Fraser v Victorian WorkCover Authority
[2024] VCC 898
•4 July 2025 (Reasons revised in accordance with the principles in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AAM17 (2021) 388 ALR 257)
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-24-06130
| RHONDA FRASER | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE MANOVA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 June 2025 and 1 July 2025 (ex tempore) | |
DATE OF JUDGMENT: | 4 July 2025 (Reasons revised in accordance with the principles in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AAM17 (2021) 388 ALR 257) | |
CASE MAY BE CITED AS: | Fraser v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 898 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – long COVID – pain and suffering – whether serious injury
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s335(2)(d)
Cases Cited: Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326
Judgment: Application granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr H Hunt | Slater and Gordon |
| For the Defendant | Mr T Storey with | Wisewould Mahony |
HER HONOUR:
Introduction
1These are written reasons for my judgment handed down ex tempore on 1 July 2025.
2Rhonda Fraser, the plaintiff, seeks leave pursuant to s335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) to bring common law proceedings to recover pain and suffering damages in respect of an impairment to her immune system alleged to have arisen out of, or in the course of, her employment as a nurse unit manager with Peninsula Health (“the employer”) in July 2020 when she contracted COVID-19 virus.
3The defendant did not dispute the compensability of the injury. Ms Fraser was the only witness to give oral evidence and to be cross-examined and various material was otherwise tendered from the respective court books of the parties.
The relevant legal principles
4The relevant legal principles are well-known and were not in dispute. The Court must not grant leave unless it is satisfied, on the balance of probabilities, that “the injury” is a “serious injury”.
5Mr Storey appropriately drew the Court's attention to the word "very" in the test, that is, that they have work to do and the Court must be satisfied that the impairment, in the range of possible impairments, must be able to be fairly described as “being more than significant or marked” and “at least very considerable”.
Background
6Ms Fraser was born in 1969 and is currently fifty-six years of age. She is a nurse.[1]
[1] Plaintiff’s Court Book 7 (“PCB”)
7In 2005, Ms Fraser commenced work with the employer and was later promoted to associate nurse unit manager.[2]
[2] PCB 7
8Between 20 and 22 July 2020, Ms Fraser came in close contact with COVID-19 positive patients, as a result of which she contracted the virus.[3] She subsequently developed long COVID. She has had ongoing treatment from an infectious diseases consultant, a cardiologist, a neurologist, and her general practitioner. She has received a variety of medications, including Clonazepam, Naltrexone, and her usual dose of Fluoxetine was doubled. She was also prescribed nicotine patches. This was all done in an attempt to address the symptoms of her long COVID.[4]
[3]PCB 8. The date in the affidavit was amended in examination-in-chief to be a date range between 20 and 22 July 2022; see Transcript (“T) 5.
[4] T8 – T10
9Ms Fraser has continued to suffer the ongoing effects of her condition for the last five years. These include brain fog or inability to concentrate, shivers and tremors, tingling and shivering at night, random stabbing pains and the sensation of numbness in certain areas of her body.[5]
[5] PCB 10-11
10Although she has continued to work in the same capacity, it is at a different location and she continues to experience restrictions in her daily functioning.[6] This includes no longer being able to play competition tennis, walk her dog for long distances, or perform her housework as she once did.
[6] PCB 11-12
11Her pre-existing psoriasis condition has also become exacerbated and she has developed symptoms consistent with Postural Orthostatic Tachycardia Syndrome (“POTS”). She was prescribed pyridostigmine by her cardiologist. At night, she also takes Lemorexant to help her sleep and to address her nighttime tremors and pains.[7]
[7] PCB 15-16
12The most significant consequence of the condition is constant tiredness, lacking sufficient energy to do things outside of work, and being unable to engage in the physical aspects of being a nurse on a ward and interacting with patients and their families. She has to take frequent periods of time off at work to rest and recharge and has been using her long service leave, rather than her sick leave, so that she is not inconveniencing her workplace, nursing staff and patients.[8]
[8] PCB 17-18
Treating medical practitioners
13There was not much dispute on the evidence and Mr Storey made appropriate concessions in that regard.
