Julier v Victorian WorkCover Authority
[2024] VCC 1889
•29 November 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-23-05856
| MICHELLE JULIER | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE CLARK | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 and 29 May 2024 | |
DATE OF JUDGMENT: | 29 November 2024 | |
CASE MAY BE CITED AS: | Julier v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1889 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – spinal injury – credit – disentanglement – pain and suffering
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), s335
Cases Cited:Johns v Oaktech Pty Ltd [2020] VSCA 10; Woolworths Ltd v Warfe [2013] VSCA 22; Siddel-Whipp v Transport Accident Commission [2020] VSCA 109; Peak Engineering & Anor v McKenzie [2014] VSCA 67; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz [2012] VSCA 60; Dressing v Porter & Anor [2006] VSCA 215; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Kesper v Victorian WorkCover Authority [2024] VSCA 237; Sutton v Laminex Group Pty Ltd (2011) 31 VR 100; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Brett KC with Mr G Pierorazio | Arnold Thomas & Becker |
| For the Defendant | Mr A Moulds KC with Mr C O’Sullivan | Russell Kennedy Lawyers |
HIS HONOUR:
Background
1The plaintiff, Michelle Julier, is thirty-five years of age. Ms Julier lives with her partner, Samir.
2Ms Julier commenced employment with 4Cyte Pathology Pty Ltd (“4Cyte”) in August 2020. Initially, Ms Julier was employed as a medical courier. In April 2021, she was promoted to the Victorian stores manager. Ms Julier said this work was heavy and repetitive.
3Prior to commencing work with 4Cyte, Ms Julier said she had suffered some neck and back problems and had received treatment.
4Ms Julier said she suffered injury to her neck and back while working with 4Cyte up to and including 9 September 2021.
5Ms Julier says by reason of her neck and back injuries she suffers ongoing pain and pain-related impairment. She says this impacts her in many ways. Ms Julier says she should be granted leave to pursue common law damages for pain and suffering.
6The Victorian WorkCover Authority (“the VWA”) is the worker’s compensation insurer for 4Cyte. It denies Ms Julier has suffered a serious injury.
The nature of the proceeding
7This is an application brought pursuant to s335 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”). Ms Julier relies upon paragraph (a) of the definition of “serious injury” in s325(1) of the Act. That is, her spinal injury is a “permanent serious impairment or loss of a body function”.
8For Ms Julier to be successful, she must establish that the consequences from her injury, when judged by comparison with other cases in the range of possible impairments or losses of body function, are “more than significant or marked” and “at least very considerable” as per the narrative test set out in s325(2)(b) and s325(2)(c) of the Act.
What are the issues for the Court’s determination?
9The VWA said:
(a) Ms Julier’s credit was impugned and her evidence was unreliable;
(b) Ms Julier had failed to disentangle;
(c) the matter was otherwise a range case and Ms Julier does not satisfy the test.
10That said, the issues for the Court to determine in this application include:
(a) Ms Julier’s credit and reliability and whether I accept her evidence;
(b) which of the medical opinions should be accepted and what assistance they provide;
(c) any disentanglement or other analysis necessary to properly identify the consequences flowing from the subject injury;
(d) does Ms Julier’s spinal injury satisfy the “serious injury” test?
What conclusion does the Court reach in respect to Ms Julier’s credit and reliability?
11As in a great number of cases of this type, Ms Julier’s credit and reliability is critical.[1]
[1]See, for example, the analysis of the Court of Appeal in Johns v Oaktech Pty Ltd [2020] VSCA 10, particularly at paragraph [76].
12The VWA said Ms Julier’s credit was impugned and there were aspects of her evidence which were not reliable. The attack included submissions:
(a) Ms Julier had not made proper disclosure of her business, Runway Rental Hampton (“Runway Rental”), in her first two affidavits, and a belated disclosure was made only as a consequence of the VWA’s service of a notice to produce;
(b) Ms Julier had made declarations on WorkCover Certificates of Capacity lodged with the authorised insurer which were not true;
(c) there was a clash between Ms Julier’s affidavit evidence, oral evidence and other materials.
13While Mr Brett conceded Ms Julier should have made disclosure of her business in her first two affidavits, he submitted:
(a) as to Runway Rental:
(i)there ought not be any blame at Ms Julier’s door as being deliberately deceptive;
(ii)in any event, the business was “not even a cottage industry”;[2]
[2]Transcript (“T”) 97, Lines (“L”) 24-25
(b) given the nature of Ms Julier’s business, it was not surprising she did not disclose this work and the income this business generated in her Certificates of Capacity and Ms Julier had disclosed other work;
(c) her presentation was generally as a witness of truth.
14I shall in my analysis of Ms Julier’s credit and reliability:
(a) review the evidence in respect to Runway Rental and set out my observations;
(b) review the evidence in respect to the Certificates of Capacity and set out my observations;
(c) undertake an analysis of aspects of Ms Julier’s oral evidence, affidavit evidence and histories to the doctors, which were said to clash and/or were unreliable, and set out my observations;
(d) detail my conclusions generally in respect to credit and reliability.
Runway Rental
15Moving firstly to the operation of Ms Julier’s business, Runway Rental.
16In her oral evidence, Ms Julier agreed:
(a) she commenced running Runway Rental in or about February 2023;
(b) the business rents out formal gowns;
(c) she continues to run the business;
(d) the business has grown over time.
17Ms Julier swore three affidavits in support of her application:
(a) the first on 20 June 2023;
(b) the second on 23 May 2024;
(c) the third on 28 May 2024.
18Ms Julier, in her evidence-in-chief, adopted the first two affidavits as being true and correct.[3]
[3]T7, L13-14 and T8, L3-4
19Ms Julier did not, in her first two affidavits, make any reference to Runway Rental.
20Ms Julier swore her third affidavit with the leave of the Court on the first day of the hearing of the application. In this affidavit, Ms Julier acknowledged her failure to refer to Runway Rental in her previous affidavits and she provided a level of detail in respect to the business operations.
21To gauge the importance of this omission by Ms Julier it is appropriate that I analyse the nature and extent of the business. This will provide context.
22In operating this business over a period of some sixteen months, Ms Julier said she:
(a) Researches the market.[4]
[4]T19, L24
(b) Sourced the gowns which the business rents. Indeed, Ms Julier sourced gowns from various sources, including:
(i)eBay;
(ii)Depop;
(iii)Facebook Marketplace;
(iv)Aje, Carla Zampatti, Vestiaire Collective and Rachel Gilbert.[5]
(c) Has dedicated a room in her home to store the 140 gowns in her collection. Ms Julier said these gowns are stored on rails similar to a store.
(d) Conducts photoshoots of models wearing her dresses.
(e) Writes the advertisements for, and organises the listing of, her business on various websites and social-media platforms including:
(i)The Volte;
(ii)Designerex;
(iii)Rent a Dress.
[5]Exhibit 8
(f) Has purchased various items of equipment to be used in the running of the business, including a Samsung washing machine which has air-dryer capacity, as well as storage drawers, a ladder, handbags and a Galaxy Samsung Tab 8.[6]
(g) Organises courier delivery of her gowns to her clients and the return through Australia Post.[7]
(h) Undertakes the laundering of the gowns or organises their drycleaning after they are returned by her clients.
(i) Undertakes repairs of the gowns.
[6]Exhibit 8
[7]Exhibit 8
23Ms Julier said in respect to the operation of the business:
(a) she works roughly half an hour per day;[8]
(b) as to its profitability or otherwise:
Q: “Were you making any money from your own business?---
A:No. Well, technically yes, but I was reinvesting, so I did not earn an income.”[9]
[8]T56, L19
[9]T56, L14-16
24As to the business’s finances, I have no material in evidence from Ms Julier’s accountant. Ms Julier said she had not provided her most recent financial materials to her accountant. What I do have in evidence are various spreadsheets which set out the income and expenses of the business up to 1 April 2024.[10]
[10]Exhibit 8
25I undertook an analysis of the income received by Ms Julier for the two months immediately prior to 1 April 2024. That is, for the period 1 February 2024 to 1 April 2024. Ms Julier received from:
(a) The Volte ꟷ $3,415.45;
(b) Designerex ꟷ $1,261.42;
(c) Rent a Dress ꟷ $148.95.
26From these three sources, in this two-month period, on my calculations Ms Julier received $4,825.82 gross. Reducing this to a weekly figure, Ms Julier received $556.83 per week. I appreciate from this there needs to be deducted relevant expenses.
27Having considered the nature and financial returns of Ms Julier’s business, I do not accept Mr Brett’s submission Runway Rental is “not even a cottage industry”.
28What I accept is:
(a) This is a business for which considerable thought and effort has been dedicated by Ms Julier.
(b) Due to Ms Julier’s efforts and capacity the business has grown.
(c) The business is one which is now operating at a reasonable level of sophistication.
(d) The business constitutes a significant part of Ms Julier’s life.
(e) Ms Julier undertakes the manual handling associated with the business.
(f) Ms Julier has accumulated a capital base within the business (that is, 140 gowns and various other items of infrastructure) upon which the business continues to successfully trade.
