injury are “severe” if, when judged by comparison with other cases in the range of possible impairments or losses, they can be fairly described as “very considerable” and certainly more than “significant” or “marked”.[2] The word “severe” has been held to mean something stronger in terms of significance or gravity than “serious”.[3]

[2] s325(2)(d) of the Act

[3]Mobilio v Balliotis [1998] 3 VR 833 [846]

11For Ms Edirisinghe to succeed in her claim for loss of earning capacity, she must establish:

(a)   Her 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, fairly described as being more than significant or marked, and as being at least very considerable or “severe” for the paragraph (c) claim (“the narrative test”); and

(b) She has a loss of earning capacity of 40 per cent or more as set out in s325(2)(f) of the Act (the “current loss of earning capacity threshold”); and

(c) After the date of the hearing, she will continue permanently to have a loss of earning capacity productive of a financial loss of 40 per cent or more as set out in s325(2)(e)(ii) of the Act (the “permanent loss of earning capacity threshold”).

Issues in Dispute

12The VWA identified the three issues in dispute:

·        Whether there is a substantial organic basis for Ms Edirisinghe’s claimed spinal impairment consequences. This was submitted to be the principal issue in contention;

·        Ms Edirisinghe’s reliability as well as the nature and extent of her impairment consequences; and

·        Whether the claimed consequences satisfied the statutory threshold.

Summary

13This was a difficult case.

14The principal issue for determination was significantly dependent upon medical evidence, much of which was unsatisfactory.

15Ultimately, I found the treating medical material from Ms Edirisinghe’s treating team, including the Pain Physician and long-term General Practitioners, to be of most assistance in my determination.

16For the reasons that follow, I find that:

·        Ms Edirisinghe’s evidence was unreliable;

·        Ms Edirisinghe has not satisfied her onus to establish that there is a substantial organic basis for her claimed spinal impairment consequences;

·        I am unable to disentangle Ms Edirisinghe’s claimed spinal impairment consequences referable to physical impairment from those referable to a psychological or non-organic response. Consequently, I am unable to determine whether the impairment consequences referable to any physical impairment of her spine are “serious”;

· In this case, I do not need to determine whether the nervous system is a body function for the purposes of the s325 definition; and

·        I find that Ms Edirisinghe has not satisfied the “severe” test under paragraph (c).

17The application must be dismissed.

Background

18The following matters of background are uncontroversial. To the extent that any are contested, these represent my findings unless otherwise stated.

19Ms Edirisinghe is a 47-year-old married woman. She has one child.

20She was born in Sri Lanka in 1977 where she completed secondary schooling and started studies in accounting. It is not clear whether she completed her accounting course.

21Approximately six months after commencing an accounting course, she started work as a sales manager with a tea company where she worked for about 10 years.

22In approximately 2009, she migrated to Australia with her husband and worked for a short period of time as a Logistics Controller for a company called High Calibre. She stopped work when she became pregnant in about 2010 or 2011.

23In 2012, she completed a Certificate III in Aged Care. She worked at Waverley Aged Care for approximately two years and then returned to Sri Lanka for 3 to 4 months as her mother was unwell.

24In 2015, Ms Edirisinghe commenced a Diploma in Early Childhood Education. She finished one year of that course but did not complete it.

25In January 2018, Ms Edirisinghe commenced working for the employer as a Direct Care worker.

The injury

26Ms Edirisinghe alleges that she sustained injury in the course of her employment on 17 March 2021 when lifting a mattress while making a bed. She also asserts that her injury was caused by the heavy and repetitive tasks she performed in the course of her employment caring for residents and undertaking home-care duties.

27In March 2021, Ms Edirisinghe submitted a WorkCover claim for an injury described as “soft tissue injury suprascapular [right and left]”.[4] The claim was accepted.

[4]Plaintiff Exhibit P16, Plaintiff’s Amended Court Book (PACB) 146-149

28Ms Edirisinghe ceased work in January 2022 and her position was made redundant in June 2022.

29Ms Edirisinghe has had conservative treatment which has included physiotherapy, chiropractic treatment and treatment from an exercise physiologist.

Ms Edirisinghe’s evidence

30Ms Edirisinghe tendered two Affidavits affirmed by her on 30 March 2023 and 4 April 2024.[5] She was the only witness who gave evidence and was cross-examined.

[5]Plaintiff Exhibit P1, PACB 6-22; PACB 28-33

Relevant pre-existing medical history

31Ms Edirisinghe said that she had attended a doctor and had physiotherapy treatment for pain in her shoulders about 8-10 years ago. There was no suggestion that she had shoulder pain around the time she started work with the employer in January 2018.[6]

[6]Plaintiff Exhibit P1, PACB 8 [9]

32I find that there was nothing relevant about her past physical medical history.

33The Affidavits are silent on any past psychiatric/psychological issues. It is noted that Dr Damodaran, on reviewing the clinical documentation provided to him, commented on a past history of emotional problems including a medication overdose in 2012 which required a hospital attendance.

34There has been no explanation as to why this episode was not referred to in the Affidavit material.

Pain

35Ms Edirisinghe gave variable evidence as to the level of her spinal pain.

36In her first Affidavit, Ms Edirisinghe stated:

“I have constant pain in my upper back, neck and shoulders. I have an aching pain in my upper back and shoulders and a pinching pain in the upper back and shoulder region. When my pain is aggravated, by repetitive movements or even simple tasks, my pain and discomfort increases and I also sometimes get a stabbing pain in the neck and my upper back.

I have pain and stiffness in my neck and both of my arms. I also get sharp pains in my shoulders in the middle of my upper back at least a couple of times a day. The sharp pains tend to come on with movement, activity or sitting or standing in the same position for prolonged periods of time.

Movement of my neck, shoulder [sic] and upper back, is restricted by my pain most of the time. I also avoid any sudden movements to try and prevent any sharp or severe pains around my neck, shoulders and upper back and/or bringing on the numbness, pins and needles in my hands.

My pain sometimes comes on unexpectedly with minor movements or when undertaking even relatively simple personal care tasks or household duties.

At night, I get pins and needles in both arms, which wakes me from my sleep and affects my quality of sleep.

The ongoing nature of my pain makes it difficult to concentrate and focus during the day.”[7]

“Due to my pain, I would tend to slouch and this would make my upper back pain worse. In order to manage this pain, my physiotherapist recommended that I use a posture corrector belt. I use this almost everyday.”[8]

[7]Plaintiff Exhibit P1, PACB 12 [28]-[33]

[8]Plaintiff Exhibit P1, PACB 14 [40]

37In her second Affidavit she stated that she continued to experience the pain and stiffness as set out in her previous Affidavit. She also said:

“I have constant ache and discomfort in my neck, in addition to severe pain which comes and goes. I think the pain in my neck area is probably worse than when I swore my previous affidavit. The pain goes into my shoulders and arms, worse on the left side. I get shooting headaches which feel like a stabbing electrical shock.

As described above, I now have intermittent head numbness which is uncomfortable and very disturbing. It is occurring more commonly. Sometimes it will happen and my whole head goes numb, and it won’t go away for 1 to 2 days.”[9]

[9]Plaintiff Exhibit P1, PACB 30-31 [21]-[22]

Medication

38In her first Affidavit, Ms Edirisinghe said that she had been taking the following medication:

·        Panadeine Forte – two tablets every 5 to 6 hours;

·        Desvenlafaxine (anti-depressant also called Pristiq) – one tablet at night;

·        Pregabalin (also called Lyrica) – one tablet every day;

·        Paracetamol/Codeine Phosphate – as necessary but that she avoided taking this drug because of side effects; and

·        Meloxicam (also called Mobic) – a non-steroidal anti-inflammatory drug which she said she was taking for depression and symptoms of inflammation.[10]

[10]Plaintiff Exhibit P1, PACB 13 [36]

39In her second Affidavit she said she took:

·        Panadeine Forte – when needed. She said she avoided taking this medication unless she really needed to due to side effects of heartburn, constipation and abdominal pain;

·        Desvenlafaxine – one tablet every day provided on prescription from Dr Du Toit (treating Sports & Exercise Physician, Interventional Pain Proceduralist);

·        Pregabalin – two tablets per day provided on prescription from Dr Du Toit. She said she was unsure whether she would continue to take this medication because of the side effects of drowsiness and dizziness; and

·        Nurofen – between 2-3 times per day. She said this was her main medication.

Treatment

40In her second Affidavit, Ms Edirisinghe said in addition to medication, her current treatment regime consisted of weekly physiotherapy, daily stretching exercises, telehealth attendances with her psychologist once or twice a month and attendances on her General Practitioner (GP), Dr Mendis.