Dr Emma Tippett, infectious disease expert
14Dr Emma Tippett, outlined in her June 2025 report, that Ms Fraser's prognosis was uncertain and she has a claimed condition of POTS, which was definitely associated with long COVID. Although her medical condition appears to have stabilised, there was some prospect of gradual deterioration, rather than improvement.[9]
[9] PCB 50
15Ms Fraser’s functional capacity had remained relatively consistent over the past two years. There were no specific treatments, but a range of medications had been prescribed. According to Dr Tippett, there was a risk of deterioration and Ms Fraser was unable to work the same hours, or in the same capacity, as before her illness. She could not tolerate standing for extended periods and required a desk-based position.[10]
[10] PCB 51
16Ms Fraser’s cognitive function had been significantly impacted. This affected her ability to multitask and engage in the complex communication required for ward-based nursing. These matters represented a significant career change and were all necessitated by the long COVID condition. In addition, there were impacts on her ability to engage in outside activities such as tennis. Her domestic life and ability to engage in household tasks were affected. She had also gained weight.[11]
[11] PCB 50-51
Dr Tim March, sports injury clinic
17Although Dr March reported on Ms Fraser’s unrelated lower back condition, he provided the following opinion on the consequences of long COVID to the lower back condition:
"She has long COVID and continues to get symptoms from this. As a result she has felt deconditioned and has been unable to play sports such as competitive tennis, which she played before the Covid. As a result she has developed a recurrent back issue, which has largely resolved, but she still gets some symptoms.”[12]
[12] PCB 54
18Ms Fraser described this as an ongoing vicious cycle from which she was unable to recover and she attributed this cyclical contribution of the long COVID to her physical condition, in a way that she described as a ‘Catch-22’.[13]
[13] T32 ꟷ T33
Professor Mark Douglas, Professor of infectious diseases and hepatic medicine
19Professor Douglas opined that, although the symptoms continued to improve slowly, the improvement had plateaued and there was likely to be a permanent impairment.[14] He described the symptoms which Ms Fraser, herself, described to the Court. In particular, the impact of the long COVID on her ability to function, to play tennis, to go for long walks with her dog, to engage in high intensity training or to do Pilates as she once did. There were also impacts on her sleep, ability to perform household chores and garden maintenance, and also on her intimacy with her husband. Professor Douglas considered all of those were consistent with the condition of which she was complaining.[15]
[14] PCB 74
[15] PCB 76-77
Professor Justin Denholm, infectious diseases physician
20Similarly, Professor Denholm observed Ms Fraser’s complaints of fatigue, impaired cognition, impaired sleep and other symptoms. He opined that those were all characteristics of the sequelae of the COVID-19 infection and their timing was consistent with the infection in July 2020. He observed that the symptoms had been stable for greater than twenty-four months.[16]
[16] PCB 96-98
Ms Fraser’s credit
21No submissions were made to the Court that Ms Fraser should not be accepted as a credible and reliable witness.[17]
[17] See T50 ꟷ T51
22It is trite to say that in applications such as this, the credit of the plaintiff is often of great importance, both directly and indirectly, as it enables the Court to make findings about the impact of the alleged condition, the consequences upon the plaintiff and their impact on her residual capacity.[18]
[18] See Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1
23I consider Ms Fraser to be an impressive witness. She answered questions directly, took care to clarify the question to ensure she was answering what was being asked, and she did so without exaggeration or excessive emotional expression.
24She gave her evidence earnestly and her body language appeared to be consistent with the words being spoken. She was very emotional when talking about her inability to participate in competition tennis.[19] I considered this was a genuine expression of her sentiment and a genuine response to the questions asked. It demonstrated the significance to her of the loss of this ability.
[19] In particular at T30 ꟷ T32
25I find her to be an honest and reliable witness and accept her evidence as to the consequences to her of the long COVID.
Issues and submissions
Ms Fraser’s submissions
26I accept the submissions on behalf of Ms Fraser that she is on a significant medication regime using a variety of prescription medications.[20] This has continued for some five years now. There does not seem to be any suggestion in the evidence of any intent to wean Ms Fraser off the medications in the foreseeable future. That, in itself, I consider could be a very considerable consequence. In combination with all of the others, it lends support for the proposition that Ms Fraser has established “very considerable” consequences.
[20] T82 ꟷ T83
27I also accept submissions on Ms Fraser's behalf that she has had ongoing treatment from a range of doctors,[21] which is likely to continue into and through the foreseeable future. This contributes to my assessment of Ms Fraser’s consequences as being “very considerable”.
[21] T82 ꟷ T83
28I accept that Ms Fraser is a stoic plaintiff and she should not be penalised for her stoicism.[22] She has done her best to return to work in a way that accommodates her limitations.
[22] T83
29I also accept that Ms Fraser has lost the ability to play tennis competitively and that what she has retained is not a mere reduction in that ability. She is now only able to participate on a limited basis, effectively hitting a ball around a court with eight or nine others. I consider the loss of ability to participate in competition tennis to be a very considerable consequence to her, as it was an activity which gave her a lot of enjoyment and helped maintain her fitness.[23]
[23] T61 ꟷ T62
The Defendant’s submissions
30There are some submissions of the defendant I also accepted, including that there was no real contest on the medicine and that the consequences are not trivial.[24]
[24] T58
31I accept the submission that any individual one of these consequences is unlikely to have satisfied the “very considerable” test, in fact, probably one or two together is unlikely to have satisfied the test.[25] However, I consider that the combination of them does satisfy the test.