(g) The income generated by Runway Rental is not an insignificant amount. Indeed, in the two months prior to 1 April 2024, on my calculations it was in excess of $550 per week.
(h) Ms Julier was aware Runway Rental was making money.
(i) The operation of Runway Rental and the income it generated should have been:
(i)included in Ms Julier’s first two affidavits;
(ii)disclosed to the authorised insurer and included in the Certificates of Capacity;
(iii)disclosed by Ms Julier to her treating health service providers and the medico-legal assessors.
29Put simply, Ms Julier’s operation of this business is a relevant and important factor in the determination of her serious injury application. The failure to disclose the work in operating Runway Rental and the income generated was a serious failure by Ms Julier.
The Certificates of Capacity
30Turning now to the Certificates of Capacity.
31I have in evidence a bundle of WorkCover Certificates of Capacity forms.[11] They date between 28 December 2022 through to 2 April 2024.
[11]Exhibit 4
32While Ms Julier declared that she had worked with Bond Melbourne/The Collective Establishments and Rachel Gilbert, at no time did she declare the work undertaken in, nor the income generated by, Runway Rental.
33Mr Brett submitted that, given the nature of Ms Julier’s business, it is not surprising she did not make reference to Runway Rental in her declarations. I disagree.
34I accept Ms Julier to be an intelligent, capable and worldly person. I accept she:
(a) presented as such when giving her oral evidence;
(b) operates a business which I accept to be relatively sophisticated;
(c) is currently employed in a job with The Collective Establishments, which requires a range of high-level skills and which carries with it a level of responsibility.[12]
[12]See Exhibit 6 and in particular the job description and the identification of roles and responsibility.
35Given what I accept in respect to Ms Julier’s operation of Runway Rental and her general level of function, it ought to have been clear to her that she (and I will adopt the wording in the WorkCover Certificate of Capacity Declaration)[13] has engaged in self-employment for which she received, or had been entitled to receive, payment of money or otherwise.
[13]See Part 7 of the Worker Declaration in the WorkCover Certificate of Capacity forms found in Exhibit 4.
36Ms Julier should have made disclosure to the authorised insurer of the work which she was undertaking in the operation of Runway Rental and should have declared that work and income in her WorkCover Certificates of Capacity.
Ms Julier’s evidence and other materials
37The VWA said there was a “clash” between Ms Julier’s affidavit evidence, oral evidence and other material.
38I will review a number of examples which were either referred to by Mr Moulds or caught my attention when reviewing the evidence.
39Moving firstly to driving and sitting tolerances.
40Going to the driving tolerances. In her first affidavit, Ms Julier said driving for more than an hour was difficult and she struggled performing head checks. Ms Julier said, in her second affidavit, if she was going on a long trip of more than an hour, she generally took her gel cushion with her.
41In her histories to various doctors, Ms Julier said, for example:
(a) to consultant orthopaedic surgeon, Dr Francis Ghan, “she is able to drive short distances”;[14]
(b) to occupational physician, Dr Robyn Horsley, her sitting tolerance is twenty minutes and her driving tolerance is about an hour with a gel cushion.[15]
[14]Defendant’s Amended Court Book (“DACB”) 33 and DACB 34
[15]Plaintiff’s Court Book (“PCB”) 54
42This can be contrasted to her oral evidence, where Ms Julier said:
(a) She attended the Harvest Rock festival in Adelaide. She and her friend shared the driving between Melbourne and Adelaide, and return.[16]
(b) She and Samir drove from Los Angeles to Las Vegas.[17]
(c) She drives three-and-a-half hours to visit her parents in Lakes Entrance.[18]
(d) If she drives for less than hour, she does not need to use her gel cushion.[19]
[16]T40, L23
[17]T42, L1-4
[18]T51, L24-25
[19]T51, L21-22
43That takes me to sitting tolerances generally.
44In her affidavit evidence, Ms Julier said:
(a) if she went to a show, or to dinner, she had to be careful; and
(b) she had to utilise Gold Class at the movies, otherwise she doubted she could sit through a movie.
45In her oral evidence, Ms Julier said her sitting tolerances had improved and she could now sit in a normal seat at the movies.[20] Ms Julier said she now attends Gold Class only because she chooses to.
[20]T43, L16
46It is also appropriate to note that Dr Horsley attributes Ms Julier’s limited sitting tolerances to a coccygeal injury which occurred in May 2022. I will analyse this in greater detail later in this judgment.
47In respect to Ms Julier’s driving and sitting tolerances, there is tension between Ms Julier’s oral evidence, affidavit evidence, and her histories to doctors.
48Moving now to social life.
49In her first affidavit, Ms Julier said her ability to socialise has been “significantly compromised” by her spinal injury.[21]
[21]Paragraph [60] at PCB 18
50Ms Julier told Dr Ghan that she can stand less than ten minutes.[22]
[22]DACB 33 and DACB 34
51Ms Julier, in her oral evidence, said:
(a) She still socialises with friends.[23]
[23]T50, L4
(b) She still attends nightclubs and places.[24]
[24]T50, L6-7
(c) She was able to travel to Adelaide to attend the Harvest Rock festival, where she had VIP tickets and enjoyed herself very much.
(d) She regularly goes to the beach in summer and continues to go snorkelling.
(e) Agreed she does not have any trouble dancing. Indeed, she said, “I don’t have issue (sic) moving around”.[25]
(f) She visited the wineries in South Australia with her friend.
(g) When in America, attended:
(i)a Katy Perry concert;
(ii)casinos;
(iii)magic shows;
(iv)Universal Studios;
(v)other tourist destinations.
[25]T40, L5-7
(h) In both America and Mexico, went out for dinner.
I do not accept Ms Julier’s admitted level of social activity constitutes a “significant compromise”.
52Again, there is clear tension between Ms Julier’s oral evidence, her affidavit evidence, and the histories which she provided to doctors.
53Going now to domestic activities.
54In her first affidavit, Ms Julier said she struggled with chores and was able to manage to cook smaller meals.[26] Ms Julier said, “we now rely a lot on take-away”.[27]
[26]Paragraph [54] at PCB 17
[27]Ibid
55Ms Julier, in her second affidavit, said she continued to be restricted in terms of chores, as set out in her previous affidavit.
56Dealing firstly with cooking.
57In her oral evidence, Ms Julier said:
(a) she still cooks meals;
(b) she now tries to limit her time cooking to thirty minutes;
(c) there are times when, after a long day and her back is sore, it is easier ordering takeaway;
(d) there are times when she and Samir do not want to cook and they order takeaway;
(e) that she orders takeaway three to four times per week;
(f) prior to 4Cyte, she was getting takeaway two times per week.
58Moving to the other household chores generally.
59To the medical practitioners, Ms Julier told:
(a) Dr Horsley she struggles with the housework and she gains assistance from her partner;
(b) Dr Ghan she struggles with housework.
60Ms Julier, in her oral evidence, said she:
(a) did not need a housekeeper;
(b) did the majority of the duties;
(c) would clean the house, do the dishes and the washing.
61I note in the context of the operation of her business, Ms Julier said she had purchased a Samsung washing machine and used it to launder her gowns.
62Again, there is a level of tension between Ms Julier’s oral evidence, her affidavit evidence, and the histories which she provided to doctors.
63Turning to sporting activities.
64In her affidavit evidence, Ms Julier said:
(a) she was not able to get back snowboarding;
(b) she would struggle with scuba diving;
(c) she can swim okay.
65Ms Julier told Dr Ghan she does not participate in any sport.[28]
[28]DACB 34
66None of the doctors recorded a history of Ms Julier continuing to snorkel or go dancing without restriction.
67In her oral evidence, Ms Julier said she was unable to go snowboarding and scuba diving. However, Ms Julier said:
(a) that she went snorkelling in Mexico;
(b) she retained her scuba equipment and she still uses it for snorkelling;
(c) she can dance and move around without difficulty.[29]
[29]T40, L5-7
68Again, there is tension between Ms Julier’s affidavit evidence, her oral evidence, and the histories which she has provided to doctors.
69Moving now to work.
70Ms Julier said, in her second affidavit, she did not work full hours and did not know if she could manage to do so.[30]
[30]Exhibit “A” at paragraph [21]
71Referring to Dr Horsley’s evidence.
72Dr Horsley said Ms Julier:
(a) was certified fit for full-time hours by her general practitioner;
(b) told her she would prefer to increase to full hours with her current employer;
(c) told her she had been unable to return to dressmaking for any extended period of time.[31]
[31]PCB 51
73Ms Julier did not tell any of the doctors she was operating Runway Rental. Ms Julier did not tell any of the doctors:
(a) she effected the repairs to her gowns;
(b) she undertook laundering of her gowns;
(c) she attended to the couriering to and return of the gowns from clients;
(d) of the other activities involved in the running of the business.
Ms Julier should have advised the doctors who assessed her (including her general practitioner) of her activities operating Runway Rental.
74Ms Julier has recently commenced employment in her current role. The job demands are set out in the job description.[32] In her oral evidence, Ms Julier said her employer expects her to work four days per week in this role, being three full days and two half days.[33]
[32]Exhibit 6
[33]T53, L1-16
75On top of the work with The Collective Establishments, Ms Julier operates her business Runway Rental. This is evidence which none of the medical practitioners who have assessed Ms Julier had the benefit of or factored into their opinions.