Post injury work

41Ms Edirisinghe said that after the incident on 17 March 2021, she was off work until about 3 May 2021, when she returned on light duties two hours per day, two days per week. She gradually increased working hours to four hours per day, four days per week. During this time she was taking painkillers and attending physiotherapy.[11]

[11]Ibid, PACB 9 [14]

42Ms Edirisinghe said that between December 2021 and January 2022, the employer required her to undertake work outside of the return-to-work restrictions recommended by her GP and that during that time she experienced an increase in symptoms, including sharp pains in her upper back and worsening pain across her shoulders and neck. She also developed low back pain which radiated to the front of her left groin area and down her right leg to her toes.

43Her position was made redundant in June 2022. She has not completed any courses after the redundancy due to her restrictions and pain.

Activities of Daily Living

44Ms Edirisinghe said that she found it difficult to look after herself and perform basic activities at home. She said she had flare-ups of pain which were variable and unpredictable.

45In relation to sporting activities, she said that she now avoided sports she previously enjoyed such as badminton, netball and swimming.

46In relation to activities such as hiking, bushwalking and camping, she again said she used to undertake these activities on a regular basis but was now restricted in participating.

Household tasks

47Ms Edirisinghe said that she avoided tasks such as vacuuming, mopping and cleaning, and her involvement in cooking had reduced.

Driving

48Ms Edirisinghe said that she had to take extra care when driving due to her pain and restricted neck movements. She said that being seated in one position would increase the pain in her upper back and shoulders.

Relationships

49Ms Edirisinghe said that she felt angry and had withdrawn from her husband. The pain in her neck, shoulders and back impacted upon her sex life but no further details were provided.

Interior decoration

50In her first Affidavit she said that she was planning to start a business in interior decoration prior to the injuries but had not done so because of her injuries.

Makeup

51In her first Affidavit she said that she used to help her friends with their makeup prior to the injuries but no longer did so.

Psychological

52In her first Affidavit, under the heading “Psychological Impact”, she said that she felt angry, frustrated, moody and depressed because of her physical pain and limitations.

53In her second Affidavit, she referred to attending a psychologist and taking medication. No other details were provided in relation to psychological or psychiatric impairment consequences.

Reliability

54The issue of the plaintiff’s reliability loomed large in this application.

55The VWA submitted that Ms Edirisinghe’s credit was impugned due to the following:

·        Inconsistent evidence with respect to a gap in medical attendances upon her regular GP, Dr Mendis;

·        A lack of clarity as to when Ms Edirisinghe commenced her makeup business and the degree to which she was running a staging business; and

·        Surveillance footage which was in contrast to the incapacity sought to be conveyed in the Affidavits and which was present during medico-legal examinations.

56I have taken the VWA’s use of the word “credit” to really mean “reliability” and I have considered its submissions in that context.

Surveillance

57The VWA produced a summary of surveillance dates and times in response to a call made on behalf of Ms Edirisinghe. The summary showed that Ms Edirisinghe had been placed under surveillance for a total period of 30 hours over seven days.

58The VWA played surveillance footage totalling approximately 7 minutes, 30 seconds in Court.[12]

[12]Defendant’s Exhibit D1; Defendant’s Exhibit D2

59Separately, I watched it again for the purpose of providing these reasons.

60The following is a summary of my observations:

·        28 July 2023 - Ms Edirisinghe was seen lifting a bag (which may have been a schoolbag) into the back of a Toyota LandCruiser. She was in the presence of a schoolgirl (assumed to be her daughter). Mrs Edirisinghe then drove the schoolgirl to school;

·        1 August 2023 - Ms Edirisinghe was seen walking. She attended a residential premises where a hairdressing business was being conducted. After approximately an hour she was seen walking away from the premises wearing a shower cap on her head. She was later observed wheeling what appeared to be an empty large blue garbage bin into her property using her right hand. A few hours later she was observed wheeling what appeared to be an empty small green garbage bin into her property using her right hand.

·        11 March 2024 - Ms Edirisinghe was observed attending a food store in Clyde North with another female. After 10 minutes inside, she left the food store carrying some very light items. She was smiling and conversing with her companion. She was observed moving around in the driver’s seat of a Toyota LandCruiser. She was observed placing items into the back seat from the front seat.

·        12 March 2024 - Ms Edirisinghe was observed getting out of the rear seat of the Toyota LandCruiser in the company of two other women.

·        13 March 2024 - Ms Edirisinghe was observed getting into the rear seat of the Toyota LandCruiser in the company of two other women.

61On the face of it, the video surveillance appeared to be innocuous. It did not show Ms Edirisinghe doing anything strenuous.

62The significance of the video surveillance became apparent when contrasted with Ms Edirisinghe’s Affidavits, her presentation to the Court, and her presentation to medical examiners.

63The VWA submitted that the surveillance, albeit short, highlighted inconsistencies in Ms Edirisinghe’s claimed restrictions generally.[13]

[13]Transcript (T)165, Line (L)1-31

64Ms Edirisinghe’s Counsel were given the opportunity to comment on my observations of what appeared to be the contrast between the surveillance footage and the Affidavit material.

65It was submitted by Lead Counsel for Ms Edirisinghe that caution should be taken in placing any weight on the surveillance as the VWA had admitted that Ms Edirisinghe had been placed under surveillance for a total of 30 hours over seven days.[14] It was also suggested that the footage was not continuous and was “heavily edited”. However, it was not suggested that the surveillance had in fact been spliced or interfered with.[15]

[14]T205, L18-24

[15]T206, L1

66It was said that the surveillance footage consisted of snapshots of Ms Edirisinghe and that it showed her moving in a stiff and restricted manner.[16] I reject the latter submission. I have carefully reviewed the surveillance and I find that at no time were there any apparent displays of discomfort, such as grimacing, and there was no evidence of any restriction of movement.

[16]T207, L22-23

67It was not suggested that any unreliability was explicable by a psychiatric condition.

68Having regard to the time stamps on the surveillance footage, I accept there were edits in the surveillance footage at points. Lead Counsel for Ms Edirisinghe submitted that as the surveillance was not for a continuous period and had several breaks of a few seconds, the Court should not speculate as to what occurred during those breaks. I accept that submission.

Findings on reliability

69I have had regard to the guidance provided by the Court of Appeal in the case of Church v Echuca Regional Health[17] (Church) about the use of surveillance film to discredit a plaintiff.

[17]Church v Echuca Regional Health (2008) 20 VR 566; [2008] VSCA 153

70The surveillance has not been shown to any doctors for their commentary. In accordance with Church, I will not speculate as to whether they would or would not have altered their opinions if they were shown the surveillance.[18]

[18]Ibid at [100]

71I am mindful of what the Court of Appeal has said in cases such as Dordev v Cowan & Ors,[19] Petrovic v Victorian WorkCover Authority,[20] and most recently in Popal v Transport Accident Commission,[21] in relation to a plaintiff’s reliability in serious injury applications.

[19][2006] VSCA 254

[20][2018] VSCA 243

[21][2023] VSCA 222

72It is clear that a plaintiff’s reliability is relevant not only to the question of whether their evidence should be accepted. It is also relevant to the reliability of the medical evidence presented, because the opinions of doctors are often dependent on the credibility and reliability of the history given to them by a plaintiff.

73The critical issue here is that the surveillance footage showed a level of activity beyond what Ms Edirisinghe asserted.

74Ms Edirisinghe’s claimed restrictions of significant pain with frequent flare-ups are not borne out on the surveillance footage

75Ms Edirisinghe’s Affidavits depicted a woman whose constant spinal pain could reach excruciating levels with minimal activity. This is at odds with the surveillance footage which showed her moving in an unrestricted manner with no obvious pain.

76The short surveillance footage is in contrast to Ms Edirisinghe’s presentation to medical examiners who were unable to complete a clinical examination because of her behaviour, which included not allowing the medical examiners to touch her.

77Ms Edirisinghe impressed me as someone who was very focussed on her spinal injury and impairment. This impression was fortified by the observations and comments regarding her fear avoidance behaviour made by Dr Du Toit, Ms Rankin, Dr Horsley, Mr Drnda, Dr Yong, Ms McDevitt and Ms Gauvin, discussed below.

78I was left with the sense that parts of her evidence had been reconstructed based on the beliefs that she held, which were not borne out by the objective evidence.

79After reviewing the surveillance and Ms Edirisinghe’s evidence, and having had the opportunity to hear and see her in the court room, I find that Ms Edirisinghe was an unreliable witness for the following reasons:

·        I find that her evidence on the issue of medication was confusing. The objective evidence (which is discussed later in these reasons) of the quantity prescribed, and the frequency of the prescriptions, does not support claimed daily consumption of prescribed medication; and

·        I find that Ms Edirisinghe was prone to exaggeration and over-embellishment of her impairment consequences, as well as understating the extent of her current activities.

