Ellis v Victorian WorkCover Authority
[2025] VCC 1349
•24 September 2025
| IN THE COUNTY COURT OF VICTORIA AT SHEPPARTON COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-23-04932
| COLLEEN LOUISE ELLIS | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Shepparton | |
DATE OF HEARING: | 10 September 2025 | |
DATE OF JUDGMENT: | 24 September 2025 | |
CASE MAY BE CITED AS: | Ellis v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 1349 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – impairment of the spine – causation – pain and suffering conceded
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s335(2)(d)
Cases Cited:Humphries and Anor v Poljak [1992] 2 VR 129; Petkovski v Galletti [1994] 1 VR 436; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz (2012) 34 VR 309; Seckold v Transport Accident Commission [2024] VCC 343; Dahl v Grice [1981] VR 513
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S Carson with Ms K Brady | Slater & Gordon Ltd Lawyers |
| For the Defendant | Mr P A Scanlon KC with Mr S D Martin | Lander & Rogers |
HER HONOUR:
1This is an application for leave to bring proceedings pursuant to s335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (“the Act”) in relation to injury suffered during the course of the plaintiff’s employment between June 2015 and August 2017 (“the relevant period”) at Warramunda Village Incorporated (“the employer”).
2The plaintiff sought leave to bring proceedings for damages in relation to pain and suffering. The body function said to be impaired is the spine.
3In opening, counsel for the defendant conceded seriousness.[1] The only remaining issue was whether the serious injury consequences are attributable to employment with the employer in the relevant period.
[1]Transcript (“T”) 1, T11
4The plaintiff bears the onus of establishing that her serious injury has resulted from her work during the relevant period.
5I have applied the principles identified by the Court of Appeal in Humphries and Anor v Poljak,[2] Petkovski v Galletti[3] and AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz[4] in reaching my conclusions.
[2][1992] 2 VR 129
[3](1994) 1 VR 436
[4](2012) 34 VR 309
6The plaintiff sworn four affidavits in this application. She also sworn an affidavit in another serious injury application against her subsequent employer, Wharparilla Lodge Inc, on 3 May 2024. She was not cross-examined.[5]
[5]T2
7Also in evidence were medical reports and other material. I have read all the tendered material.
Plaintiff’s affidavit evidence
WORK HISTORY
First affidavit sworn 5 May 2023
8The plaintiff is presently aged thirty-nine, having been born in 1976. She grew up in Kyabram and has three adult children.
9She commenced work with the employer in 2013 as a cleaner, working about 20 hours a week. She moved into the kitchen in late 2013, working there until February 2015, when she commenced a traineeship as a Certificate III in Aged Care to work as a Personal Care Assistant (“PCA”).
10In about March 2017, she started looking for other work because of her back pain. She started work at Echuca Benevolent Society Incorporated at Wharparilla Lodge (“Wharparilla”) on a casual basis, before becoming permanent part-time on nightshift. She also continued working for the employer until August 2017. She ceased work at Wharparilla in about August 2021 because of back pain from her injury with the employer.
11In about August 2021, she started working for Thrive Disability Support Services in a support role for people with disability, working around 25 to 30 hours a week. She worked in that role until November 2021, when she started work with We Are Vivid, again in a disability support role. She also obtained a job with U-Choose in a similar role. She worked in both jobs until early January 2022, when she stopped because of increased pain.
12She was off work until August 2022, when she recommenced working for We Are Vivid on a casual basis.
Second affidavit sworn 4 March 2024
13As at March 2024, she remained employed by We Are Vivid, looking after three separate clients with cognitive issues, doing their cooking and making sure they took their medication at home. She occasionally did shopping for them.
14She was working varying hours for each of those direct clients, being a total of about 25.5 hours a week.
15Although she was determined to try to remain in the workforce, she still suffered significant restrictions in performing a range of work duties, and she avoided long driving.
Third affidavit sworn 14 February 2025
16She was no longer employed by We Are Vivid since May 2024 when one of her clients died. She had found the travel and driving was increasingly difficult, and found she was struggling with bladder control as a result of her injuries.
17The plaintiff now had one direct client who she assisted occasionally, who lived in Kyabram and had mental health difficulties. She only lived five minutes away. She provided social assistance and some mental support for two to four hours a week or fortnight. The work was not physical.
Fourth affidavit sworn 5 August 2025
18She is currently working with two clients for about twelve hours a week. They have intellectual disabilities, and do not need physical support or help. That is the only way she could do the work. She would not be able to cope with clients with physical disabilities.
19Even with low-needs clients, she struggles with pain. She pushes herself because she needs the income. She cannot stand for very long, as her back pain quickly builds up while she is standing. Her sleep is as bad as ever.
INJURY
First affidavit
20Throughout the course of her employment with the employer from June 2015 to August 2017 (“the relevant period”) , she suffered injury to her spine as a result of repetitive manual handling of heavy and awkward patients. She worked as a PCA on the main floor, but mostly in high care, the Mary Sleeth Wing (“MSW”), with heavy non-ambulatory residents. She was required to handle and transport those residents in wheelchairs, attend to their hygiene and dressing, and also strip and make the beds.
21She was required to use manual lifters in small carpeted rooms often cluttered with residents’ furniture, change incontinence pads, feed residents, and clear the dishes. The rooms did not have roof tracking so they needed to use slide sheets or lifters.