76In respect to work capacity, again there is tension between Ms Julier’s affidavit evidence, her oral evidence, her histories to the doctors and the reality of her circumstances.
77The examples which I have referenced disclose a trend. There is, I accept, clear tension between:
(a) many assertions made by Ms Julier in her affidavit evidence;
(b) her actual level of activities;
(c) her histories to the doctors;
(d) what Ms Julier said in her oral evidence.
78It follows that I accept Mr Moulds’ submission that there is a “clash”. This submission has merit.
What conclusions do I reach in respect to Ms Julier’s credit and reliability?
79Moving to my conclusions in respect to Ms Julier’s credit and reliability.
80There was significant focus in the course of the application on Ms Julier’s operation of Runway Rental. Quite properly so.
81The failure to disclose Runway Rental in the first two affidavits, in the Certificates of Capacity, to the WorkCover authorised insurer and to the numerous assessing doctors, is, I accept, a serious matter. The failure goes not only to credit and reliability, but also to function and consequences. Put simply, this failure troubles me significantly and impacts adversely on my overall assessment of Ms Julier’s credit and reliability.
82Further, I accept there is merit in the VWA’s submission that there is a clash between Ms Julier’s affidavit evidence, her oral evidence, and her histories to medical practitioners. Ms Julier, in her first two affidavits and in many of the histories provided to the assessing doctors, placed great emphasis on what she alleged she cannot do. However, when the VWA “scratched the surface” in cross-examination and tested Ms Julier’s actual level of activities, a different picture emerged. I refer specifically to the trip to South Australia as being indicative and highly relevant. I also note Ms Julier’s capacity to:
(a) drive long distances;
(b) dance and move without restriction;
(c) go snorkelling;
(d) participate in a wide range of social activities;
(e) sit through movies without the need for Gold Class;
(f) undertake housework.
83I formed the conclusion that Ms Julier:
(a) Was keen to ensure that the doctors who assessed her, and the Court, were not under any doubt she has suffered, and continues to suffer, very significant pain and pain-related impairment. There was great focus on what she alleged she cannot do. Indeed, within the evidence before the Court, there were clear examples of overstatement.
(b) Did not provide a balanced view of her actual level of activities. Ms Julier’s level of activities are greater than the picture she endeavoured to paint.
84These conclusions impact adversely on credit generally, and introduce significant doubts in respect to the reliability of her complaints generally.
85It is through this lens that I assess this application.
Which of the medical opinions should be accepted, and what assistance do they provide?
The process to be followed
86I move now to my analysis of the medical evidence. I shall:
(a) firstly review the treating health service provider materials;
(b) then review the medico-legal evidence.
87Before I move to this analysis, it is appropriate I make some preliminary observations in respect to the medical evidence generally.
88It is well established in applications such as this that, where the factual matrix upon which the medical opinions have been formed is unreliable, care must be given to the weight to be attributed to them.[34] As I have already noted, the medical practitioners:
(a) were advised by Ms Julier of levels of alleged pain and alleged pain-related restrictions which painted a very grim picture;
(b) did not have the benefit of the particulars of the full range of activities which Ms Julier actually undertakes.
[34]See for example the analysis in Woolworths Ltd v Warfe [2013] VSCA 22 (“Warfe”) at paragraph [112] and Siddel-Whipp v Transport Accident Commission [2020] VSCA 109 at paragraphs [144]-[145]
89This impacts on the weight to be given to such evidence.
The treating medical practitioner evidence
90Moving now to my analysis of the treating medical practitioner evidence. I had in evidence reports from:
(a) Dr Amirhadi Masoudi, general practitioner, dated 24 June 2022, 15 September 2022, and 19 February 2024 (I also had a bundle of WorkCover Certificates of Capacity constituting Exhibit 4);
(b) Dr Dale Comrie, chiropractor, dated 20 July 2022 and 1 December 2023;
(c) Ms Listiyani Astuti, Chinese medicine practitioner, dated 1 March 2024;
(d) Mr Beau Calderon, physiotherapist, dated 8 May 2024.
91I shall review this evidence in this order.
Dr Masoudi
92In his first report, Dr Masoudi said Ms Julier:
(a) Presented to him on 12 September 2021 complaining of acute onset lower back pain after heavy lifting at work.
(b) Had previously been diagnosed with spinal scoliosis as a teenager, but denied any back issues for years.
(c) Had a current diagnosis of lumbar spine degeneration and L2-3 and L5-S1 discopathy.
(d) Suffered lower back pain which is now chronic and currently stabilised.
(e) With the use of occasional painkillers and regular chiropractic and osteopathic input, her pain was under reasonable control.
(f) Had no need for any specialist input at this stage.
(g) Had limited restriction related to her back. She should avoid lifting greater than 10 kilograms and avoid repetitive bending, squatting and kneeling. She should also avoid long periods of sitting or standing.
(h) Had a prognosis which was good and her condition was expected to show slow progress over the next few years.
93Dr Masoudi said he believed Ms Julier’s back pain should have limited impact on her life and work at this stage.
94Dr Masoudi, in his first report, also made reference to the alleged work-related bullying which resulted in Ms Julier suffering depression and anxiety. Dr Masoudi said this affected Ms Julier’s mental health and she required specialist input for this condition.
95Dr Masoudi, in his second report, responded to a series of questions posed by Ms Julier’s solicitors.
96Dr Masoudi again set out the history of lower back injury in early September 2021 and said that Ms Julier had been off work until November 2021, when she commenced a return to work program.
97Dr Masoudi said that, unfortunately when Ms Julier returned to work on modified duties, she was subject to abuse, bullying and intimidation. Dr Masoudi said this resulted in stress, poor sleep, anxiety, low mood, agitation, poor concentration, anhedonia, and low energy.
98Under the heading “Diagnosis”, Dr Masoudi said Ms Julier was suffering an adjustment disorder with anxiety and depressive symptoms. (Seemingly this report was principally for Ms Julier’s psychological injury.)
99At the time of the second report, Ms Julier was working four days per week. Dr Masoudi said that Ms Julier’s work-related restrictions were:
(a) not lifting greater than 5 kilograms;
(b) avoiding repetitive bending, squatting or kneeling;
(c) avoiding overhead repetitive activity and lifting greater than 2 kilograms overhead.
100Dr Masoudi said Ms Julier used to enjoy snowboarding and adventure activities which are currently restricted.
101In respect to work, Dr Masoudi said Ms Julier is currently lacking confidence to take bigger work responsibilities.
102Moving now to Dr Masoudi’s final report. Dr Masoudi, under the heading “Diagnosis”, said Ms Julier was suffering:
(a) chronic axial mechanical low back pain with peripheral and central sensitisation;
(b) chronic axial mechanical neck pain;
(c) nociplastic pain affecting upper and lower limbs;
(d) adjustment disorder with low mood and anxiety-related symptoms.
103Dr Masoudi set out a range of ongoing symptoms and consequences, including:
(a) chronic fluctuating neck pain and lower back pain;
(b) chronic pain and muscle stiffness of her left arm and left leg, which she describes as sciatica pain;
(c) sensory symptoms – pins and needles affecting her left foot and left hands;
(d) intermittent left upper limb weakness;
(e) significantly affected sleep;
(f) an inability to perform repetitive bending, squatting and kneeling, and difficulty lifting heavy objects;
(g) limitations in daily activities, as Ms Julier cannot stand for a long time or walk long distances, or sit in certain positions for a long time;
(h) difficulty cooking;
(i) having stopped scuba diving;
(j) having stopped wearing high heels;
(k) problems putting on and taking off tight clothing as it exacerbates neurological symptoms.
104In respect to Ms Julier’s psychological symptoms, Dr Masoudi said she continued to report anhedonia, anxiety, panic symptoms, poor concentration, poor sleep and low mood.
105Dr Masoudi said that Ms Julier should start rehabilitation with Dr Safa Hamza at the Victorian Rehabilitation Centre.
106Dr Masoudi said the employment options provided by Nabenet (I have not seen this report) were realistic and good options for Ms Julier.
107Dr Masoudi said Ms Julier had experienced a meaningful improvement in her symptoms by acupuncture treatment over the last few months. This positively affected both her physical and psychological symptoms, and Dr Masoudi said he believed those sessions should be continued.
108Dr Masoudi said he believed Ms Julier should restart psychotherapy.
109For completeness, I note the Certificates of Capacity authored by Dr Masoudi and included in the evidence. The most recent certificate in Exhibit 4 is dated 2 April 2024.
110I pause here to note that Dr Masoudi:
(a) identified quite an extensive list of restrictions for Ms Julier;
(b) has not detailed what Ms Julier told him in respect to the activities she is in fact undertaking.
111One of the difficulties in applications of this type is that medical practitioners are invariably not cross-examined and their opinions thoroughly tested. The Court is not privy to just what the medical practitioner has been told by their patient and the basis upon which their opinions are formed.