80The unsatisfactory aspects of Ms Edirisinghe’s evidence on matters such as her pain levels and medication use cause me to approach her evidence with some caution.

81I will look for objective medical evidence to support the asserted consequences.

The lay evidence

82Ms Edirisinghe tendered an Affidavit of her husband, Kyle Ruwan Wick, which was affirmed in Singapore on 4 April 2024.[22]

[22]Plaintiff Exhibit P2, PACB 35-37

83Mr Wick’s Affidavit generally supported his wife’s evidence.

84Mr Wick was not required for cross-examination.

85Given my findings on reliability set out above, I place little weight on the evidence of Mr Wick, despite the fact he was not cross-examined.

Radiology

86Ms Edirisinghe tendered the following radiological and investigative reports:

·        MRI scan of the Cervical Spine dated 27 May 2021 which was reported to show multilevel degenerative changes including disc bulges at C3/4, C4/5, C4/5, C5/6 and C6/7. The most marked degenerative changes were at C4/5;[23]

·        MRI scan of the Cervical Spine dated 31 January 2022 which was reported to show multi-level degenerative changes. It was reported there had been no significant interval change when compared to the MRI scan of 27 May 2021;[24]

·        MRI scan of the Thoracic Spine dated 15 March 2022 which was reported to show no significant nerve root impingement;[25]

·        CT Guided Cervical Nerve Sheath Cortisone Injection Report dated 11 April 2022 which reported that an injection had been administered adjacent to the exiting right C5 nerve root;[26]

·        Nerve Conduction Studies dated 30 June 2022 which were reported as unremarkable. There was no evidence of C8 radiculopathy or median nerve lesions;[27]

·        Ultrasound scan of the Left Shoulder dated 19 July 2022 which was reported to reveal a small to moderate sized full-thickness incomplete tear of the posterior supraspinatus tendon which measured 7mm x 6mm, mild tendinosis in the supraspinatus and severe subacromial bursitis with bursal impingement. External rotation was reported to be normal. There was no evidence of a frozen shoulder;[28] and

·        MRI scan of the Cervical Spine dated 15 December 2023. The radiographer did not have access to previous scans. This MRI scan was reported to show degenerative changes at C3/4, C4/5 and C5/6 including a disc bulge at C3/4 which caused moderate impingement on the right exiting C4 nerve root; a disc bulge at C4/5 which caused mild focal central canal stenosis, moderate left and moderate to severe neural foraminal narrowing impinging on the right exiting C5 nerve root, a disc protrusion at C5/6 which caused mild left and mild to moderate right neural foraminal narrowing abutting the exiting C6 nerve root.[29]

[23]Plaintiff Exhibit P8, PACB 91

[24]Plaintiff Exhibit P8, PACB 91-93, 100-101

[25]Plaintiff Exhibit P9, PACB 94

[26]Plaintiff Exhibit P10, PACB 95

[27]Plaintiff Exhibit P11, PACB 96-98

[28]Plaintiff Exhibit P12, PACB 99

[29]Plaintiff Exhibit P8, PACB

Ms Edirisinghe’s treating practitioners

87Ms Edirisinghe tendered a report from Dr Mendis (GP), and reports and correspondence from Dr Du Toit (treating Sports & Exercise Physician, Interventional Pain Proceduralist). She also tendered correspondence from Mr Bennett, (Neurosurgeon), Mr Eibl (Physiotherapist), Ms Rankin (Physiotherapist), as well as clinical notes from the Parkway Medical Centre covering the period 7 October 2009 – 11 September 2023.

88The VWA tendered a letter from Dr Mendis (GP) dated 21 September 2023.

Dr Roshan Mendis, GP

89Ms Edirisinghe tendered a report of Dr Mendis dated 14 February 2024.[30] Dr Mendis gave an overview of Ms Edirisinghe’s treatment and symptoms since she first consulted him on 17 March 2021. It is unclear whether Dr Mendis was discussing Ms Edirisinghe’s physical symptoms as they were at the date of his report in 2024 or when she first attended upon him.

[30]Plaintiff Exhibit P4, PACB 43-45

90Dr Mendis enclosed a list of medications he had prescribed. He prescribed Panadeine Forte in January 2024 for “abdominal pain”.[31]

[31]Plaintiff Exhibit P19. This may be misleading as the records from the Parkway Medical Centre show that Panadeine Forte was prescribed in 2023 for neck pain

91Dr Mendis opined that due to ongoing medical problems, Ms Edirisinghe’s mental condition began deteriorating in around May 2022. At that time, she presented with depressed mood, low self-esteem, mood swings, crying and social withdrawal. He prescribed Pristiq on 9 May 2022. It was his opinion that her mental condition was stable but fluctuating.

92The letter tendered by the VWA related to a request for funding of taxi transport in September 2013 and is of no relevance to the current application.[32]

[32]Defendant Exhibit D5, Defendant’s Court Book (DCB) 70

Mr Iwan Bennett, Neurosurgeon

93Mr Bennett is Ms Edirisinghe’s treating neurosurgeon. Ms Edirisinghe tendered a bundle of his letters to Dr Mendis, Dr Du Toit and Dr Faragher between February 2022 and June 2023.[33] The letters deal with Mr Bennett’s investigations into the causes of Ms Edirisinghe’s complaints and his treatment recommendations.

[33]Plaintiff Exhibit P21, PACB 161-162, 163, 165-166,167-168, 164.

94Mr Bennett could not identify a neuropathic cause for the bilateral ulnar digit numbness. He said that the MRI scan of the Cervical Spine of 31 January 2022 did not explain the complaints of ulnar digit numbness as there was no stenosis affecting the C8 nerves.

95Mr Bennett recommended that Dr Faragher conduct nerve conduction studies to ascertain whether there was ulnar neuropathy. The nerve conduction tests were carried out on 30 June 2022. Mr Benett said the results showed no evidence of ulnar or median neuropathies or evidence of C8 radiculopathy.

96Mr Bennett noted that his physical examination of Ms Edirisinghe on 8 February 2022 was unremarkable apart from some reduced sensation in the right upper limb involving the C5, C6 and C8 dermatomes.

97In February 2022, Mr Bennett opined that “at least some” of the right shoulder and interscapular pain was due to a right C5 radiculopathy. He formed this view because he considered that the MRI scan of the Cervical Spine of 31 January 2022 showed “significant compression” at C5. He recommended a C5 nerve root injection be conducted to confirm this, and also recommended an MRI scan of the thoracic spine to rule out any contributory pathology from the thoracic spine.

98Mr Bennett considered the MRI scan of the thoracic spine of 15 March 2022 was unremarkable and showed no areas of neural compression. Mr Bennett therefore ruled out the right shoulder and interscapular pain being related to the thoracic spine.

99A C5 nerve root injection was carried out on 11 April 2022. In June 2022 Mr Bennett noted that Ms Edirisinghe’s right hand numbness and shoulder pain had reduced. The pain was still present and continued to be exacerbated with activity.

100On 27 July 2022, Mr Bennett informed Dr Mendis that he considered that a significant amount of Ms Edirisinghe’s symptoms were coming from a right C5 radiculopathy. By 21 September 2022, he amended his opinion and reported to Dr Mendis that the source of Ms Edirisinghe’s widespread bilateral neck, shoulder and upper body pain was multifactorial with a component of right C5 radiculopathy which had previously responded to a right C5 nerve root injection.

101On 27 July 2022, Mr Bennett raised the prospect of surgery with Dr Mendis. Mr Bennett suggested an anterior cervical discectomy and fusion (ACDF) which may provide an improvement of right shoulder pain. It was his opinion that surgery was unlikely to improve neck stiffness. He noted that Ms Edirisinghe wished to continue with non-operative therapy. He considered that was a very reasonable approach.

102Ms Edirisinghe had asked Mr Bennett about seeing a pain specialist or undertaking a pain management program, which Mr Bennett said was an “excellent idea”.

103On 14 June 2023 Mr Bennett wrote to Dr Du Toit and said:

“As you say her predominant problem appears to be a neuropathic pain syndrome, and her right C5 radiculopathy is probably only contributing a small amount to her overall symptoms.”[34]

[34]Plaintiff’s Exhibit P21, PACB 164

104In June 2023, Mr Bennett said he would defer to the opinions of Dr Du Toit as to whether surgery was necessary and whether ketamine infusions were appropriate. He noted that Dr Du Toit’s opinion was that surgery should be deferred until Ms Edirisinghe’s neuropathic pain was under control. Mr Bennet further noted that he and Ms Edirisinghe agreed that this was the most appropriate strategy.