22She often experienced soreness in her back from heavy lifting. She requested rotation away from the MSW onto lighter duties, but that did not happen.
Treatment – first affidavit
23In about June 2014, the plaintiff attended Dr Jamsheer, general practitioner (“GP”), at Scope Medical Centre (“Scope”) and was referred for a CT scan of her thoracic spine, having attended for a cough and pain.
24The following year, she started Bowen therapy in Stanhope due to her back pain, and continued until about early 2020 on as “as needs” basis, but often on around a weekly basis for several months at a time.
25In mid June 2015, she saw Dr Gill, GP, due to back pain and was referred for an x‑ray. Later that month, she had a lumbar and thoracic CT scan. She was prescribed Tramadol, and later Panadeine Forte, and continued working.
26On 6 May 2016, she attended Dr Jamsheer after experiencing further back and neck pain after lifting and moving a heavy client, and was referred for a CT scan of her neck and back.
27In about October 2016, her mental health deteriorated and she was referred to Dr Chakrabaarti, psychiatrist, whom she saw in November 2016.
28In June 2017, she saw Dr Khan, GP, due to ongoing lower back pain, and was referred for a lumbar x‑ray and prescribed Valium, Voltaren Rapid and Panadol Osteo.
29She was referred to Mr Pavlovich, orthopaedic surgeon.
30It was suggested she work lighter duties. She continued to work, and experienced lower back pain from time to time.
31In around March 2020, her back pain increased and she experienced left shoulder pain. She saw her GP and was referred for an ultrasound of the left shoulder and a lumbar CT scan. She was prescribed Lyrica, and referred for physiotherapy, and was continuing to receive Bowen therapy during that time.[6]
[6]No report available, T18 and T24
32She had a further lumbar CT scan on 12 March 2020, and on about 2 July that year, underwent a left shoulder ultrasound-guided injection. This did not give her much pain relief.
33On about 18 November 2020, she had a lumbar MRI scan. She was referred to a physiotherapist, and later to St Vincent’s Hospital Neurosurgery.
34On about 2 December 2020, she had an L3-4 and L5-S1 CT-guided epidural steroid injection. Later that month, she had a CT-guided left L5-S1 transforaminal epidural injection, and on 31 December 2020, underwent a CT-guided left-sided L5-S1 steroid injection.
35On 29 January 2021, she had another CT-guided left L5-S1 transforaminal epidural injection, and on 20 August that year, had a CT-guided epidural injection at L5-S1.
36In February 2022, she attempted to undergo a lumbar MRI scan, but that day, and the following day, could not have it because of difficulty lying down. She finally had the MRI scan on 20 May 2022.
37On 24 June 2022, she had surgery involving a left L5-S1 microdiscectomy at St Vincent’s Hospital, which provided good improvement in her pain at the time.
38On 16 September 2022, she again consulted Dr Jaber, and was able to return to work on modified duties.
Second affidavit
39She took Endone and Targin SR, together with 100 milligrams of Celebrex morning and night, and Panadeine Forte when the pain was more severe. She tried to avoid taking too much medication when she had to work a shift. She took Endone and Targin at least weekly.
Third affidavit
40She was then taking Endone, Targin, Celebrex and Gabapentin to manage pain. She continued to see her GP and pain-management specialist.
Fourth affidavit
41Her lower back pain has remained very much the same. It seems to have reached a plateau, and she is no longer confident that there is going to be any improvement.
Claim documentation
42In her Claim Form signed 24 February 2022, the plaintiff set out that she had suffered lower back, left leg, and psychological injury, as during the course of her employment she was required to perform heavy work as a PCA for high-needs residents.
43She first noticed the condition in late 2015, and stopped work on 7 January 2022, having reported the injury in late 2015. She started to work for the employer in March 2013.
44By letter dated 31 March 2022, DXC Claims Management Services accepted the plaintiff’s claim for medical and like expenses and weekly payments for the period 1 May 2016 to 30 June 2017.
45DXC accepted that the plaintiff had a lower back condition with no definitive diagnosis from the clinical records that was related to work.
46It accepted that, in all probability, the plaintiff had sustained a transient back injury in the course of her employment with the employer in that timespan recorded in the clinical records.
47DXC rejected the proposition that the plaintiff’s current claimed back injury and certified incapacity for employment from 28 February 2022 had been materially contributed to while working for the employer.
48According to the clinical records from Scope of the plaintiff’s GP, she had reported multiple episodes of lower back pain.
49There was a gap between the consultation on 6 May 2016 until a further mention of the back on 5 June 2017.
50There was also an independent investigation conducted by LKA Group, who reported in March 2022. The employer had provided information that there was no notice of incident or advice of report of injury; she was not observed having any problems until ceasing employment in or around August 2017, and the first notice of injury was the Claim for Compensation dated 24 February 2022.
51The denial was based on the lack of further consultation with doctors subsequent to the dates which refer to an ongoing back injury or symptoms on any contemporaneous mechanical evidence suggesting connection to employment with the employer.
52There was a reported exacerbation of pain with a different employer in or around January 2022.
Plaintiff’s medical evidence – causation
Treaters
53The following comments were made by Scope GPs in their reports:
(a) “her back injury is linked to work related injury during 2015” (Dr Jaber on 25 January 2022);
(b) “work related injury back to 2015 during her employment as a cleaner and personal care assistant” (Dr Jaber on 28 March 2024); and
(c) plaintiff “reported having back pain from 2015 after helping someone as she worked as a personal care assistant” (Dr Morteza on 7 August 2025).