112For example, Dr Masoudi placed a 20-kilometre limitation on how far Ms Julier’s workplace should be from her home. Presumably this is based on Ms Julier’s reported sitting and driving tolerances. A 20-kilometre limitation is in direct conflict with Ms Julier:
(a) driving to Adelaide and return;
(b) driving three-and-a-half hours to Lakes Entrance;
(c) sitting through a movie.
113I also note Dr Masoudi’s diagnosis of nociplastic pain affecting the upper and lower limbs. Ongoing pain to both arms and both legs was not maintained by Ms Julier in her oral evidence. Further, the restrictions asserted by Dr Masoudi would appear to run directly in the face of Ms Julier’s oral evidence that she is able to dance and move in an unrestricted manner, and to be contrary to the general levels of activity admitted by Ms Julier in cross-examination.
114I will have more to say in respect to such matters when setting out my conclusions regarding the overall medical evidence. However, given the importance in such applications of the general practitioner’s evidence, it is appropriate I make these observations at this time.
Dr Comrie
115Moving now to the evidence of Dr Comrie.
116In his first report, Dr Comrie said Ms Julier returned to his clinic on 9 September 2021, giving a history of a work-related injury that day. Dr Comrie said, from Ms Julier’s history and his program of examination, his diagnosis was that of an L5 disc sprain and lower lumbar facet sprain with myofascial sprain. Dr Comrie did not provide any history of Ms Julier’s previous attendances at his clinic.
117I pause here to note that Ms Julier, in paragraph 9 of her first affidavit, said she consulted Dr Comrie in November 2017 for neck and back pain.
118Dr Comrie, in this first report, set out in detail the conflict which Ms Julier experienced at the time of her return to work, and said that anxiety, stress, and burnout were a major issue. Indeed, Dr Comrie said:
“… the greatest confounder to her recovery and a successful RTW has been an employer relationship, where [Ms Julier] doesn’t feel supported, she has been bullied and where she has been told no suitable/alternative work duties could be found; ... .”[35]
[35]PCB 33
119As at July 2022, Dr Comrie said:
(a) Ms Julier’s condition continues to improve;
(b) he was confident Ms Julier would make a good recovery towards pre-injury status;
(c) in the long term, he did not believe Ms Julier will have issues that significantly impact social activities;
(d) Ms Julier would have a period where she has to avoid activities which aggravate her condition, but this was manageable;
(e) Ms Julier had been fit for full-time work for some time, but it was the psychological issues that had limited her work capacity;
(f) Ms Julier had been physically capable of a program for return to work, but that had not occurred because the employer could not find duties away from her harasser.
120Dr Comrie’s second and final report was provided in December 2023. Dr Comrie had been asked to provide comments in response to the report from Dr Majid Rahgozar, occupational physician, who had reported to the VWA.
121Dr Comrie said “the most significant barrier to recovery and a successful return to work was psychosocial”.[36]
[36]PCB 36
122Dr Comrie went on to say that he laid the concurrent mental health condition stated in Dr Rahgozar’s report squarely on Ms Julier’s employer.
123Dr Comrie then said:
“Unlike Dr Rahgozar, I do not believe Ms. Julier’s injuries have resolved. They have become chronic in nature. There are many reasons for the progression to chronic injury, some being the chronic nature of overload and strain injuries that compound in poorly managed situations and in no small way due to the mental health issues cause (sic) by her workplace.”[37]
(Emphasis added.)
[37]PCB 37
124Dr Comrie said Ms Julier was not fit for long hours of manual work. Dr Comrie went on to say:
“... there is still a need for some involvement of physical therapy in the short to medium term as she takes on greater work load and to assist her to achieve a good biopsychosocial recovery.”[38]
[38]PCB 38
Ms Astuti
125Ms Astuti said Ms Julier presented to her with:
(a) sciatica-like symptoms from her lower back radiating down to her left leg;
(b) right-sided neck pain;
(c) coccyx pain.
126Ms Astuti also said Ms Julier suffered:
(a) mental health concerns arising from work stress contributing to anxiety and insomnia;
(b) gastrointestinal symptoms;
(c) a history of endometriosis.
127Ms Astuti said the comprehensive treatment plan which she developed includes acupuncture, cupping, herbal medicine and lifestyle modifications to primarily address the chronic pain and inflammation for Ms Julier’s lower back and neck, and secondarily to support her blood circulation, nervous system, gastrointestinal system, and sleep health, in order to support her overall recovery.
128Ms Astuti said that, after completing six sessions, Ms Julier demonstrated notable improvement across all symptoms.
129Ms Astuti also said:
(a) on 27 June 2023, Ms Julier reported exacerbation of neck pain and headache following a lifting incident at her workplace;
(b) at that time her lower back and coccyx pain seemed to be manageable;
(c) on 15 August 2023, after returning from a trip abroad, Ms Julier experienced flare-ups of her lower back, coccyx and neck, and headache symptoms.
130Ms Astuti said, during the last two sessions on 20 November and 4 December 2023, all pain symptoms in Ms Julier’s lower back, left leg and neck recurred without resolution or relief from treatment.
131Ms Astuti said Ms Julier had not returned for further treatment since 4 December 2023.
132In conclusion, Ms Astuti said of Ms Julier’s condition:
“… Chronic pain condition is influenced by a lot of life factors and may contribute to fluctuations of her presenting pain symptoms.
[Ms Julier] has demonstrated promising progress after completing her initial six sessions, positively influencing both her physical and mental well-being. Continued treatment, monitoring and assessment are recommended to manage her symptoms, preventing further exacerbation of the condition, promote long-term healing and improve quality of life.”[39]
[39]PCB 44
Mr Calderon
133Mr Calderon said he first consulted Ms Julier on 27 March 2024.
134Mr Calderon said Ms Julier told him “the neck issue has long since resolved”.[40]
[40]PCB 45
135Mr Calderon said, having reviewed the 7 February 2024 MRI scan of Ms Julier’s neck and thoracic spine, that the original neck injury has “likely completely resolved”.[41]
[41]Ibid
136Mr Calderon said Ms Julier’s main complaint was pain radiating down her left leg. Mr Calderon recorded positive straight leg raising.
137Mr Calderon said he reviewed the MRI scan of Ms Julier’s lumbar spine taken back in 2021. Of the abnormalities shown in that scan, Mr Calderon said:
(a) such abnormalities are commonly seen in Ms Julier’s demographic;
(b) they may be a possible cause of lumbar pain which radiates down the left leg.
138Specifically, Mr Calderon said the MRI scan revealed abnormalities not causing any impingement, although it is possible impingement may occur when the back is placed in different positions, such as sitting or standing for long periods of time. Mr Calderon also provided an alternative diagnosis of pelvic/hip dysfunction. Mr Calderon did not comment on the likelihood or causation of such a condition.
139Mr Calderon said Ms Julier should avoid jobs and activities which require intense physical labour, heavy lifting, high impact or excessive bending.
140Mr Calderon went on to say Ms Julier:
“... should be able to perform most activities of daily living and community activities provided that she manages her posture, body mechanics, and improves the strength and stability in the core muscles and extensors of the lumbar spine.”[42]
[42]PCB 46
141Mr Calderon concluded:
(a) Ms Julier will be able to learn how to manage the vulnerabilities and pain in her back and should be able to function normally in her day-to-day activities and at work;
(b) given her age and willingness to cooperate with home exercises, Ms Julier should have a good prognosis with improvement in her condition.
142Mr Calderon, who is Ms Julier’s current manual therapist, expressed a positive outlook with:
(a) normal function in day-to-day activities and work;
(b) a good prognosis.
The medico-legal evidence
143Moving now to the medico-legal evidence.
144In chronological order I had the following reports in evidence:
(a) Dr Graeme Doig, orthopaedic surgeon, 19 December 2022;
(b) Dr Ghan, 8 September 2023;
(c) Dr Horsley, 4 October 2023;
(d) Mr Russell Miller, orthopaedic surgeon, 9 November 2023;
(e) Dr Rahgozar, 10 November 2023;
(f) Mr Miller, 14 February 2024.
145I shall review this evidence in this order.
Dr Doig
146Going firstly to Dr Doig’s evidence.
147Dr Doig examined Ms Julier on 5 December 2022 for the VWA.
148Dr Doig said, under the heading of “Current Complaints/Symptoms”:
“Ms Julier’s main complaint is right-sided neck pain, particularly in the trapezius muscle, with intermittent paraesthesia affecting her left arm. She also experiences niggling lower-back/buttock discomfort.”[43]
[43]PCB 69
149I pause here to note, in cross-examination, Mr Moulds put this history to Ms Julier. Ms Julier said:
Q:“‘Ms Julier’s main complaint is right-sided neck pain, particularly in the trapezius muscle with intermittent paraesthesia affecting her left arm. She also experiences niggling lower back/buttock discomfort’”?---
A:Yes.
Q:Would that be correct?---
A:Yes.”[44]
(Emphasis added.)
[44]T55, L20-25
150In re-examination Ms Julier said at that time her neck was more painful than her back was.
151Moving now to Dr Doig’s clinical examination.