Mr Mark Eibl, Physiotherapist

105Ms Edirisinghe tendered two letters from her treating physiotherapist, Mr Eibl, dated 13 May 2023 and 14 November 2023, which dealt with a hydrotherapy request and hydrotherapy exercises.[35]

[35]Plaintiff Exhibit P20

106These letters are of little assistance in determining whether Ms Edirisinghe has met the serious injury test.

Mrs Joanne Rankin, Physiotherapist

107Ms Edirisinghe tendered a letter from her treating physiotherapist Ms Rankin dated 16 January 2023.[36] It is of little assistance to the Court.

[36]Plaintiff Exhibit P22, PACB 169-170

Dr Neels Du Toit, Sports & Exercise Physician, Interventional Pain Proceduralist

108Ms Edirisinghe tendered a report from her treating pain specialist, Dr Du Toit, dated 13 February 2024,[37] as well as his letters dated 16 January 2023, 20 March 2023, 31 May 2023 (two letters), 27 September 2023, 16 November 2023 and 28 February 2024.[38]

[37]Plaintiff Exhibit P3

[38]Plaintiff Exhibit P23

109Dr Du Toit’s correspondence largely reflected what was contained in his report. He noted fear avoidance behaviour at his first examination of Ms Edirisinghe in January 2023.

110The large psychological contribution to Ms Edirisinghe’s presentation described by Dr Du Toit included what he described as significant fear avoidance behaviour. He said this meant that even gentle shoulder or neck movements caused an intense pain response. On numerous occasions, Dr Du Toit recorded that his clinical examination was unremarkable but there were signs of hypersensitivity to touch, as well as allodynia where a non-painful stimulus created a pain response. Ms Edirisinghe’s range of shoulder movements was severely restricted in all ranges due to fear avoidance.

111Dr Du Toit said that nevertheless there was an organic basis for her complaints, found in the MRI scan in January 2022 which showed a small disc protrusion at the C4/5 level with the potential to encroach towards the right C5 exit foramen.

112Dr Du Toit opined on 16 January 2023 that though there may be background disc-related back pain, the neuropathic symptoms were completely overwhelming. He went on to say on 20 March 2023 that Ms Edirisinghe’s presentation was mostly due to neuropathic pain, and that her pain was beyond what could be attributed specifically to right C5 nerve compression.

113In May 2023, he recommended treatment for the organic injury in the form of a ketamine infusion to reduce centrally and peripherally mediated neuropathic pain symptoms. In November 2023, he suggested that she consider pulsed radiofrequency stimulation to the bilateral 3rd occipital nerve and C3/4 levels to reduce neck sensitivity symptoms. It does not appear that these treatment options were carried out.

114Dr Du Toit opined that as a result of her neck pain, shoulder pain and overall pain presentation, Ms Edirisinghe was severely restricted in regards to prolonged standing and walking and had no capacity to perform activities like pulling, pushing, twisting, bending and lifting, or carrying any loads. He commented that her driving capacity was limited to not more than 30 minutes and that her shoulder range of movement was severely restricted, meaning she could not perform overhead activities.

115It was his opinion that due to the restrictions, Ms Edirisinghe’s capacity for work was very limited as her symptoms were not well controlled. He hoped that Ms Edirisinghe would be able to perform alternative duties at a reduced capacity, if her symptoms improved.

116On 16 November 2023, Ms Edirisinghe reported new onset of left middle and ring finger pain. Clinical examination revealed subtle weakness in the left arm compared to the right. The rest of the neurological examination was unremarkable.

117In his report dated 13 February 2024, Dr Du Toit opined Ms Edirisinghe’s pain presentation was “multifactorial”, consisting of both organic and psychological causes. He said:

“There was MRI scan evidence of a C4/5 disc injury but I was not convinced that this specific injury is contributing to her overall pain presentation.

There is a potential organic cause for her symptoms, specifically a C4/5 cervical disc injury. She has developed overwhelming neuropathic pain centrally and peripherally mediated. In my opinion there is a large psychological contribution to her current pain presentation.”[39]

[39]Plaintiff Exhibit P3, PACB 40

Ms Edirisinghe’s medico-legal reports

Dr Gary Davison, Occupational Physician

118Ms Edirisinghe tendered a report from Dr Davison, Occupational Physician, dated 10 March 2023, which had been commissioned by the VWA.[40]

[40]Plaintiff Exhibit P1

119Ms Edirisinghe reported the followed tolerances: Sitting – 30-60 minutes, Standing – 45 minutes to 2 hours, Walking – “Okay”, Driving – up to 30 minutes in a motor vehicle fitted with automatic-transmission and power-steering, and Lifting – Able to lift a kettle of water “but with extra pain”.[41]

[41]Plaintiff Exhibit P13, PACB 106

120It was Dr Davison’s opinion that it was reasonable to accept that employment materially contributed to the injuries but there was a substantial input from psychosocial factors. He considered that Ms Edirisinghe had developed a fear-avoidance behaviour response. It was his impression that Ms Edirisinghe had developed a chronic pain syndrome.

121Dr Davison’s assessments of impairment percentages under the AMA guides do not inform the Court as to the nature and seriousness of the consequences of Ms Edirisinghe’s injuries which the Court is required to determine. I have had no regard to the percentage determinations, and have only considered the general observations and findings of Dr Davison in his capacity as an Occupational Physician.

Dr Chris Grant, Psychiatrist

122Ms Edirisinghe tendered a report of Dr Chris Grant, Psychiatrist, dated 15 June 2023, which had been commissioned by the VWA.[42]

[42]Plaintiff Exhibit P14

123Dr Grant opined that Ms Edirisinghe appeared to have a chronic pain disorder, complicated by a mild chronic adjustment disorder with mixed emotional features. He noted that on examination there were no overt pain behaviours but her thinking was pain focused and she frequently referred to herself as having neuropathy, but she did not describe any clear radicular pain.

124Dr Grant opined Ms Edirisinghe had no current capacity for pre-injury duties nor capacity for modified duties because of her pain disorder. She had no current work capacity or capacity for suitable employment until better pain control (as opposed to mood treatment) was achieved.

125Dr Grant recommended ongoing multidisciplinary pain management and trialling a higher dose of Desvenlafaxine. He was doubtful that Pregabalin would much benefit her, and doubted psychology sessions would be of much value.

Dr Clayton Thomas, Pain Specialist

126Ms Edirisinghe tendered a report from Dr Clayton Thomas dated 3 July 2023 which had been commissioned by the VWA,[43] together with a letter of instruction from Allianz Australia Workers Compensation to Dr Thomas dated 1 June 2023.[44]

[43]Plaintiff Exhibit P15

[44]Plaintiff Exhibit P24

127Dr Thomas noted that Ms Edirisinghe appeared quite anxious and fear avoidant. He diagnosed major chronic pain syndrome with significant central sensitisation which he said represented a nociplastic pain syndrome. He considered that the previous diagnosis of right C5 radiculopathy had fully resolved, as the clinical signs and symptoms were not consistent with such a condition.

128Dr Thomas opined that Ms Edirisinghe could not return to preinjury duties or hours, or modified or alternative duties or hours. He considered that she did not have a current capacity for suitable employment.

129Dr Thomas was provided with a vocational planning report from Workable dated 24 February 2022.[45] He opined that while the positions listed were appropriate and reasonable for her given her previous work experience, overall her level of function precluded her ability to return to those options.

[45]Defendant Exhibit D7

Mr Craig Mills, Orthopaedic Surgeon

130Ms Edirisinghe tendered a report from Mr Craig Mills, Orthopaedic Surgeon, dated 22 January 2024.[46] Mr Mills diagnosed multilevel cervical spine degeneration which he considered had been aggravated by lifting in the workplace. On clinical examination there were no signs of neurological loss despite the reports of sensory changes in the hands.

[46]Plaintiff Exhibit P5

131It was his opinion that all of Ms Edirisinghe’s complaints were attributable to an organic spine injury consistent with the radiology. He reviewed the MRI scan reports of 27 May 2021, 31 January 2022 and August 2022. He was not provided with the MRI scan report of 15 December 2023.

132Mr Mills opined that Ms Edirisinghe’s symptoms and incapacity was likely to continue for the foreseeable future, barring surgical treatment. He thought that surgery might be a reasonable option but would defer to the opinion of a neurosurgeon or cervical spine surgeon on this point.