54Physiotherapist, Ms Villalta from St Vincent’s Hospital, reported on 7 March 2022 that the plaintiff had a Telehealth visit with the Neurosurgery Clinic, describing an exacerbation of her symptoms in the past eight weeks when coughing, resulting in some ED attendances and being unable to work in aged care.
55Dr Madeleine Buck, an unaccredited Neurosurgery Registrar at the Neurosurgery Clinic, St Vincent’s Hospital, reported on 14 June 2022.
56That day, she saw the plaintiff, who told her that she had been suffering with severe left S1 radiculopathy over the last seven years which had been noticeable since 2015/2016, at which time she started a long-term physiotherapy program and some steroid injections with some relief, although her pain worsened and she was referred to St Vincent’s Hospital.
57She understood the plaintiff was working in aged care for many years and then subsequently switched to disability support work in order to leave the heavy work; however, she had not worked since January when her pain flared up.
58Dr Sarah Cain, Neurosurgery Registrar at St Vincent’s Hospital, spoke with the plaintiff on 30 August 2022. Her note made no mention of when and where the plaintiff’s back pain started.
59Dr Stiofan O Conghaile, pain specialist physician and anaesthetist, reported on 29 January 2025, having seen the plaintiff on referral from Mr Vellore.
60The plaintiff described a nine-year history of back and left leg pain that followed a lumbar injury sustained while working in aged care. Despite efforts to manage this conservatively, she came to surgery in June 2022.
61The plaintiff suffers from a work-related lumbar injury characterised by lumbar spondylosis, specifically a disc protrusion at L5-S1 that necessitated a microdiscectomy and a disc protrusion with associated annular fissure at L3-L4 level.
Investigations
62The clinical records from Scope contain a request for a number of investigations but no details of any undertaken until March 2020 (21 June 2015 – x-ray lumbar spine; 6 May 2016 – CT scan lumbar and cervical spine, and 5 June 2017 – x-ray lumbar spine).
63Following a lumbar CT scan on 12 March 2020, it was reported at L3-4, there was a moderate-sized central disc protrusion which indents the thecal sac. At L4-5, there was a broad-based disc bulge with a small left paracentral disc protrusion. At L5-S1, there was a broad-based disc bulge with a moderate-sized central disc protrusion which indents the thecal sac.
64There was a further lumbar CT scan in November 2020, following which it was suggested neurological opinion would be useful, in particular, with reference to the L3-4 and L5-S1 disc findings.
65There was a lumbar MRI scan in May 2022 and a CT scan in April 2023.
66The plaintiff underwent CT-guided injections in December 2020, February and August 2021. She underwent a left L5-S1 microdiscectomy in June 2022 and nerve root injections in February 2024 and 2025.
Medico-legal evidence
Dr James Rowe, specialist occupational physician
67Dr Rowe examined the plaintiff on 2 February 2023.
68In terms of history, the plaintiff was employed as a PCA on a permanent part-time basis with the employer. Her duties included making beds, showering residents, pushing wheelchairs and cleaning.
69Throughout the course of her employment, she developed pain in her back, first noticing pain in around 2015. Her back pain would flare up occasionally, and she would call in sick.
70In 2017, she also obtained casual employment at Wharparilla.
71Around this time, she resigned her position with the employer as there were no light duties available for her. She continued to work at the new job, where she felt the work at the time was more manageable.
72Carrying out various duties in the dementia wing, over time her back pain increased. She saw several GPs at Scope, and had chiropractic treatment, and regularly took sick leave throughout 2017 and 2021.
73Early in 2021, she changed her employment state as a casual at Wharparilla. She could no longer work her contracted hours, and eventually resigned due to back pain in August 2021.
74The onset of the plaintiff’s incapacity was in 2015-2016.
75The nature of the work, the care and handling of older and sometimes unresponsive patients in challenging settings, was consistent with the onset of the plaintiff’s symptoms and the aggravation of previously asymptomatic degeneration. It is, of course, true that most individuals will develop some degeneration in the spine, but the plaintiff’s condition has been severe enough to eventually warrant surgery.
Dr David Fitzgerald, consultant occupational physician
76Dr Fitzgerald examined the plaintiff on behalf of Wharparilla’s insurer in January 2023.
77The history was the plaintiff’s back condition started in around 2015-2016 when she was working for the employer. There was no real sudden specific incident. The onset of back pain seemed to be more gradual. She reported that while she was working there, there were times when she was hunched over and had Bowen therapy for quite a while which seems to maintain her and then chiropractic treatment. Her GP prescribed Tramadol.
78She left the employer after being told light duties suggested by her GP were not available. At the same time, she had started taking shifts at Whaparilla which she advised were somewhat easier on her back. Nightshifts were less intense. This was until there was new management which took on heavier and more violent clients.
79The plaintiff reported that initially there was not as much pain when working there; however, her pain gradually continued to get worse. She changed from Bowen therapy to chiropractic treatment. She then had an MRI scan in March 2020 and ended up having surgery in June 2022.
80He was asked:
“Based on your examination and the history provided to you:
.Is this a new injury or medical condition or an aggravation, acceleration, exacerbation or deterioration of a pre-existing injury or medical condition?