152Relevant to Ms Julier’s lower back, Dr Doig said:
(a) On examination Ms Julier was a slim, fit, young lady who walked comfortably into his consulting rooms in no distress, with no evidence of a limp.
(b) There was no deformity or tenderness. Ms Julier could flex to her lower shins and touch the floor with hips slightly abducted. Lateral flexion and rotation was symmetrical. Ms Julier demonstrated good extension at 30 degrees. There was no evidence of guarding, dysmetria or muscle rigidity. Straight leg raising was full with negative nerve-root tension signs and there was no focal neurological deficit in the lower limbs. Ms Julier could walk on her heels and toes and perform a satisfactory squat.[45]
(c) Dr Doig’s diagnosis was a soft-tissue injury to the neck, particularly the right trapezius muscle and left-sided lower back with pre-existing early degenerative change. Dr Doig said Ms Julier continues to suffer from primarily right-sided neck pain.
(d) Dr Doig said Ms Julier’s prognosis was reasonably good.
[45]DACB 70
153Dr Doig, in respect to Ms Julier’s lower back condition, obtained a history of modest injury and on clinical examination recorded no abnormalities of significance.
Dr Ghan
154Dr Ghan assessed Ms Julier on 29 August 2023 for the VWA.
155Dr Ghan obtained a history that was generally consistent with the other assessors. That is:
(a) Ms Julier stopping work in 2021 as a result of neck and lower back pain;
(b) after a period off work Ms Julier returned to work on light duties with 4Cyte;
(c) Ms Julier being subject to bullying upon her return to work and ceasing work because of this.
156At the time of Dr Ghan’s assessment, Ms Julier had been working in retail with Rachel Gilbert.
157As to her current status Dr Ghan recorded Ms Julier telling him:
“Ms Julier reported that she is still seeing a chiropractor every two to three weeks. She still sees her acupuncturist every two weeks. She reported ongoing neck and back ache. She is able to drive short distances. She reported neck ache and backache at 5/10. She can walk up to one hour. She can stand less than 10 minutes. Her sleep is disturbed. She does not play any sport. She struggles with housework.”[46]
[46]DACB 31
158At the time of his clinical examination of Ms Julier Dr Ghan noted:
“Physical examination revealed a young female standing 167 cm, weighing 72kg. She was observed to walk normally with no limp at normal speed. Her general body demeanour indicated no pain.”[47]
[47]Ibid
159Relevant to Ms Julier’s cervical spine Dr Ghan said:
(a) on standing, Ms Julier’s cervical spine had normal alignment;
(b) Ms Julier’s cervical spine had a full range of motion, full flexion, full extension, full rotation and full lateral flexion;
(c) there was no evidence of muscle guarding or irritability;
(d) he detected no radiculopathy in the upper limbs with normal motor power Grade 5;
(e) the reflexes were equal and symmetrical in the upper limbs;
(f) there was no significant tenderness.
160Relevant to Ms Julier’s lumbar spine, Dr Ghan said:
(a) on standing Ms Julier’s thoracolumbar spine had normal alignment;
(b) lumbar flexion was 90 degrees, extension 20 degrees, lateral flexion 20 degrees bilaterally;
(c) there was no reversal of rhythm and no evidence of discogenic mechanical instability;
(d) Ms Julier was able to stand on her toes and her heels;
(e) Ms Julier was able to get on and off the couch easily;
(f) in a supine position, Ms Julier’s straight leg raising was to 90 degrees with negative Lasegue’s sign;
(g) reflexes were equal and symmetrical in the lower limbs;
(h) there was no significant tenderness.
161Referring to the MRI scans which had been undertaken, Dr Ghan said he was unable to define any work-related pathology. In respect to Ms Julier’s lumbar spine in particular, Dr Ghan said the scan exhibited essentially age-related degenerative change.
162It was Dr Ghan’s opinion:
“In my opinion, there is no evidence of discogenic mechanical instability or sciatica of the lumbar spine and there is no evidence of any pathology in the cervical spine. I do not see any reason for ongoing treatment in the absence of any definite pathology. In my opinion the prognosis is excellent for the neck and lower back. In my opinion she is fit to continue working in her pre-injury duties and hours.”[48]
[48]DACB 32
163Dr Ghan went on to say he considered the cause of Ms Julier’s complaints of ongoing pain as “inexplicable”.[49]
[49]DACB 34
164Dr Ghan said Ms Julier’s conditions can be considered non-organic.
165Put bluntly, Dr Ghan was not prepared to accept Ms Julier as suffering any ongoing organic work-related spinal injury.
Dr Horsley
166Dr Horsley examined Ms Julier on 4 October 2023 for her solicitors.
167The relevant past history referred to by Dr Horsley included:
(a) Ms Julier being diagnosed with scoliosis as a teenager.
(b) Ms Julier suffered endometriosis requiring two rounds of laparoscopic surgery.
(c) A fall which occurred when Ms Julier was “out and about” one evening in May 2022. Dr Horsley said Ms Julier had become unstable on her feet and fell on her bottom. Ms Julier told Dr Horsley she experienced coccyx discomfort at the time and continues to suffer coccyx discomfort.[50]
[50]PCB 51 under “Past Medical History”
168I pause here to note that Ms Julier, in her second affidavit, said this incident occurred at a time she was wearing high heels. Ms Julier sought to attribute the incident to back pain she was suffering at the time. That aspect of the history was not recorded by Dr Horsley.
169Dr Horsley said at the time of her assessment Ms Julier was:
(a) certified by her general practitioner as being fit for full-time hours;
(b) working with The Collective Establishments on a casual part-time basis.
170Dr Horsley said Ms Julier told her:
(a) she is hopeful she will be offered full-time hours with her current employer;
(b) if she was offered increased hours she would take them;
(c) it was her preference to increase to full-time hours with her current employer, rather than seek alternative employment with another employer.
171It is clear at this time Ms Julier was hopeful for, and indeed considered herself capable of, working full-time hours with The Collective Establishments.
172Ms Julier reported to Dr Horsley an extensive list of current symptoms and limited tolerances. These included:
(a) sitting twenty minutes;
(b) static standing ten to fifteen minutes;
(c) driving about an hour.
173Ms Julier told Dr Horsley her pain varies from a base of 4/10 to 8/10 if she undertakes physical activities.
174Dr Horsley said Ms Julier told her the sitting tolerances were more affected by the coccygeal pain which relates to the May 2022 incident.
175Dr Horsley obtained a history of ongoing psychological symptoms including:
(a) regular nightmares;
(b) flashbacks;
(c) being emotional and tearful;
(d) being hyperalert.
176On clinical examination Dr Horsley recorded:
(a) some diffuse tenderness on light touch palpation centrally throughout the lumbar spine;
(b) there was no paraspinal muscle spasm;
(c) Ms Julier’s scoliosis was not obviously apparent from general clinical examination and it must be very mild;
(d) a forward flexion of the lumbar spine was to mid-tibia about 100 degrees;
(e) extension was normal and left and right lateral rotation were mildly limited in the last 5 to 10 degrees;
(f) peripheral nervous system examination was normal with attention to light touch, power, tone, reflexes, vibration and temperature sensation;
(g) straight leg raising was 80 degrees bilaterally;
(h) the slump test was 90 degrees bilaterally;
(i) Ms Julier’s gait was normal;
(j) Ms Julier was able to walk on her toes and heels;
(k) Ms Julier was able to fully squat.
177I pause here to note that Dr Horsley did not record symptoms of the cervical spine.
178Returning back to Dr Horsley’s summary and diagnosis of Ms Julier’s lumbar spine. Dr Horsley said:
(a) Ms Julier has underlying pre-existing low-grade mild degenerative change in the lumbar spine;
(b) there is no evidence of an acute discal lesion or neural compression radiologically;
(c) Ms Julier presents with ongoing mechanical back pain and intermittent referred left leg pain;
(d) there are no radicular features on clinical examination;
(e) Ms Julier has developed a chronic pain syndrome;
(f) Ms Julier sustained an injury to her coccyx in a fall in May 2022, which she has self-managed with a gel cushion.
179Dr Horsley also made reference to the alleged bullying and harassment which Ms Julier told her occurred upon her return to work in November 2021. Dr Horsley undertook a Beck Depression Inventory, which was suggestive of mild depression and a Beck Anxiety Inventory, which was suggestive of mild anxiety.
180Dr Horsley said she agreed Ms Julier was fit for full-time work with restrictions.
181Dr Horsley also said Ms Julier:
(a) was permanently unfit for her previous role at 4Cyte;
(b) would find it difficult to work full time in a retail environment.
182Dr Horsley provides Ms Julier with support in this application. However, that is qualified. Dr Horsley makes it very clear that the Chronic Pain Syndrome, Depression and Anxiety also play a part in Ms Julier’s presentation.
Mr Miller
183Mr Miller examined Ms Julier for her solicitor on 2 November 2023.
184Mr Miller said Ms Julier told him:
(a) Her major problem is her lower back and neck. She recounted to Mr Miller a range of symptoms which she said she was suffering in both her lower back and neck.
(b) She has problems with anxiety and depression, and Mr Miller said a probable development of a chronic pain syndrome which will complicate the assessment and management of her condition.