[25] T58 ꟷ 59
Permanence
32Ms Fraser has had these symptoms and restrictions for five years now and the weight of the evidence supports a conclusion that they will continue into the foreseeable future.[26]
[26] T77
33I consider the need for daily medication to manage sleep, daily functions, urinary incontinence and pain could, on its own, amount to a very considerable consequence, especially given that it has been ongoing for five years and likely to continue indefinitely.
Impairment consequences
Consequences of the injury
Pain
34Ms Fraser described random stabbing pains throughout her body which occur intermittently. At times, they can affect her eyes or feet and can occur up to a dozen times a day. Following such an episode, the area affected becomes numb.[27]
[27] PCB 11
Medication and medical treatment
35Dr Tippett prescribed low-dose Naltrexone for pain and fatigue and Clonazepam for tremors. In August 2024, Dr Tippett reported having observed the tremors herself, which affected Ms Fraser’s hands and upper limbs.[28]
[28] PCB 46-47
Work capacity
36Although Ms Fraser has returned to work in her pre-injury duties, this is in a different capacity. She is now completely desk-bound. She is no longer working on a ward with patients and their families, rather she is managing nurses remotely. Further, she is required to take time off to rest and to recuperate approximately every three months and uses her long service leave for this purpose. This means that she's unable to enjoy that long service leave for the purpose for which it is generally understood to be intended. Ms Fraser feels the loss of her inability to work with patients on a ward, as she once did, which work activity she particularly enjoyed,[29] and I consider, in the Ellis sense,[30] this is a consequence of some significance.
[29] T17
[30] Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326
37Dr Tippett reported in June this year that Ms Fraser was unable to work the same hours, or in the same capacity, as before her illness. She could not tolerate standing for extended periods and required a desk-based position. Her cognitive function had been significantly impacted, affecting her ability to multitask and engage in the complex communication required for ward-based nursing. She could not tolerate the overstimulation from noise and lights and other stimuli which regularly occur in a ward environment.[31]
[31] PCB 51
Sleep
38Ms Fraser’s sleep is affected, she is on a range of medications to assist her to sleep and to reduce the effects of the tremors and pains at night.[32]
[32] T39
Mobility
39Ms Fraser’s mobility is not affected. She is able to drive a car and told the Court she travelled to New South Wales with a friend sharing the driving.[33]
[33] T49 ꟷ T50
40I reject the defendant's submissions that this speaks of her very good level of function.[34] The ability to drive a car does not require physical exertion. I consider that, although it bespeaks of some level of function, that is an ability to drive a car, it does not tell the Court much else.
[34] T73 ꟷ T74
Activities of daily living
41Due to fatigue, Ms Fraser experiences difficulty performing housework, needing regular breaks to do things like washing. She cannot do any housework on a day that she has been at work. She struggles to prepare meals on a regular basis, but she is able to otherwise attend to self-care. She has had to purchase additional equipment, such as a robotic cleaner, to help her with her housework.[35]
[35] T39
Sports and hobbies
42As I indicated during discussions with counsel, I consider there is a difference between loss and reduction. I consider Ms Fraser has lost her ability to participate competitively in tennis, but is able to hit a ball around a court. I consider this a significant difference in the two.[36]
[36] T61
43It was the competition tennis that gave her a lot of pleasure and enabled her to maintain a level of physical fitness which she no longer enjoys. This, according to Dr March, has also had an impact on her lower back.[37] Although she has returned to the tennis court, she is unable to play again.
[37] PCB 54
44Her weight has also increased. Dr Tippett reported as much as 12 kilograms since the onset of her condition,[38] which has been distressing for her and has contributed to negative feelings about her appearance.
[38] PCB 51
45I accept that her dog-walking abilities have not been lost, but rather reduced.
46In June of this year, Dr Tippett reported that Ms Fraser experienced significant distress due to her inability to engage in previously-enjoyed physical activities, especially playing tennis, which had been a significant source of frustration and also affected her mental wellbeing.[39]
[39] Ibid
47In June this year, Dr Tippett reported that Ms Fraser experienced significant distress due to her inability to engage in previously-enjoyed physical activities, especially playing tennis. This had been a significant source of frustration and affected her mental wellbeing.[40]
[40] Ibid
Conclusion
48Overall, I consider the combination of matters to which I have just referred amounts to “very considerable” consequences. Applying the value judgement required of me, I grant Ms Fraser leave to commence proceedings against her employer for pain and suffering damages.
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