Dr Robyn Horsley, Occupational Physician

133Ms Edirisinghe tendered a report of Dr Robyn Horsley, dated 8 February 2024.[47]

[47]Plaintiff Exhibit P6

134Dr Horsley was told, inter alia, that Ms Edirisinghe’s level of left shoulder discomfort was chronic and varied on the visual analogue scale from “6 to 8 out of 10”.[48] The discomfort varied depending on her level of activity, and it could flare spontaneously. Activities such as repetitive over reaching, pushing, pulling or repetitive use of her left arm, aggravated her left shoulder. She would wake with pain on the left side. The discomfort was located in the left shoulder girdle, left trapezius, into the axilla, anterior chest wall and particularly into the left scapula. She stated that she was very hypersensitive; no one could touch her shoulder girdle.

[48]Plaintiff Exhibit P6, PACB 61

135In relation to the right shoulder, Dr Horsley was told that light touch was unbearable. She had chronic right shoulder pain which was assessed at “7 to 9 out of 10”.[49] The right shoulder pain was located in a similar area to the left shoulder discomfort. There was also extreme hypersensitivity.

[49]Plaintiff Exhibit P6, PACB 62

136Ms Edirisinghe said her neck pain was intermittent but could reach “8 to 10 out of 10”,[50] if someone touched her neck or if she moved it. She had no neck pain when her neck was in a neutral position or when she was resting.

[50]Plaintiff Exhibit P6, PACB 62

137Ms Edirisinghe reported she had experienced two to three episodes when she had gone to hospital with whole scalp numbness on cervical extension.

138Ms Edirisinghe also told Dr Horsley that she wore a crop top, not a bra, because of the hypersensitivity and an inability to do up and undo a bra.

139Ms Edirisinghe complained of an altered sensation in the fourth and fifth fingers in her left hand, discomfort and hypersensitivity in the mid-thoracic area. She said that she had started experiencing headaches a few weeks before the examination which felt like electric shocks and were located over the left temple and radiated down the left side of her neck. She rated the headaches at “8 to 10 out of 10”.[51]

[51]Plaintiff Exhibit P6, PACB 62

140Dr Horsley was told that cold weather exacerbated Ms Edirisinghe’s general symptoms.

141Dr Horsley recorded the following tolerances:

·        Sitting “with pain” – 45-60 minutes;

·        Static standing tolerance “with pain” – one and a half hours;

·        Walking tolerance “with pain” – one to two hours;

·        Dynamic standing tolerance “with pain” – one to two hours; and

·        Driving tolerance “with pain” –30-60 minutes.

142Dr Horsley considered these functional tolerances to be “normal” albeit with pain.[52]

[52]See: Plaintiff Exhibit P6, PACB 66

143Dr Horsley was unable to complete a full clinical examination, as any attempt at palpation was met with a complaint that it caused “really bad pain”.[53] Dr Horsley noted limitations in cervical extension and flexion and an active reduction in range of motion in the left shoulder.

[53]Plaintiff Exhibit P6, PACB 62

144According to Dr Horsley, there was considerable fear avoidance behaviour when asked to do Apley’s scratch test. Ms Edirisinghe stated that there was “considerable under arm pain”.[54] With a lot of sighing, she abducted her arms to 90° and elevated her hands tentatively to the back of her scalp. Apley’s scratch test was within normal limits, posteriorly bilaterally.

[54]Plaintiff Exhibit P6, PACB 62

145Dr Horsley was unable to undertake any of the other shoulder tests including the test for supraspinatus, the biceps test, the teres minor/subscapularis test, or the AC joint test, because of the lack of effort displayed when testing power. Given this, Dr Horsley commented that objective assessment was not possible.

146Further, when Dr Horsley tried to perform Jamar testing, Ms Edirisinghe was not able to register on the left and registered only 1-2 kilograms force on the right. When using the pincher gauge, which measured power between the index finger and thumb, she barely registered on the left and had 1-2 kilograms on the right.

147Dr Horsley diagnosed global upper body hypersensitivity and considerable fear avoidance behaviour. She considered that Ms Edirisinghe had developed a chronic pain syndrome with significant neuropathic elements.

148Dr Horsley considered that the symptoms were likely to persist, given the length of time since the injury and the ongoing nature of the symptoms. She considered that Ms Edirisinghe would benefit from a psychiatric assessment and ongoing psychiatric input.

149Dr Horsley said she would rely upon on psychiatric opinions as to the impact of Ms Edirisinghe’s mental health on her overall presentation.

150Dr Horsley opined that Ms Edirisinghe presented with a major chronic pain syndrome, overwhelming hypersensitivity and fear avoidant behaviour. She had normal functional tolerance with pain.

151On the question of work capacity, Dr Horsley considered the Vocational Assessment Reports from Workable Consulting dated 24 February 2022,[55] and CoWork dated 1 November 2023.[56]

[55]Defendant Exhibit D7

[56]Defendant Exhibit D6

152It was Dr Horsley’s opinion that Ms Edirisinghe presented with no realistic capacity for pre-injury employment and no capacity for suitable employment, on the basis of her chronic pain disorder. Her opinion was subject to the caveats that Dr Horsley was unable to fully examine Ms Edirisinghe, that there were inconsistencies upon examination and that Ms Edirisinghe was particularly fear avoidant.

Dr Saji Damodaran, Psychiatrist

153Ms Edirisinghe tendered a report of Dr Saji Damodaran, dated 27 March 2024, who examined her via Zoom on 20 March 2024.[57]

[57]Plaintiff Exhibit P7

154Dr Damodaran noted that Ms Edirisinghe denied any past history of “mental illness, any alcohol or any psychoactive substance abuse”.[58]

[58]Plaintiff Exhibit P7, PACB 76

155Dr Damodaran referred to the clinical documentation which contained a “history of emotional difficulties and certain emotional vulnerabilities in the past”.[59] In particular, the documentation referred to an episode in 2012 where Ms Edirisinghe was rushed to hospital after taking an overdose of Temazepam. He ultimately opined that those issues were “situation specific” and part of understandable distress, including being a new mother who had recently migrated to Australia. He noted the episode had not led to a diagnosable condition. He said that Ms Edirisinghe had readjusted and was functioning quite well prior to the subject injury.[60] Dr Damodaran did not explain how he reached such an opinion.[61] There is nothing in his report to suggest that he discussed any of this with Ms Edirisinghe.

[59]Plaintiff Exhibit P7, PACB 81

[60]Plaintiff Exhibit P7, PACB 81

[61]Plaintiff Exhibit P7, PACB 81

156Dr Damodaran diagnosed a chronic adjustment disorder with mixed anxiety and depressed mood which he considered was of moderate severity. He also referred to a chronic pain disorder which he associated with her general medical condition and possible psychological factors.[62]

[62]Plaintiff Exhibit P7, PACB 81

157Dr Damodaran opined Ms Edirisinghe’s chronic adjustment disorder with mixed anxiety and depressed mood developed as a consequence of the pain and limitation she was experiencing due to the workplace injury.

158Dr Damodaran noted that Ms Edirisinghe was consumed by persistent depression, anxiety and a sense of vulnerability and a deep-seated sense of grief. It was his opinion that her situation was further complicated by the “sensory invalidation” she had experienced through various medical interventions. He did not explain what he meant by “sensory invalidation”.

159Dr Damodaran noted that despite being provided with a medical explanation, Ms Edirisinghe remained quite debilitated and very disaffected by the pain which caused significant social, recreational and occupational impairments. It was his opinion that Ms Edirisinghe had a very guarded prognosis. It was his view that it was important that Ms Edirisinghe be referred to a psychiatrist for the effective management of her depression along with pain management.

160With regards to prognosis, Dr Damodaran opined that her pain disorder was not likely to improve. There was a high likelihood that her psychiatric condition was permanent and likely to continue into the reasonably foreseeable future.

161It was his opinion that Ms Edirisinghe had no current work capacity from a psychiatric point of view, due to the “persistent limitation due to pain, phobic avoidance, depression, anxiety that she is experiencing.”[63]

[63]Plaintiff Exhibit P7, PACB 84

162Dr Damodaran emphasised that treatment should focus on “functional recovery rather than symptom eradication.”[64] He considered it was important to acknowledge the cultural context when understanding the development of the adjustment disorder. He noted the plaintiff was someone who had worked hard to establish a home in Australia and that the workplace injury reactivated a sense of insecurity regarding her ability to support herself and her family, causing a further sense of grief and loss. He thereby considered that a focus on an acceptance commitment model of intervention was something which may assist in enhancing her sense of confidence.

[64]Plaintiff Exhibit P7, PACB 86

VWA’s medico-legal reports

Mr Armin Drnda, Neurosurgeon

163The VWA tendered a report from Mr Drnda dated 8 November 2022.[65]

[65]Defendant Exhibit D3

164Mr Drnda was told by Ms Edirisinghe that she had pain in the back of the neck, pain in both shoulders, much more in the left than the right. He was told that the left shoulder pain had intensified 6 to 8 months prior to the examination. Ms Edirisinghe also complained of pain in the upper back and intermittent pain in the fourth and fifth fingers of the left hand.