185As to Ms Julier’s pre-existing lower back problems, Mr Miller said:
“… She had some pre-existing low back symptoms in the distant (sic) which responded well to chiropractic treatment until their relapse outlined above.”[51]
(Emphasis added.)
[51]PCB 61
186On clinical examination Mr Miller’s observations included:
(a) there was irritability alleged during neck rotation/movements;
(b) in the cervical spine there were complaints of diffuse tenderness;
(c) there was no muscle spasm in the cervical spine;
(d) in the thoracolumbar spine there was diffuse tenderness;
(e) the flexion of the lumbar spine was restricted to 40 degrees, extension to 10 degrees;
(f) straight leg raising caused low back discomfort on the left and right side at 50 degrees.
187On functional testing Mr Miller noted that Ms Julier walked with a normal gait, but reported some discomfort when attempting to kneel, squat or hop.
188Mr Miller said the neurological examination which he undertook was unremarkable.
189As to diagnosis, Mr Miller said:
(a) Ms Julier suffered a muscular ligamentous strain and aggravation of degenerative disease in the thoracolumbar column;
(b) there is radiation into the upper and lower extremity, but there are no other features to suggest radiculopathy, neurological deficit or structural injury;
(c) the described injury is associated with the development of a chronic pain syndrome which influences the current presentation.
190Under the heading “Mental State”, Mr Miller said Ms Julier suffered an adverse mental-state reaction with problems with anxiety and depression and probable development of a chronic pain syndrome, which will complicate the assessment of management of her condition. Mr Miller said this requires additional assessment by a psychiatrist.
191As to the relationship between Ms Julier’s work at 4Cyte and her complaint of spinal injury, Mr Miller said:
“The relationship between the work injury and the spine is a complex and multifactorial issue which includes the following factors:
(i) pre-existing disease, and I note there pre-existing low back symptoms
(ii) significant physical work over a protracted period of time, including the increased work over the period of the COVID-19 lockdowns outlined in section 3.1 of this report.
(iii) specific aggravation on 9 September 2021
(iv) subsequent development of mental health issues related to bullying and chronic pain syndrome.”[52]
[52]PCB 63 under the heading “Discussion” at paragraph 5.1
192Mr Miller went on to say that it was, in his opinion, Ms Julier’s mental health and the development of a chronic pain syndrome which impacts her capacity to work, over and above the restriction which he had outlined, which included:
(a) repetitive bending;
(b) repetitive lifting;
(c) lifting of weights of more than 5 kilograms;
(d) the requirement to shift posture on a regular basis.
193Mr Miller said he thought Ms Julier’s prognosis was fair.
194Mr Miller provided a supplementary report on 14 February 2024, after he had been provided the MRI scan of Ms Julier’s neck dated 15 January 2024. Mr Miller said there was only minor pathology in the cervicothoracic spine and the prognosis for the cervicothoracic spine is good.
195Mr Miller’s evidence provides Ms Julier with support in this application. However, it is qualified. Like Dr Horsley, Mr Miller makes it very clear there is a chronic pain syndrome/mental health issues which impact upon Ms Julier’s presentation.
Dr Rahgozar
196Dr Rahgozar assessed Ms Julier on 9 November 2023 for the VWA.
197At the time of this examination Ms Julier told Dr Rahgozar she was suffering moderately-severe pain which she rated at 6/10. The pain was in the mid to lower back and radiated to both legs.
198On clinical examination Dr Rahgozar said:
(a) Ms Julier walked normally without abnormal gait, could climb a flight of stairs and could sit for the length of this examination, which was about thirty minutes.
(b) Ms Julier could unilaterally weight bear on the right and left and stand on her tip toes and on her heels, but could not make a full squat by expression of pain in her back.
(c) Ms Julier’s range of motion of the cervical spine, shoulders, elbows, wrists and small joints of both hands appear to be normal.
(d) Ms Julier’s range of motion of her hip joints, knee joints and ankle joints appear to be normal.
(e) Ms Julier’s range of motion of the thoracolumbar spine was restricted in all planes and this was associated by expression of pain upon simulated rotation of the spine and actual loading.
(f) There were complaints of widespread tenderness to varied fine touch on the cervical spine, thoracolumbar spine and paraspinous areas. Ms Julier also reported pain upon palpation of the shoulder girth and upper limbs, left more than right; and pelvic girdle and lower limbs, left more than right.
(g) Neurological examination of the lower limbs within the confines of the examination was regarded as normal apart from a loss of sensation to pain and weakness of the left lower limb without myotomal, dermatomal or peripheral nerve pattern.
(h) Straight leg raise testing and FABER test were all negative with no evidence of hip or sacroiliac pathology.
199As to diagnosis, Dr Rahgozar said:
(a) Ms Julier’s was a rather complex clinical presentation;
(b) the most likely diagnosis of Ms Julier’s initial injury is a musculoligamentous injury;
(c) that in his opinion this initial injury has now resolved.
200In respect to the findings of the medical imaging, Dr Rahgozar said the imaging of the lumbosacral spine are:
(a) quite non-specific;
(b) very common in a woman of Ms Julier’s age and constitution;
(c) importantly non-concordant with her clinical presentation.
201Dr Rahgozar went on to say that in his opinion Ms Julier’s complaints of pain ought be regarded as non-specific in the context of a number of psychosocial factors. These being:
(a) a concurrent mental health condition that appears not to have been managed optimally;
(b) chronic use of opioids;
(c) non-evidence based physical therapies.
202Dr Rahgozar said Ms Julier’s presentation had elements that cannot be explained by a physical or musculoskeletal pathology. Dr Rahgozar said that this raised the possibility of a non-organic component to her presentation and emotionally-driven pain.
203Dr Rahgozar concluded that:
(a) Ms Julier does not require any treatment;
(b) does not have incapacity for activities of daily life and leisure;
(c) is fit to return to her pre-injury work.
204Dr Rahgozar reached the same opinion as Dr Ghan. That is, there is no ongoing organic work-related spinal injury. Like Dr Horsley and Mr Miller, Dr Rahgozar said the concurrent mental health issues were impacting upon Ms Julier’s presentation.
What conclusions do I reach in respect to the medical evidence?
205Moving now to my conclusions in respect to the medical evidence.
206I accept Ms Julier suffered a soft-tissue injury and pain to her neck and back as a result of her heavy and repetitive work with 4Cyte back in September 2021.
207This was not seriously challenged in the course of the application. The real issue was the nature and extent of any ongoing organic work-related spinal injury and what consequences in reality flowed from that injury (if any).
208The first matter which I wish to refer to is the psychiatric injury which I accept Ms Julier suffered as a result of the events at the workplace at the time of her return to work in late 2021. That these events and the psychiatric injury flowing from them has impacted significantly on Ms Julier has been acknowledged and commented on by all of the medical practitioners. I make specific reference to the comments made by Dr Comrie, Mr Miller, Dr Horsley and Dr Rahgozar. I note Dr Masoudi says Ms Julier should restart psychotherapy.
209The second matter which I wish to refer to is the variability of complaints made by Ms Julier and some of the observations made by medical assessors. For example:
(a) The complaints of ongoing pain in both arms and both legs referred to by Dr Masoudi which were not made by Ms Julier to other medical practitioners.
(b) Ms Julier telling Mr Calderon her neck injury had long since resolved in the context of making complaints of ongoing neck problems to other medical practitioners.
(c) The complaints of diffuse tenderness to light touch made to some of the medico-legal assessors and other assessors who record no tenderness.
(d) When assessed by Dr Horsley Ms Julier was able to fully squat. Five weeks later when assessed by Dr Rahgozar Ms Julier was not able to fully squat and evidenced expressions of pain.
(e) Dr Rahgozar’s observations of complaints of lower limb pain which were non-dermatomal.
(f) Dr Ghan’s observations that Ms Julier’s complaints of pain are inexplicable.
210These are just a few of the issues which I have noted in the course of the application and my review. Such matters tend to a conclusion of a non-organic basis to the level of complaints made.
211Having considered all of the evidence, I accept Ms Julier’s presentation is clouded by:
(a) her experiences at the time of the return to work;
(b) the ongoing flashbacks, nightmares and sense of wrongdoing which she experiences;
(c) the impact of the resultant psychiatric condition;
(d) non-organic factors.
212That then takes me to the opinions of the various medical practitioners in respect to Ms Julier’s alleged ongoing organic work-related spinal injury.
213I have already noted that none of the medical practitioners had full details of Ms Julier’s current level of activities.
214Not unusually in applications of this type, in simple terms the opinions are split into two camps: those who accept an ongoing spinal injury of significance and those who say there is no ongoing organic spinal injury, or any ongoing injury is of a minor nature.
215In the context of this case, at the opposite ends of the spectrum are Dr Ghan and Dr Rahgozar, who say there is no organic spinal injury and Dr Masoudi, Dr Horsley and Mr Miller, who provide support to Ms Julier’s application.