.if ‘yes’ to the above, to what extent has the worker’s employment contributed to the aggravation, acceleration, exacerbation or deterioration?
This is a degenerative condition that is probably pre-existing although no radiology has been provided to inform me of such. I would not suggest that her work with Wharparilla Lodge would have been significant in the contribution to her pain and condition which appeared to have started earlier in 2015 or thereabouts before she started working there, the progression of her pain being most likely just the natural course of events. If anything, one would link the causation of the condition in a temporal sense primarily to her previous employment, even though this is presumably tenuous, given she reports she had a claim in against the previous employer which doesn’t appear to have been accepted.”
Mr Thomas Kossmann, orthopaedic surgeon
81Mr Kossmann examined the plaintiff on 13 February 2023 and re-examined her on 31 January 2024.
82In terms of history, the plaintiff told him she had completed a PCA course and started work in 2015. Her work was physically very demanding.
83She advised she started to develop lumbar spine pain around 2015-2016 and went to her GP. She asked to be moved to lighter duties with the employer, and in 2017, changed employer and was working with patients who were able to look after themselves.
84The plaintiff continued to suffer from pain issues radiating into both of her legs, ultimately having a lumbar CT scan in March 2020, then undergoing a range of various procedures until surgery in June 2022.
85Under the heading “Causation”, he noted the plaintiff was working in physically demanding work as a PCA. She developed pain in her lumbar spine from 2015-2016 onwards, and was treated conservatively by a GP. She had investigations leading to the CT scan, a number of CT-guided injections, then the surgery, following which she continued to suffer ongoing back pain.
86A similar history was repeated in his report of the following year, as were his comments on causation.
87In answer to the question, what injuries were sustained by the plaintiff during the course of her employment with the employer on 2015 through the course of employment, he diagnosed aggravation of lumbar spondylosis, left L5-S1 microdiscectomy and failed back surgery syndrome.
Dr Hazem Akil, neurosurgeon
88Dr Akil first examined the plaintiff on 1 February 2024 via Zoom.
89In terms of mechanism of injury, the plaintiff described working from 2015 as a PCA where her job involved significant physical duties.
90She described that she started feeling lower back pain that was particularly problematic around 2016, although she did have some element of lower back pain before then, but not to the extent that required any treatment.
91She told him she was managing her pain with a combination of advice from her GP and attending Bowen therapy. She also said she had a few sessions of physiotherapy, that she continued to work, and during this time her GP arranged for her to have multiple imaging of the thoracic and lumbosacral spine.
92Around March 2020, she noted her back pain had worsened in intensity, and it was associated with left shoulder pain, and again she was trying to manage it with a combination of physiotherapy and Bowen therapy.
93Dr Akil then detailed the plaintiff’s ongoing history of treatment and complaints.
94The diagnosis was aggravation of lumbar spondylosis with an associated left S1 pain and radiculopathy.
95The plaintiff’s duties described to him whilst working as a PCA were consistent with the current condition, and he considered those duties as a significant contributing factor.
96On the balance of probabilities, the employment as a PCA is a significant contributing factor to the plaintiff’s injury.
97On re-examination in February 2025, he confirmed the mechanism of injury.
98He also answered the question: “Do you consider on the balance of probabilities that … [the plaintiff’s] employment with Warramunda Village remains a material cause of her injuries?” with “I do believe that her employment is the main significant factor behind her current condition”.
99By letter dated 1 May 2025, Dr Akil was asked by Slater & Gordon to provide a supplementary report detailing his answers to the questions below:
“1. Considering the above, and the nature of the duties that the Plaintiff was required to perform at each of the employers, in your opinion, what contribution, if any, did the employment with Warramunda Village between 2013 until August 2017 have to the Plaintiff’s lumbar spine injury and subsequent deteriorations, as described in your previous reports.
2. Do you consider, on the balance of probabilities, that the Plaintiff’s employment with Warramunda Village, and the duties performed there, remain a significant contributing factor to her current condition?”
Background
Warramunda employment
In her first affidavit sworn 5 May 2023 at paragraph 7, the plaintiff deposed:
“In around 2013 I commenced work for Warramunda Village Incorporated (‘Warramunda’) as a cleaner performing around 20 hours. I moved into the kitchen in around late 2013 until around February 2015 when I commenced a traineeship as a Certificate III in Aged Care to work as a Personal Care Assistant.”
Further, at paragraph 10, the plaintiff deposed:
“Throughout the course of my employment with Warramunda from on or about June 2015 until in or around August 2017 I suffered injury to my spine as a result of repetitive manual handling of heavy and awkward patients. I worked as a personal care assistant on the main floor, but mostly in the high care wing, the Mary Sleeth Wing (MSW), with heavy non-ambulatory residents. I was required to handle and transport them in wheelchairs, as well as provide care including showering, toileting, drying, dressing and undressing them. In addition I was required to strip and make beds. I was required to use manual lifters in small carpeted rooms, often cluttered with residents’ own furniture, change incontinence pads, feed residents, serve them afternoon tea, dinner and clear dishes. The rooms did not have roof tracking so we needed to use a slide sheets or lifters. I often experienced soreness in my back from the heavy lifting, and requested rotation away from the MSW onto lighter duties but this did not occur.”