165While moving, Mr Drnda noted some stiffness in her lower back, which Ms Edirisinghe said was related to vigorous massage by her physiotherapist. Clinical examinations of the neck and right shoulder were normal but there were complaints of discomfort. Left shoulder movements were limited in all directions due to pain. She was quite tender over the glenohumeral and acromioclavicular joints on the left side and there was some tenderness over the left thoracic outlet. In the upper limbs, there were no signs of muscle wasting. She had full strength in all muscle groups on all four limbs. All reflexes were present and normal. Hoffmann’s sign was negative. Babinski’s sign was negative. There were no sensory changes. Tinel’s sign was negative over both cubital canals and carpal tunnels. Phalen’s sign was also negative

166Mr Drnda considered that during the examination, Ms Edirisinghe exhibited fear avoidance. He noted that there were no muscular spasms in her neck, upper back or around the shoulder blades. Waddell’s sign was positive for light touch causing very significant pain.

167Mr Drnda was provided with the Cervical Spine MRIs dated 27 May 2021 and 31 January 2022, the MRI of the Thoracic Spine dated 15 March 2022 and the Left Shoulder Ultrasound dated 19 July 2022. The 15 December 2023 MRI Cervical Spine post-dated this report.

168Mr Drnda ultimately opined Ms Edirisinghe had no impairment stemming from her neck and right shoulder. He said an orthopaedic surgeon should be asked to comment on the left shoulder. It was his opinion that there was no diagnosable condition of the neck and that the previously diagnosed right C5 radiculopathy had resolved. He accepted that Ms Edirisinghe had previously suffered an aggravation of the cervical spondylosis with right C5 radicular pain. Mr Drnda accepted that Ms Edirisinghe had a dysfunctional left shoulder. He said that further comments would be outside of his field of expertise.

169It was his opinion that Ms Edirisinghe presented with mild functional overlay and that she had exaggerated her left shoulder symptoms.

170He considered the prognosis to be good and said that Ms Edirisinghe should maintain an exercise program and avoid awkward postures and strenuous activities.

171In relation to work capacity, Mr Drnda opined that from the cervical spine perspective, Ms Edirisinghe had capacity for pre-injury employment with restrictions, and possibly further restrictions would be required for her left shoulder but deferred to an orthopaedic surgeon on that issue.

172Mr Drnda was asked to consider the vocational reports including a Vocational Planning Report dated 24 February 2022; Return to Work Initial Report dated 29 October 2021; an Action Plan dated 20 January 2022 and Return to Work Arrangements dated 16 August 2021, 4 October 2021, 29 October 2021, 1 November 2021 and 15 December 2021. It was his opinion that each of the jobs listed in the vocational reports were appropriate for Ms Edirisinghe, and she should not have any problem performing those.

Dr Dominic Yong ,Occupational Physician,

173The VWA tendered two reports from Dr Dominic Yong, dated 12 October 2023 and 8 November 2023.[66]

[66]Defendant Exhibit D4

174Dr Yong’s first report dealt with an examination which took place on 12 October 2023. His second report commented on the CoWork Vocational Assessment and Labour Market Analysis Report dated 1 November 2023.

175Ms Edirisinghe complained of pain in the neck posteriorly, which radiated to both sides and into both shoulders, both shoulder blades, and the inner aspect of both upper arms. The pain also radiated into the front of her upper chest and the upper back in the form of a stabbing-type pain. Ms Edirisinghe also reported tingling in both fourth and fifth fingers at night.

176Ms Edirisinghe told Dr Yong that she had been able to attend hair salons to get her hair washed, cut and coloured. However, Ms Edirisinghe said about 6 months prior to his examination, there was an incident when she went to a salon to have her hair coloured and when she put her head back in the sink to have it washed, she experienced head and facial numbness. An ambulance was called and she attended the Frankston Hospital Emergency Department. She said she was assessed, had scans of her head and she was told this did not reveal any significant abnormalities. She said that the symptoms resolved over the course of that day.

177Dr Yong was provided with the Cervical Spine MRIs dated 27 May 2021 and 31 January 2022, the MRI of the Thoracic Spine dated 15 March 2022 and the Left Shoulder Ultrasound dated 19 July 2022. The 15 December 2023 MRI Cervical Spine post-dated this report.

178On clinical examination, Dr Yong observed there was superficial tenderness to palpation over the neck posteriorly, both sides and the upper cervical region, as well as the upper back, both shoulder blades and both shoulders superiorly and laterally, in addition to both inner arms. There was superficial tenderness in her upper chest just below both clavicles. Neurological examination of the arms revealed reduced sensation to light touch over the left middle finger on the palmar aspect and the volar aspect of the left forearm. The biceps, triceps and brachioradialis reflexes were normal. The tone in both arms was normal and symmetrical. There was reduced power in both upper limbs for pincer grip, interossei strength, thumb abduction, and wrist, elbow and shoulder movements. Straight leg raise was 40° bilaterally, which reproduced shoulder blade pain. Axial loading test was negative. Examination of both shoulders noted no asymmetry. The range of motion of the shoulders was symmetrical with 90° abduction, 20° adduction, 90° flexion, 20° extension, 60° external rotation and 20° internal rotation. Power was reduced.

179Dr Yong opined Ms Edirisinghe had sustained a cervical spine soft tissue injury with radicular symptoms, without any evidence of a cervical spine radiculopathy or a neuro-compressive condition. There appeared to be pain radiating to a widespread area involving the shoulders, upper back, both inner arms and anterior superior chest. He noted some pain avoidance behaviour.

180Regarding the upper back, Dr Yong opined the pain was likely radiating from the cervical spine condition. There were no features suggestive of a current intrinsic medical condition of the thoracic spine.

181Similarly, Dr Yong opined the pain from the shoulders was likely radiating from the cervical spine, rather than being a specific shoulder condition.

182Dr Yong considered that Dr Thomas’ diagnosis of chronic pain syndrome with significant central sensitisation was consistent with his own findings, as was Dr Du Toit’s finding of overwhelming neuropathic pain, fear-avoidance behaviour, hypersensitivity and allodynia.

183Dr Yong opined Ms Edirisinghe’s psychological comorbidity should be addressed by a psychiatrist. It was his opinion that there was evidence of functional overlay consistent with chronic pain syndrome with some pain avoidance behaviour.

184Dr Yong’s considered her prognosis was guarded, noting the nature of Ms Edirisinghe’s neck condition, the period of time since onset, and the treatment taken so far and her responses to it. He recommended a graduated activity-based recovery program which avoided aggravating factors, and entailed a range of “active physical therapy modalities” involving the patient using her own musculature to complete therapy, via home-based exercise programs, swimming sessions and walking programs.[67] He recommended Ms Edirisinghe continue with her multidisciplinary pain management program, daily walking program, regular home-based exercise program, independent exercise in a gym or swimming pool, returning to doing more domestic tasks at home, and being as active as possible within the limits of her pain.

[67]Defendant Exhibit D4, DCB 49

185Dr Yong opined that taking into account Ms Edirisinghe’s physical condition only, whilst ignoring any psychological comorbidities, she had capacity for tasks within the following restrictions:

·        Avoid repetitive neck movements;

·        Avoid repeated awkward neck postures;

·        Avoid repeated firm pushing and pulling tasks;

·        Avoid lifting more than 3kg on a repeated basis; and

186Dr Yong said that Ms Edirisinghe had no capacity for pre-injury employment but was capable of working in the following jobs set out in the Workable Consulting Transferrable Skills Analysis Report dated 24 February 2022:

·        Conference and Event Organiser, Purchasing Officer, Customer Service Representative and Real Estate (Trainee), if they were to commence on a graduated return to work basis working up to 20 hours per week, with a further assessment of whether she could increase her working hours beyond this; and

·        Sales Representative – Freight and Logistics. Dr Yong commented that whilst minimal manual handling was described in this role, it did describe having to drive frequently which might exceed Ms Edirisinghe’s functional tolerances. Dr Yong therefore considered this role required individual assessment.