216I pause here to again acknowledge that such conflict in the medical evidence is often irreconcilable in the absence of cross-examination of the medical practitioners.[53]
[53]Warfe at paragraph [164]
217I must however resolve this conflict as best I can bearing in mind:
(a) the failure by Ms Julier to disclose to any of the doctors the existence of and the work which she undertakes in Runway Rental;
(b) my findings in respect to credit and reliability;
(c) my findings in respect to the impact of the ongoing psychiatric injury to Ms Julier’s presentation;
(d) my findings in respect to the inconsistency of complaint made by Ms Julier;
(e) the existence of non-organic factors.
218Mr Brett submitted I should be persuaded by Mr Miller’s clinical examination and the positive straight leg raising which he recorded. I note Mr Miller was the only medico-legal assessor to find any restriction of significance in straight leg raising. Mr Miller found a limitation of 50 degrees.[54] Of the other medico-legal assessors:
(a) Dr Horsley recorded a finding to 80 degrees;[55]
(b) Dr Ghan recorded a finding to 90 degrees;[56]
(c) Dr Rahgozar said straight leg raising was negative;[57]
(d) going back to December 2022, Dr Doig said straight leg raising was full and there were no nerve-root tension signs.[58]
[54]PCB 51
[55]PCB 55
[56]DACB 32
[57]DACB 40
[58]PCB 70
219I must consider the weight to be given to Mr Miller’s clinical findings given his opinion:
(a) the development of the Chronic Pain Syndrome impacts Ms Julier over and above any restriction from physical injury;
(b) Ms Julier suffers a relapse of a pre-existing back condition;
(c) Ms Julier’s presentation was “multifactorial”.
220To be balanced against Mr Miller’s findings are those of Dr Rahgozar and Dr Ghan. Dr Rahgozar examined Ms Julier a week after Mr Miller. Dr Ghan a couple of months prior.
221Dr Rahgozar said Mr Julier’s presentation had elements which cannot be explained by a physical or musculoskeletal pathology, and he raised emotionally-driven pain as an explanation.
222Dr Ghan said he was unable to define any pathology in the cervical or lumbar spine and said Ms Julier’s condition can be considered non-organic.
223Those medico-legal opinions supporting Ms Julier did so having made specific reference to and highlighting the ongoing impact of the bullying incidents and the psychological consequences. I consider these to be appropriate concessions.
224Moving from the medico-legal opinions to the treating health service providers.
225Without revisiting in detail the analysis I have previously set out I make the following observations:
(a) I am most concerned about the weight which I can attach to Dr Masoudi’s evidence. Dr Masoudi:
(i)did not have a full history of the activities undertaken by Ms Julier and in particular the operation of her business and her trip to South Australia;
(ii)was very reliant upon self-reported complaints made by Ms Julier.
(b) Dr Comrie made it very clear it was his belief that mental health issues in no small way impacted upon Ms Julier’s presentation. Further, Dr Comrie was confident of Ms Julier making a good biosocial recovery.
(c) Mr Calderon said Ms Julier’s neck problems had long since resolved and in respect to the lumbosacral spine went on to express an opinion that Ms Julier should be able to function normally in her day-to-day activities and her work, and her prognosis was good.
(d) Ms Astuti acknowledged that Ms Julier’s presentation was influenced by a lot of life factors and also expressed an optimistic outlook.
226The treating health service providers said, and I accept, there are factors other than an organic work-related spinal injury which are at play in respect to Ms Julier’s presentation.
227Having weighed up the medical opinions with Ms Julier’s evidence, and having completed my evaluation of all of the evidence, I accept:
(a) Ms Julier did suffer a soft-tissue injury to her spine in September 2021;
(b) that soft-tissue injury settled relatively quickly to a level where Ms Julier could return to work on a modified-duties program;
(c) Ms Julier developed a psychiatric illness which was consequential of the alleged bullying and harassment which Ms Julier said occurred upon her return to work;
(d) Ms Julier continues to be impacted by that psychiatric condition;
(e) Ms Julier has not advised the medical witnesses of the true nature and extent of her activities;
(f) Ms Julier’s presentation is impacted by complaints which I accept:
(i)to be clouded by self-reports of levels of pain and pain-related impairment not consistent with her levels of activity;
(ii)have a non-organic component;
(iii)are exaggerated.
228That said, it follows I do not accept the level of pain and pain-related impairment flowing from any organic work-related spinal injury to be at the level of and to have consequences to the extent expressed by Dr Masoudi, Dr Horsley, Mr Miller or indeed by Ms Julier herself.
229While I give weight to the conclusions expressed by Dr Ghan and Dr Rahgozar, I am prepared to accept that at this time Ms Julier’s soft-tissue spinal injury may not have completely resolved. However, I emphasise I am not prepared to accept that the nature, extent and consequences of any ongoing organic work-related spinal injury to be at the level as opined by Dr Masoudi, Dr Horsley and Mr Miller.
230I accept the most favourable description of any ongoing organic work-related spinal injury which Ms Julier may continue to suffer is to be found in Dr Doig’s report, where he records her as experiencing “niggling lower-back/buttock discomfort”.[59] It is that description which I accept best describes any ongoing work-related organic spinal injury suffered by Ms Julier.
[59]PCB 69
Disentanglement
231Moving now to disentanglement.
232The VWA said that Ms Julier had not adequately disentangled in accordance with her obligations.
233That there are comorbidities to be disentangled is clear. They include:
(a) pre-existing lower back problems;
(b) the psychological injury;
(c) endometritis which requires ongoing pain relief;
(d) the coccygeal injury sustained in May 2022, when Ms Julier was said to be wearing high heels and “out and about”.
234That the consequences flowing from Ms Julier’s comorbidities must be disentangled is clear.[60] Likewise, the process to be followed in disentanglement is well established.[61]
[60]Peak Engineering & Anor v McKenzie [2014] VSCA 67
[61]AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz [2012] VSCA 60 ꟷ see the analysis at paragraphs [25]-[35].
235I will, later in this judgment, set out my analysis and findings of the consequences flowing from the work-related organic spinal injury alone. At this stage I will simply make some preliminary and general observations in respect to Ms Julier’s comorbidities:
(a) Both Mr Miller and Dr Horsley referred to Ms Julier’s pre-existing lumbar spinal problems. Dr Horsley said any scoliosis must be mild. Mr Miller talked of a relapse of the pre-existing back problems, but did not expand any further.
(b) Ms Julier said she attended Dr Comrie with neck and back problems in November 2017. While Dr Comrie said Ms Julier, in September 2021, “returned” to his clinic, no detail was provided of the pre-existing spinal problems.
(c) The psychological injury I accept to be:
(i)relevant to my determination;
(ii)does significantly impact upon Ms Julier’s complaints of pain, pain-related impairment and her presentation generally.
(d) There are non-organic factors at play and, given this is not a paragraph (c) application, they must be disentangled in as far as they relate to Ms Julier’s psychological injury.
(e) The endometritis does require medication. That needs to be considered, but I do not accept it plays a significant part in the determination.
(f) The coccygeal injury is a relevant consideration. I do not accept Ms Julier has discharged the onus to establish this injury occurred in compensable circumstances. I accept it occurred when she was “out and about” and became unstable on her high heels. The consequences flowing from this condition (if any) need to be disentangled.
Some general observations on the “serious injury” test
236Before moving to complete my determination of Ms Julier’s application I make some general comments in respect to the “serious injury” test.
237It is Ms Julier who has the onus of proof.
238To establish “serious injury” the threshold is high.
239As set out in Stijepic v One Force Group Aust Pty Ltd & Anor,[62] while the evidence may disclose pain and suffering consequences which are both “marked” and “significant,” for Ms Julier to be successful I have to be persuaded that the consequences flowing from her organic work-related spinal injury can fairly be described as being “more than significant or marked” and being “at least very considerable”.
[62][2009] VSCA 181
240An example of a process which may be followed in the assessment of pain and suffering consequences was articulated by the Court of Appeal in the much-quoted case of Haden Engineering Pty Ltd v McKinnon.[63] The observations made by Maxwell P provide me with some assistance in respect to the tasks which I am to undertake in the completion of this aspect of my determination.[64] That said, Maxwell P’s observations are descriptive, not prescriptive.[65]
[63](2010) 31 VR 1 (“Haden”)
[64](Ibid). See, in particular, Maxwell P at paragraphs [9]-[17]
[65] Kesper v Victorian WorkCover Authority [2024] VSCA 237 at paragraph [101]
241Further, it is the “collective nature” of the pain and suffering consequences which must be considered. That is, the Court must consider “globally” all of Ms Julier’s:
(a) actual experiences of pain; together with
(b) the disabling and debilitating effects flowing from the subject injury.[66]
[66]Sutton v Laminex Group Pty Ltd (2011) 31 VR 100 at paragraph [114] (per Hargrave AJA)
242As a part of my analysis, I must give consideration to not only what it is that Ms Julier says that she has lost, but also what it is that she has retained.[67] In the context of this application, this is an important principle.