Due to the heavy nature of the duties and the deterioration of the plaintiff’s back as a result, she ultimately resigned from her position at Warramunda in or around August 2017.
Wharparilla Lodge employment
The plaintiff subsequently commenced work as a PCA at Echuca Benevolent Society Inc, trading as Wharparilla Lodge.
The plaintiff has sworn a further affidavit with respect to her employment at Wharparilla, dated 3 May 2024. In this affidavit, the plaintiff deposes:
“10.At the time I commenced with Wharparilla Lodge I had no doubt that I was fit to do the work that I was initially offered. I advised the employer that my previous work with Warramunda Village had been very heavy.
11.At Wharparilla Lodge when I started I had more independent clients. I was not regularly placed in the high care wing. In the clients that I attended in my work as a personal care assistant I was assisted by tracking on the ceilings and the fact that the rooms were larger.
12.In that initial period with the Defendant I was able to keep up a reasonable lifestyle away from work. That included walking around 5km per day.”
While the work the plaintiff was doing at the commencement of her employment with Wharparilla was lighter and had the effect of moderating her pain, a change of management saw increasing aggressive residents being admitted into the facility approximately eighteen months after commencing employment. The plaintiff instructs that with this change, greater strain was placed upon her body.
Additionally, the changes to the beds in the facility resulted in the plaintiff having to reach further across to change the sheets or assist residents, placing greater strain upon her back, and contributed to a deterioration from around mid 2019, and ultimately the plaintiff ceased work at Wharparilla in around August 2021 due to the back pain.
100Dr Akil was also provided with copies of both affidavits of the plaintiff.
101He responded:
“I have taken into consideration the points mentioned in your letter of instructions. From a temporal point of view as well as taking into consideration the duties that Ms Ellis was undertaking whilst employed with Warramunda I believe that her condition started and caused by her duties whilst there resulting in a discogenic lower back pain with a left S1 pain and it is this employment that is the most significant factor in causing her current pain condition. The subsequent employment with Wharparilla Lodge further exacerbated the pre existing condition.”
Defendant’s medical evidence
GPs’ notes
102On 21 June 2015, the plaintiff attended Dr Gill. The reason for the contact was backache and management. The plaintiff “[p]resented with back pain, not getting better. Occur[red] after having fall last night. No history of trauma or accident. … Background of osteoarthritis and lumber (sic) disc bulge at L4-L5.”
103A CT scan of the lumbosacral and thoracic spine was requested and Tramadol prescribed.
104On 6 May 2016, Dr Jamsheer noted:
“pain , due to lifting , pulling weight at work as working at warramanda
pulling heavy client
hurt her back
has lower back , neck pain.”
(sic)
105A CT scan of the cervical and lumbar spine was requested.
106On 5 June 2017, it was noted that the plaintiff had been seeing a Bowen therapist in Kyabram
107For the last three months:
“has been having pain in her lower back intermittent for last 6 months plus
works in warramunda
as cleaner
wroking by rolling – liftting
push them on carpets
in residential careLower back.”
(sic)
108Diagnostic imaging in the form of an x-ray of the lumbosacral spine was requested and medication prescribed.
109On 5 July that year, the plaintiff attended with lower back pain, waiting to see a specialist and was stressed as she was not getting light duties at work. She was given a medical certificate and Valium was prescribed.
110The next mention of back pain was on 12 March 2020, when the plaintiff attended with neuropathic pain – “bilateral leg radiculopathic pain” – and was advised that she needed an urgent scan.
Medico-legal
Dr Peter Wilkins, occupational physician
111The insurer arranged for an examination with Dr Wilkins in March 2022.
112The plaintiff told him about heavy work she did with the employer and the onset of low back pain.
113His history was simply that the plaintiff stated over the succeeding years that her back pain gradually worsened and she had an MRI scan in November 2020. She was then on a waiting list at St Vincent’s Hospital for a further MRI scan to be performed under general anaesthetic.
114In terms of diagnosis, Dr Wilkins stated that based on the limited information available, the plaintiff has significant lumbar spondylosis with disc prolapse probably at several levels and compromising the exiting S1 nerve root on the left. He would be better informed by access to the forthcoming MRI scan scheduled for April.
115Without access to the MRI examinations, he was unable to provide a definitive answer as to what caused the plaintiff’s injury or medical condition. Based on the limited information the plaintiff conveyed orally regarding the earlier MRI scan, there appeared to be a large component of degenerative developmental change, while it is also possible that repetitive heavy lifting undertaken in the course of her duties as a PCA may have made a contribution, particularly to disc prolapses.
Dr Anthony Menz, orthopaedic surgeon
116Dr Menz examined the plaintiff in March 2023.
117He noted that she worked as a PCA, experiencing a gradual onset of low back pain in 2016, and her GP organised a course of Bowen therapy which helped resolve her symptoms initially.
118On 24 August 2017, she resigned from Kyabram and started working as a PCA at Wharparilla in the same type of work, but said it was much lighter.
119She continued to complain about back pain throughout that time from August 2017 through to August 2021.
120The plaintiff had had a long history of back and leg pain which came on gradually in 2016. This initially resolved with a course of Bowen therapy and she continued working through until 2021 as a PCA.
121The plaintiff underwent three guided epidural steroid injections, leading to a microdiscectomy in June 2022.
122The diagnosis was age-related lumbar disc degeneration which gradually went on to a severe protruding disc compressing the left S1 nerve root during a coughing fit.