187In his second report dated 8 November 2023, Dr Yong commented on the suitability of the roles set out in the CoWork Vocational Assessment and Labour Market Analysis Report dated 1 November 2023:

·        School Crossing Supervisor (Transitional) – this role was suitable as it required minimal manual handling. Dr Yong recommended that Ms Edirisinghe commence on 2-hour shifts 2 days a week, before gradually increasing towards 20 hours per week over a 3-4 month period, with a re-assessment before progressing beyond 20 hours per week;

·        Retail Sales Assistant – Beauty and Makeup or Furniture – Dr Yong opined these roles would be unsuitable;

·        Real Estate Agent – Dr Yong considered this role in his previous report and his opinion was unchanged;

·        Property Stylist (Interior Designer) – Dr Yong noted minimal manual handling was described in this role and it was therefore likely to comply with restrictions and constitute suitable employment.

·        Despatch and Receiving Clerk – Dr Yong considered this role in light of a Worksite Assessment and Task Analysis at the Despatch Department at ACMI and found the role was likely to comply with the restrictions and would therefore be suitable.

188Ms Edirisinghe told Dr Yong about her makeup and home-staging businesses which she had started in 2020 and ceased after March 2021. She said that she had started doing makeup for weddings and events in approximately 2020, after obtaining a diploma in makeup. She said she had a maximum of two clients per weekend and each would take between 1-2 hours. She said they would come to her home and she would apply their makeup whilst they sat in a chair but she had ceased such activities. She also told Dr Yong she and her husband had started a home-staging business, where they would arrange for contractors to bring in furniture and she would do the interior decorating such as setting up vases, pictures and other items. Ms Edirisinghe reported to Dr Yong she had again ceased doing this.

VWA vocational material

189The VWA tendered material from Work Able Consulting, Unlimit-ed Australia Pty Ltd and CoWork. Given my ultimate findings on the issues of whether there is a substantial organic basis and on the paragraph (c) claim, it is not necessary for me to make any formal findings regarding capacity.

190A number of the attendances on the assessors was impacted by Ms Edirisinghe’s presentation, as set out in the following summary.

Unlimit-ed Australia Pty Ltd

191The VWA tendered a Functional Education Session and Assistive Equipment Trial (Occupational Therapy) Report prepared by Unlimit-ed Australia Pty Ltd dated 30 January 2023.[68] Ms Edirisinghe was assessed by Meghan McDevitt, Occupational Therapist, on 30 January 2023.

[68]Defendant Exhibit D8

192The aim of functional education sessions was stated to be to encourage injured workers to overcome impairment by learning alternative ways of completing everyday activities. The workers are taught alternative techniques, movements and postures to compensate for a physical impairment, and trained in the use of adaptive aids and appliances.

193The objectives of a functional education session included modification of maladaptive pain beliefs and behaviour through education, trial of assistive equipment to enable independence in household cleaning tasks, and improvement of physical function in domestic activities through graded activity training and use of pacing techniques.

194Ms McDevitt recorded that whilst Ms Edirisinghe had initially reported her willingness to participate in the session, Ms Edirisinghe was unwilling to fully engage and trial the recommended assistive equipment, pacing and postural techniques. She presented with concrete beliefs related to her functional capacity and remained fearful of activity engagement, despite acknowledging the benefits of the assistive equipment and techniques discussed and demonstrated during the trial.

195The session ceased at Ms Edirisinghe’s request.

CoWork

196The VWA tendered a CoWork Vocational Assessment Report and Attachments dated 1 November 2023, prepared by Ms Ira Gauvin, Occupational Therapist.[69] Ms Gauvin assessed Ms Edirisinghe on 5 October 2023.

[69]Defendant Exhibit D6

197Ms Gauvin noted that Ms Edirisinghe’s presentation demonstrated a high degree of fear avoidance behaviour, a degree of disability focus and use of deficit-based language (such as saying “I can’t” or “it’s hard”).

Ms Edirisinghe’s submissions

198Ms Gold submitted the relevant impairment of body function was either:

·        The Spine; or

·        The nervous system.

199In relation to the spine, Ms Gold submitted there was an injury to the spine that was substantially organically based, and the Court did not need to land on a particular diagnosis for it.[70] Ms Gold alternatively submitted Ms Edirisinghe relied on aggravation of cervical spondylosis.[71]

[70]T214, L9-14; T215, L4-11. See surrounding discussion and also T218, L11-14

[71]T217, L7-8

200It was submitted that Mr Bennett and Dr Du Toit opined that a neuropathic pain syndrome was the predominant problem and that a neuropathic chronic pain condition as a physical condition was probably supported by the thrust of the evidence.[72] It was put that the neuropathic pain disorder involved the nervous system as a body function.

[72]T2, L16-19

201Ms Gold referred to Her Honour Judge Tran’s decision in Shrimpton v Victorian WorkCover Authority (Shrimpton)[73] and the Court of Appeal decision Lexa v Transport Accident Commission (Lexa).[74]

[73][2024] VCC 245

[74][2019] VSCA 123

202Regarding loss of earning capacity, Ms Edirisinghe relied on Dr Du Toit’s opinion that Ms Edirisinghe’s work capacity in the foreseeable future was very limited but that there was some potential for improvement. Ms Edirisinghe made this submission notwithstanding that Dr Du Toit did not have any of the vocational material before him.[75]

[75]T244

The VWA’s case

203The VWA submitted as there was no substantial organic basis for the plaintiff’s paragraph (a) injury, the Court did not have to engage in the second question of the Meadows v Lichmore analysis, and consequently the Court did not need to disentangle.[76] This appears to be a misstatement of the law.

[76]T176, L19-25

204The VWA further submitted that whether or not disentangling was required, Ms Edirisinghe did not meet the narrative threshold.[77] It was said that there was much that Ms Edirisinghe had retained and that, with reference to the indicia in Haden Engineering Pty Ltd v McKinnon,[78] Ms Edirisinghe’s medication regime was “modest at best”.

[77]T171, L19-22

[78][2010] VSCA 69

205In relation to loss of earning capacity consequences, the VWA relied on the jobs set out in the Vocational Assessment Reports and the jobs assessed and approved by Dr Yong.

Is there a substantial organic basis for Ms Edirisinghe’s claimed spinal impairment consequences?

206As Ms Edirisinghe’s application under sub-paragraph (a) relates to the pain and suffering consequences of a physical injury, I must exclude the psychological or non-organically-based pain and suffering consequences of that injury.

207In Meadows v Lichmore Pty Ltd,[79] Maxwell ACJ approved a two-step approach to disentangle physical and psychological injuries.

[79][2013] VSCA 201, [21]-[22]

208The first step is to ask if there is a substantial organic basis for the injury relied upon. If there is a substantial organic basis, then the question is whether the consequences from that injury satisfy the relevant test.

209The second step arises if the Court cannot be satisfied that there is a substantial organic basis. Should that occur, then the question of disentangling must be addressed.

210As to the first step, there was no issue between the parties that initially Ms Edirisinghe had an organic injury to her spine in March 2021. The issue is whether there is now, over three years later, a substantial organic basis for Ms Edirisinghe’s claimed impairment consequences. That issue falls to be resolved by my conclusions as to the medical evidence.

211The opinions of the treating doctors are variable. The treating team have struggled to explain her recent complaints and presentation and whether they remain organically based.

212Mrs Joanne Rankin (treating Pain Physiotherapist and Rehabilitation Coordinator) acknowledged a psychological component, in that she advised Ms Edirisinghe against being fearful of making her condition worse and encouraged her to continue in an exercise programme.

213Mr Iwan Bennett (treating Neurosurgeon) reported to Dr Mendis on 21 September 2022 that the source of her widespread bilateral neck, shoulder and upper body pain was multifactorial. He accepted that there was a component of right C5 radiculopathy. He ruled out any contributory pathology from the spine to the right shoulder and interscapular pain. He could find no ulnar or median neuropathies or any C8 radiculopathy to explain the ulnar digit numbness. No report from Mr Bennett has been produced. His opinion on whether there continues to be an organic basis for Ms Edirisinghe’s complaints is unknown.

214Dr Du Toit considered Ms Edirisinghe’s pain presentation was multifactorial, consisting of both organic and psychological causes. He diagnosed overwhelming neuropathic pain which was centrally and peripherally mediated. He was not convinced that the original C4/5 disc injury was contributing to her overall pain presentation.

215Dr Roshan Mendis opined that there was radiculopathy especially at C4/5 and a full thickness tear of the supraspinatus tendon with severe subacromial bursitis. It appears that he relied upon the radiology to form this opinion.

216The medico-legal experts opined as follows:

·        Dr Gary Davison (Occupational Physician) did not provide a diagnosis. He said Ms Edirisinghe has chronic neck pain and non-verifiable radiculopathy symptoms. He acknowledged it was clear from the MRIs that there was pre-existing degenerative change at C4/5. He opined the precise cause of the intermittent, centrally located mid-back pain was not evident and a precise diagnosis was not possible. Similarly, the lower back pain symptoms were non-specific without evidence of radiculopathy. He suspected a chronic pain syndrome had developed, on the basis that Ms Edirisinghe’s soft tissue injury should have resolved but had not, despite extensive treatment. He did not specify whether this pain syndrome was organic or non-organic;

·        Dr Clayton Thomas (Pain Specialist) found that the previous right C5 radiculopathy has resolved. In that context, he diagnosed major chronic pain syndrome with significant central sensitisation, representing a nociplastic chronic pain syndrome. He noted she was quite anxious and fear avoidant. Whilst he does not specifically state it, it appears that he considered that there was an ongoing organic basis for Ms Edirisinghe’s complaints;

·        Dr Craig Mills (Orthopaedic Surgeon) opined Ms Edirisinghe’s complaints were all attributable to her organic spine injury. He diagnosed Ms Edirisinghe with “multilevel cervical spine degeneration which has been aggravated by lifting in the workplace but no clinical marked neurological loss but has reports of sensory change in hands. The claimant has been treated with a variety of modalities and has been resistant to treatment”.[80] He was unable to explain the sensory change in the hands. He opined her “current symptoms and dysfunction result from her cervical spine disc disease as this matches her complaint and the radiology is consistent with her complaint”;[81]

·        Dr Robyn Horsley (Occupational Physician) reported there was global upper body hypersensitivity and considerable fear avoidance behaviour. She reported the plaintiff had developed a chronic pain syndrome with significant neuropathic elements. Dr Horsley also reported a Beck Depression Inventory gave a score of 32, suggestive of severe depression with no suicidal ideation, and a Beck Anxiety Inventory gave a score of 34, suggestive of severe anxiety. Dr Horsley’s opinion as to whether there is an ongoing substantial organic basis is not clear. It seems that she was suggesting that the presentation is multi-factorial;

·        Mr Armin Drnda (Neurosurgeon) found there was mild functional overlay, and that Ms Edirisinghe had exaggerated her left shoulder symptoms; and

·        Dr Dominic Yong (Specialist Occupational Physician) said that Dr Thomas’ diagnosis and Dr Du Toit’s clinical findings were consistent with his findings.

[80]Plaintiff’s Exhibit P5, PACB 53-54

[81]Plaintiff’s Exhibit P5, PACB 54

217The diagnosis of “neuropathic pain” and whether there was an organic basis were largely predicated upon Ms Edirisinghe’s complaints of pain, as well as her self-assessment of the constancy and intensity of the pain. This was particularly so for Dr Du Toit and Dr Horsley. Both of these doctors were unable to successfully complete clinical examinations.

218Dr Du Toit and Dr Mills effectively said that the MRI of January 2022 was the evidence they relied upon to support their opinion that there was an organic basis for Ms Edirisinghe’s complaints.

219It is important that the relevance of radiology is not overstated. In Dordev v Cowan & Ors,[82] Chernov JA said the fact that there is pathology (in this case radiology) does not, of itself, establish consequences of any particular degree of gravity or a specific source. It was noted that doctors had to depend on the accuracy of histories provided to them by their patient as to the true level of disability. His Honour therefore reasoned that medical opinion based on accounts by a witness as to their symptoms may have little or no probative weight where a Court has determined that the witness was not reliable.

[82][2006] VSCA 254, [19]

220I cannot be satisfied that there is an ongoing substantial organic basis either from a disc injury or some form of neurological/neuropathic condition for the claimed injury.

Disentanglement

221Having determined that I am unable to answer the first question in the affirmative, I must consider whether I am able to disentangle the claimed spinal impairment consequences referable to physical impairment from those referable to a psychological or non-organic condition.

222There are conflicting medical opinions as to the current diagnosis and the cause and extent of Ms Edirisinghe’s impairment consequences.

223The medical evidence does not enable me to disentangle the claimed impairment consequences referable to physical impairment from those referable to a psychological or non-organic response.

224Given that I am unable to determine which of Ms Edirisinghe’s claimed impairment consequences are referable to her physical impairment, I cannot assess whether they satisfy the statutory threshold.

Is the nervous system a body function under s325?

225The Court of Appeal in Lexa referred to the distinction between a physical act or operation (involving a part or some closely connected parts of the body) and an “activity” to which the physical act or operation may be applied.[83] The Court of Appeal found that bilateral shoulder injuries did not give rise to the loss of a single body function.

[83]Ibid at [46]

226Shrimpton dealt with the question of whether an impairment of the immune system was an impairment of a body function in the context of the plaintiff having long-COVID syndrome.

227Neither of these cases dealt with the nervous system.

228There is currently no authority supporting the proposition that the “nervous system” is a body function.[84]

[84]T222, 17-23

229Given my finding that there is no organic basis for Mrs Edirisinghe’s condition, there is no need to determine whether the nervous system itself constitutes a body function for the purposes of this application.

The psychiatric claim

230I will now consider the alternative claim under paragraph (c). The paragraph (c) injury relied upon was described to be a psychiatrically-driven chronic pain disorder or a chronic adjustment disorder and depressed mood.

231Consistent with my earlier finding that Ms Edirisinghe has not provided medical evidence which enables me to disentangle the claimed impairment consequences referable to physical impairment from those referable to a psychological or non-organic response, there is insufficient evidence to establish whether there is a psychiatrically-based chronic pain syndrome.

232Ms Edirisinghe’s claimed psychological impairment consequences are set out earlier in these reasons. She described feelings but no actual consequences.

233Ms Edirisinghe has been attending a psychologist, Ms Amin, for telehealth appointments once or twice a month. It is not clear when the sessions commenced as no material was tendered from Ms Amin. Ms Edirisinghe is taking an anti-depressant daily which is prescribed by Dr Du Toit.

234The only evidence about Ms Edirisinghe’s psychiatric state is found in the medico-legal reports of Dr Chris Grant (Psychiatrist) and Dr Saji Damodaran (Consultant Psychiatrist) which have been summarised earlier in these reasons.

235Both Dr Grant and Dr Damodaran diagnosed a chronic adjustment disorder. Dr Grant considered the adjustment disorder as mild and Dr Damodaran considered it was of moderate severity. Both doctors referred to a pain disorder. Dr Grant did not say whether the pain disorder was psychiatrically based. Dr Damodaran said that the pain disorder was associated with Ms Edirisinghe’s general medical condition and possible psychological factors. He did not say whether the pain disorder was psychiatrically based or organically based.

236As such, the medical evidence does not establish a psychiatrically-based pain disorder.

237In so far as both doctors found there was a chronic adjustment disorder, neither opinion would support the proposition that the adjustment disorder of itself, although chronic, was severe.

238Dr Damodaran was the only doctor who referred to earlier psychiatric/‌psychological issues. He did not provide a path of reasoning as to why he formed the view that the past psychiatric issues were “situational” or the basis of his comments regarding her sense of insecurity. He appeared to adopt an advocate’s role when he provided these opinions. The adoption of this role has caused me to consider his conclusions with a degree of caution.

239I am required to consider the range of impairments and impairment consequences overall and not just those that come before the Court.

240In considering whether Ms Edirisinghe has satisfied the “severe” test I have taken the following factors into account:

·        What Ms Edirisinghe says about the psychiatric/psychological impairment consequences; and

·        What she does about such consequences.

241The reality is Ms Edirisinghe says very little about any psychiatric/psychological impairment consequences. She does not say that she was particularly affected by depressive or anxious symptoms.

242The extent of treatment is one factor which may be taken into account in determining the level of severity of a psychiatric condition. Treatment, or lack of it, is not of itself determinative of the question.[85]

[85]Transport Accident Commission v Katanas [2017] HCA 32 at [18] where discussing the reasoning of the Court of Appeal.

243In this case, Ms Edirisinghe’s treatment for psychological or psychiatric issues, as far as the Court is aware, has been modest.

244Ms Edirisinghe’s Affidavit evidence and her oral evidence about psychiatric impairment consequences is thin.

245In such circumstances, the Court finds that the medico-legal evidence which was supportive of Ms Edirisinghe is not sufficient to establish the existence of a severe psychiatric condition.

246On a fair consideration of all the material, Ms Edirisinghe’s psychiatric state cannot be said to meet the “severe” test.

Conclusion

247For the reasons articulated, Mrs Edirisinghe has not satisfied her onus to establish that there is a substantial organic basis for her claimed impairment consequences.

248I am unable to identify which impairment consequences are referable to an organic spinal injury or a non-organic injury.

249Further, Ms Edirisinghe has not established that she satisfies the “severe” test under paragraph (c).

250I therefore do not need to determine whether she has satisfied the pecuniary loss test.

251Ms Edirisinghe’s application is therefore dismissed.

252I will hear the parties on the issue of costs.

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