123He did not believe that the plaintiff’s employment with Warramunda at all has been associated with the development of the lumbar disc degeneration, which has gradually gone on to a disc protrusion. An unrelated coughing fit caused the disc to protrude even further, causing a severe exacerbation of her sciatica symptoms requiring her to have surgery. None of this is work related. Her disc degeneration is constitutional.
Dr Ian Dickinson, consultant orthopaedic surgeon
124Dr Dickinson reported in September 2025 on the papers, having been provided with radiology from the initial lumbar CT scan of 12 March 2020, and details of CT-guided injections and the most recent nerve root sleeve injection of February 2025, together with other treatment reports from specialists and clinical records from Scope and Dr O Conghaile.
125He noted the GP attendances in June 2015, May 2016 and June 2017. There were then no further entries in relation to the back until March 2020.
126The plaintiff has chronic progressive degenerative disease of the lumbar spine with development of spinal stenosis. As part of the degenerative process, she had evidence of a left-sided disc protrusion at L5-S1 which was subsequently operated.
127The plaintiff’s condition was not causally related to her alleged work duties at Warramunda. The other matters contributing include obesity, diabetes and chronic smoking.
128The nature and impact of degeneration is that there is increasing disability from complaints of pain in the lumbar spine region and the legs. This is related to pain with movement and with lifting.
129The degeneration will continue and cause narrowing of the spinal canal, both centrally and in the lateral root canals. The disc spaces will collapse and there will be apophyseal joint degeneration.
Submissions
Defendant
130There has been no attempt by the plaintiff to disentangle or address the question of causation.[7]
[7]T10
131While Mr Akil received the full May 2023 and 2024 affidavits, the parts of the affidavits highlighted to him did not tell the whole picture. He got a potted history of what really was happening. He had not received a history that was consistent with the plaintiff’s progression from the time she worked with the employer to what occurred with Wharparilla.[8]
[8]T13
132Mr Akil did not know how the plaintiff was travelling when she started at Wharparilla or how she was travelling immediately at the cessation of her work with the employer. On that basis, “his report had to be flawed and incapable of being accepted because it is based on a history that is simply not accurate”.[9]
[9]T22
133By 2020, the plaintiff was now “a medical disaster” in terms of her back and the way she was dealing with it, with a further downhill spiral until surgery in 2022.[10]
[10]T15
134As the plaintiff deposed on 3 May 2024 in her Wharparilla application, she was then taking Endone, Targin, Celebrex, Valium and Phenergan, and also Panadeine Forte, which she took daily – none of which she was taking in the relevant period or in 2017.[11]
[11]T15
135The plaintiff received no medical treatment for her spinal condition from July 2017 to the time she had a lumbar CT scan in March 2020.
136While there was mention in the Scope notes of referral for various scans, there is no evidence any took place. There were attendances at the GP in May 2016 and 5 and 6 June 2017, and a referral to Mr Pavlovic, an orthopaedic surgeon, from whom there is no report.
137There is no basis upon which the Court could find that the difficulties the plaintiff has today, which are acknowledged, are properly laid at the feet of the employer.[12] The evidence will not support that, and there has been a failure by the plaintiff to disentangle, for the Court to make the necessary findings that her injury during the course of her employment with the employer was causative of her serious injury.
[12]T19
138The grant of a serious injury certificate application against Wharparilla was of limited value but nonetheless of significance as the plaintiff was compensated by a common law settlement in relation to that employment.[13]
[13]T19
139The treaters’ reports did not help with the issue of causation, simply describing the injury as “back injury being linked to work-related injury during 2015” with no mention of the name of any particular employer. The treaters had not attempted any delineation. There was no mention of the plaintiff’s work after leaving the employer in August 2017 which, on her own admission, was significantly heavy and causative of her pain.[14]
[14]T20
140Mr Kossmann had completely the wrong history, and Dr Rowe did not deal with the issue of causation.[15]
[15]T21
141Neurosurgeons and specialists from St Vincent’s Hospital who treated the plaintiff also did not have the proper history.
142The onus falling where it does, the application predating the settled application “must be doomed to failure”.[16]
[16]T23
Plaintiff
143The settlement of the plaintiff’s claim against Wharparilla does not assist at all in the resolution of this application and it would be dangerous to rely on anything to do with it.[17]
[17]T23
144There were two core passages from the medical reports relied upon.[18]
[18]T6
145Dr Fitzgerald did not suggest the plaintiff’s work at Wharparilla would have been significant in the contribution to her pain and spinal condition which appears to have started earlier in 2015. He links the causation of the condition in a temporal sense primarily to her previous employment.
146Dr Akil believed employment during the relevant period is the main significant factor behind the plaintiff’s current condition, having been asked: “Do you consider on the balance of probabilities that Ms Ellis’ employment with Warramunda Village remains a material cause of her injuries?”
147Dr Akil, in his supplementary report of 13 July 2025, also said:
“I have taken into consideration the points mentioned in your letter of instructions. From a temporal point of view as well as taking into consideration the duties that Ms Ellis was undertaking whilst employed with Warramunda I believe that her condition started and caused by her duties whilst there resulting in a discogenic lower back pain with a left S1 pain and it is this employment that is the most significant factor in causing her current pain condition. The subsequent employment with Wharparilla Lodge further exacerbated the pre-existing condition.”
148The plaintiff’s first affidavit sworn 5 May 2023 showed “there was a lot going on”. There was a referral for a thoracic CT scan in June 2014, regular Bowen therapy from around 2015 to early 2020, an attendance with the GP at Scope on about 21 June 2015 due to back pain and referral for a lumbar x-ray. Later that month, the plaintiff had a lumbar and thoracic CT scan. Tramadol, and later Panadeine Forte, was prescribed for back pain. The plaintiff attended her GP in 2016 after experiencing further back pain and neck pain after lifting and moving a heavy client at Warramunda. She was referred for a lumbar and cervical CT scan. She was referred to a psychiatrist in November 2016 when her mental health deteriorated.[19]
[19]Paras 11-16
149While the defendant sought to highlight that somehow there is an almost rosy picture when the plaintiff left Warramunda and moved to a new job, she deposed that she continued to do domestic tasks, although she needed to exercise a great deal of care – “So, certainly things had not gone away.”[20]
[20]T24
150Further, the plaintiff said initially she felt that her pain did “moderate”. She was not saying that the pain went away; it moderated. She was taking a great deal of care at home with her domestic tasks – “So the problem is still there. It has not gone away in any sense at all.”[21]
[21]T25
151Obviously, the onus is on the plaintiff, but “the snowball was effectively pushed off the top of the mountain at Warramunda, the first employer, and it’s kept going ever since. So those things that started to happen or manifest themselves at Wharparilla, the second employer, were really just that, they were a manifestation of the damage that had already been done to this plaintiff’s back.”[22]
[22]T25
152The plaintiff says in at least two of her affidavits that she left the employer to get lighter work so she moved out of the subject employer because the work was too heavy. She has got a problem and goes to lighter work.[23]
[23]T26
Findings
153I am not satisfied any back injury suffered by the plaintiff while working with the employer in the relevant period is productive of the serious injury consequences conceded by the defendant as at the date of hearing.
154The plaintiff has adduced very little evidence which sought to deal with the issue of causation.
155The plaintiff underwent limited spinal treatment during the relevant period, visiting her GP four times and undergoing Bowen therapy.
156The plaintiff did not complain to her GP of any back pain from July 2017 until 12 March 2020, when a lumbar CT scan was arranged. She left the employer in August 2017 to work at Wharparilla, having started there on a casual basis in March 2017.
157The plaintiff was first prescribed significant painkilling medication in March 2020, nearly three years after she had left the employer.
158The plaintiff made no complaint to the employer of any work-related back injury until she lodged a Claim for Compensation in February 2022, which was accepted in a very limited way.
159While nothing can be properly made of the common law settlement relating to the plaintiff’s Wharparilla employment, her affidavit in support thereof is relevant to the present application, in particular, to which employment the present serious injury consequences relate.
160It appears from the plaintiff’s affidavits in both serious injury applications, she attributed her spinal condition to her work with the employer, who was the defendant in that particular application.
161In her Wharparilla affidavit sworn on 3 May 2024, the plaintiff gave little detail of her injury with the employer stating she hoped it would improve and thought it was a strain. She saw her GP, had physiotherapy and an x-ray in June 2015.
162She also deposed that when her pain persisted, she decided to seek alternative work and started at Wharparilla. She had no doubt she could do the lighter job that was offered. For the first eighteen months she was able to live a reasonable lifestyle including walking 5 kilometres a day, cooking at Christmas for the family but having to take a great deal of care when doing housework. There was a worsening in her condition in about mid 2019 when the work became much heavier and she was referred for an MRI scan in March 2020. After the deterioration in her back pain, her personal life began to be greatly impacted. She had further investigations before surgery in June 2022. Prior to surgery, she had ceased work with the employer in about August 2021 by reason of the amount of her back pain.
163In the present application, the plaintiff’s first affidavit sworn on 5 May 2023, made no mention of any spinal injury while working with Wharparilla. She focussed solely on the heavy nature of her duties with the employer during the relevant period and deposed she left Wharparilla in around August 2021 because of her back pain from her injury with the employer.
164While this application is not a trial by doctors,[24] the medical evidence is of limited assistance to the plaintiff on the issue of causation.
[24]Dahl v Grice [1981] VR 513
165The main medical support for the plaintiff’s case in this regard was the opinion of Mr Akil, which was based on limited material that focussed on her difficulties working with the employer rather than the significant deterioration in her condition in 2020 after three years work at Wharparilla, the last eighteen months of which was heavy.
166Further, in his supplementary report, Mr Akil provided no path of reasoning for his conclusion that the plaintiff’s work during the relevant period was the most significant factor in causing her current pain condition, simply stating it commenced during that time and does no analysis of its progress thereafter.
167Dr Fitzgerald, who examined the plaintiff in 2023 on behalf of the insurer in the Wharparilla application, provided very limited support for the plaintiff’s case. He thought her spinal condition was degenerative and probably pre-existing, with the progression of her pain being most likely the natural course of events. At its highest, he noted that the condition appeared to have started in 2015 or thereabouts and, if anything, one would link the causation of the condition in a temporal sense primarily to her previous employment, even though this is “presumably tenuous”, given she reports she had a claim in against the previous employer which does not appear to have been accepted.
168No treating GP assisted the plaintiff’s case on causation, simply describing in a sentence the onset of back pain in 2015 with the employer and no mention of subsequent employment with Wharparilla and its contribution to the plaintiff’s current serious back condition.
169None of the plaintiff’s treaters at St Vincent’s Hospital attempted any delineation and had only very brief histories of the plaintiff’s employment and the progression of her back complaint.
170Medico-legal examiners, Mr Kossmann and Dr Rowe provide little assistance. Mr Kossmann had the wrong history and Dr Rowe had very little detail – both simply concluding employment during the relevant period significantly contributes to the plaintiff’s present lumbar condition.
171The defendant’s medico-legal examiners attributed the plaintiff’s condition to degeneration – not work with the employer.
172Taking into account all the evidence, leave is refused because I am not satisfied any injury during the relevant period is a “serious injury”. The plaintiff has failed to establish the serious injury which the defendant concedes, results from her work with the employer during the relevant period.[25]
[25]Seckold v Transport Accident Commission [2024] VCC 343 at paragraph [58]
173Accordingly, the application is dismissed.
Annexure “A”
The plaintiff sworn an affidavit in support of her serious injury application relating to her employment with Wharparilla Lodge Incorporated. In it, she said:
”4.In about 2013 I commenced work for Warramunda Village Inc as a cleaner doing about 20 hours. I moved into the kitchen in late 2013 in that employment and remained there until February 2015 when I commenced a traineeship as a Certificate III in Aged Care to work as a personal care assistant.
5.I suffered injury to my lower back in the course of that employment.
6.Within that period although I was suffering symptoms I continued to hope that I had only suffered a strain and that my condition would improve.
7.I did attend my GP and I was referred for physiotherapy and prescribed medication. I was sent for an x-ray on 25 June 2015.
8.When my pain persisted I decided to seek alternative work. I commenced working with Echuca Benevolent Society Inc. at Wharparilla Lodge on a casual basis initially before progressing to permanent part-time on nightshift. For a period of time, I worked also with Warramunda Village until in about August 2017 and from then I was employed only at Wharparilla Lodge.
Lifestyle prior to work injury with Wharparilla Lodge
9.At the time that I commenced at Wharparilla Lodge I was still having Bowen Therapy generally on a weekly basis. That treatment enabled me to manage the level of my pain. At times I had flare-ups of pain and I needed to lay down on the couch.
10.At the time I commenced with Wharparilla Lodge I had no doubt that I was fit to do the work that I was initially offered. I advised the employer that my previous work with Warramunda Village had been very heavy.
11.At Wharparilla Lodge when I started I had more independent clients. I was not regularly placed in the high care wing. In the clients that I attended in my work as a personal care assistant I was assisted by tracking on the ceilings and the fact that the rooms were larger.
12.In that initial period with the Defendant I was able to keep up a reasonable lifestyle away from work. That included walking around 5km per day which also helped me manage my diabetes. I enjoyed listening to music, dancing and going on holidays. I also had a regime of hosting a large Christmas gathering each year for my family of about seven. This involved a large amount of cooking. I was able to perform these activities.
13.At home I continued to do domestic tasks although I needed to exercise a great deal of care.
14.Initially I felt that my pain did moderate in my new employment. There was then a change of personnel and policy. In particular the manager who had previously been in charge of selecting the clients for acceptance into the residence decided to leave. That individual ‘Jackie’ had been very selective which meant that the cohort of residents attended did not involve a lot of obese or aggressive clients.
15.After Jackie left she was replaced by a person in management who had a much broader attitude to accepting anyone into the facility. In the dementia ward there were a number of very aggressive heavy men who were accepted. These changes came in around 18 months after I had commenced with the Defendant. Suddenly more obese residents appeared on the wards where I attended. On my shifts I would also have to attend to residents in the dementia ward where I regularly had residents kick out at me. One resident ‘Bill’ would hit and kick. Another resident ‘Colin’ was a very large man who I would often have to assist. In that period my duties started to place a greater strain upon my body. I was required to move quickly, twist and jump to avoid being kicked and hit.
16.In addition the Defendant had commenced to purchase wider single beds which required me to reach further across and to place greater strain upon my back. I found it increasingly difficult to handle the residents. Many of them who came in constantly got out of bed during the night.
17.The wider beds were a problem in attending to some of the residents. One lady required changing of her continence aids at night and to do this I had to stretch further across because of the dimension of the beds. In AC Unit a large man ‘Bob’ regularly got out of bed and when I was required to put him back into bed.
18.From about mid-2019 the pain in my lower back worsened. I was referred for an MRI scan of my lower back in March 2020. I applied for a reception job with the Defendant as my pain had become acute.
19.After the deterioration in my back pain my personal life started to become greatly impacted. I struggled at home and in particular in doing household tasks. I started to put all of my energy into simply being able to continue on at work. I developed a regime of basically eating, sleeping and returning to work. My partner Anthony started to do more and more of the domestic tasks including cooking, cleaning and shopping.
20.I was sent for further scanning by way of CT scan on 24 November 2020 and then I commenced CT guided injections.
21.After these investigations I was referred to a neurosurgeon at St Vincent’s Hospital and assessed by a physiotherapist.
22.Eventually I underwent surgery at L5/S1 at St Vincent’s Hospital on 24 June 2022.
23.Prior to undertaking the surgery, I had ceased work in about August 2021 by reason of the amount of my back pain.”
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