[67]Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 (“Dwyer”)
243Further, as the Court of Appeal said in Ellis Management Services Pty Ltd v Taylor[68] in relation to range cases:
“The judgment in issue is an evaluative one involving a synthesis of matters of fact and degree. Such a judgment necessarily involves a consideration of detailed facts and a weighting of cumulative factors. Different minds might reasonably reach different conclusions as to where the overall seriousness of the consequences fell within a range. … .”[69]
[68][2013] VSCA 326
[69](Ibid) at paragraph [59]
Is Ms Julier’s spinal injury a “serious injury” for pain and suffering purposes?
244Moving now to my determination of whether Ms Julier’s spinal injury is a serious injury and whether leave should be granted.
245My determination will be undertaken in the context:
(a) of my findings as to credit and reliability;
(b) of my conclusions flowing from the medical evidence.
246Moving firstly to pain.
247I will initially reference Ms Julier’s complaints of neck pain.
248Ms Julier, in her affidavit evidence (and I refer specifically to paragraph 2 of her affidavit of 25 May 2024), said her neck symptoms had “subsided somewhat”, but maintained her complaints of ongoing symptoms.
249This can be contrasted to:
(a) The evidence of her physiotherapist, Mr Calderon, who is her current manual therapist and who has consulted with and treated her in the months immediately prior to the swearing of this affidavit. Mr Calderon said:
(i)Ms Julier told him “the neck issue has long since resolved”;
(ii)he agreed the neck injury had likely completely resolved.
(b) Dr Horsley, who made no reference to neck symptoms.
(c) Ms Julier’s oral evidence where the focus was on her back condition and not her neck.
250This of course is to be contrasted to Ms Julier’s complaints of neck pain, referred arm pain and headaches made to other medical assessors.
251Ms Julier’s history and complaints in respect to her neck issues are, in colloquial terms, “all over the place”.
252In light of Ms Julier’s levels of activity, Mr Calderon’s history and conclusions, the failure to make reference to Dr Horsley and my findings in respect to credit and reliability, I give little heed to the allegations of ongoing neck injury made by Ms Julier in this application.
253Moving now to Ms Julier’s complaints of ongoing lower back pain.
254Ms Julier, in her 23 May 2024 affidavit, said the symptoms in her lower back and left leg had not improved. Ms Julier, in her history to doctors, paints a bleak picture of constant and unremitting lower back and left leg pain in the range of 4-6/10, with periods of pain at 8-9/10.[70]
[70]See for example Dr Horsley, PCB 54; Dr Ghan, DACB 31 and 34; and Dr Rahgozar, DACB 38
255I must contrast these complaints to Ms Julier’s levels of activity and my conclusions in respect to the medical evidence. I must also take heed of the impact which Ms Julier’s psychological injury has on her presentation and the need to disentangle and to assess only the consequences flowing from any organic work-related spinal injury.
256I am also conscious of the need to take into account not only what Ms Julier says about her pain, but what she in fact does about it.[71]
[71]Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592
257Turning to Ms Julier’s treatment. Ms Julier said in her oral evidence:
(a) she takes codeine one to two times per week;[72]
(b) variously she said she takes ibuprofen either a couple of times a week[73] or two to three times per week.[74]
[72]T45, L25-26 and T57, L13-18
[73]T45, L24
[74]T57, L17-18
258This can be contrasted to Dr Masoudi’s evidence. Dr Masoudi said Ms Julier was currently taking paracetamol/codeine “very infrequently - almost once a week”.[75]
[75]PCB 29
259I note the reference to pain management and the consultation with Dr Hamza. There was no evidence in the course of the application from Dr Hamza. Ms Julier seemingly attended Dr Hamza at the Victorian Rehabilitation Centre, but has not proceeded with such a course of treatment. In her affidavit evidence, Ms Julier said she attended the induction, but as she was receiving physiotherapy and doing exercises she seemingly decided such treatment would be of no utility.
260I consider Ms Julier’s level of activity, such as driving to South Australia, operating Runway Rental, attending concerts, dancing and moving in an unrestricted manner and enjoying an active social life, run contrary to the level of pain asserted by her.
261Likewise, I accept Ms Julier’s asserted use of medication to be at the lower end of the spectrum in the context of applications which come before this Court. I note she discontinued pain management. There has been no referral for specialist assessment by an orthopaedic surgeon or neurosurgeon.
262While I am prepared to accept Ms Julier may have some niggling lower back and buttock discomfort, I am not prepared to accept her level of pain is to the extent asserted by her. Further, I accept her complaints of pain are fuelled by the psychological injury which she suffers and her tendency to paint a picture favourable to her application.
263When considered in light of comparative cases, I conclude that Ms Julier’s levels of pain are at the lower end of the scale. This tends against a grant of leave.
264Moving now to work.
265Ms Julier is certified fit for full hours. Ms Julier told Dr Horsley she would work full hours in employment with The Collective Establishments. Ms Julier did not qualify her capacity to work in such full-time employment by saying she would have to give up the operation of Runway Rental.
266While I accept it may not be prudent for Ms Julier to return to very heavy physical work, I accept that she is fit for full-time work undertaking a wide variety of roles. Indeed, when I look to her earning capacity with The Collective Establishments[76] and her established capacity to operate and earn income in Runway Rental, I am not convinced Ms Julier has any, or any significant, loss of earnings.
[76] See DACB 143 – remuneration – pro rata $75,000.
267In terms of paragraph 15 of Haden and other relevant authorities touching upon the impact of impaired work capacity on a pain and suffering application, I give limited weight to the work consequences. This tends against a grant of leave.
268Moving now to sleep.
269Again, issues of disentanglement loom large.
270In her affidavit evidence, Ms Julier said her ability to get a good night’s sleep was affected. She did not give details of waking up in the night or particulars of consequential tiredness. It was a bland assertion.
271That Ms Julier’s psychological injury contributes to her poor sleep was specifically identified by Dr Masoudi.[77]
[77]PCB 29
272I also note the VWA submission that no evidence was called from Ms Julier’s partner, who could provide further insight in respect to allegations of impaired sleep and impaired sexual function. In this regard, I am conscious of the observations made by the Court of Appeal in Warfe.[78]
[78](Supra) at paragraphs [151]-[152] in particular.
273Further, I must factor in my findings:
(a) in respect to the medical evidence and the limited nature of any organic work-related spinal injury;
(b) the non-organic factors which are at play.
274I do not accept Ms Julier has discharged the onus that any organic work-related spinal injury has a significant impact on her sleep. I give this consequence limited weight.
275Moving now to the general activities of daily living.
276Firstly I note there is no suggestion that Ms Julier cannot self-manage, self-care or live independently. Indeed, there is no suggestion that, in general terms, she cannot tend to all her day-to-day needs. Further, I do not accept Ms Julier has any cognitive dysfunction flowing from the subject injury. That Ms Julier functions in these aspects of life in a normal manner is consistent with those tasks which she completes in the course of her employment with The Collective Establishments and her running of Runway Rental. This all tends against a grant of leave.
277As to household, family, recreational, social and other matters usually raised in applications such as this as consequences upon which a grant of leave can be based, it is appropriate that I take heed of the observation made by Ashley J in Dwyer. That is, the significance of what is said to be lost can be informed by what it is that has been retained. I accept this to be a very important principle in the context of this application.
278Put simply, I accept Ms Julier has retained the capacity to:
(a) work full-time hours in a range of employment options;
(b) operate her business, Runway Rental, which I accept to be a relatively sophisticated operation;
(c) travel overseas;
(d) attend nightclubs;
(e) attend concerts;
(f) go to the movies;
(g) engage in an active social life which includes going out for dinner and attending casinos;
(h) go swimming;
(i) go snorkelling;
(j) go dancing and move in an unrestricted manner;
(k) maintain her household;
(l) drive long distances;
(m) enjoy a range of tourist activities such as attending wineries and movie studios;
(n) maintain a vegetable patch;
(o) take her dog for extended walks;
(p) undertake the shopping.
279I must also balance Ms Julier’s evidence that she is no longer participating in more extreme recreational activities such as snowboarding, abseiling or scuba diving. It is appropriate that I give consideration to such assertions.
280I accept it is appropriate for Ms Julier to exercise a level of care in respect to extreme recreational activities and indeed life activities: this in the context of the limited nature of the organic work-related spinal injury which I accept her to suffer, and her pre-existing vulnerabilities, as acknowledged by Mr Miller.
281It is however necessary for me to synthesise Ms Julier’s retained capacities with those consequences flowing from the organic work-related spinal injury as I accept it to be. I must also assess:
(a) the impact of the subject injury on Ms Julier’s general enjoyment of life;
(b) whether any organic work-related spinal injury, in its own right, has significantly debilitated Ms Julier and dominates her life.
282It is my conclusion Ms Julier continues to live a very active and fulsome life. I do not accept the bleak picture which she sought to paint. Specifically I note that Ms Julier continues to involve herself in and enjoy a range of social, recreational and domestic activities, as well as work in both an employed and self-employed capacity.
283Put simply I accept Ms Julier continues to live a relatively normal life. I do not accept the impact of any organic work-related spinal injury to be all pervasive. Ms Julier has in the past undertaken, and continues to this day to undertake, a wide range of activities. Ms Julier continues to enjoy the rewards of operating her own business, works in a demanding paid position, enjoys an active social life and lives independently.
284As I have previously noted the threshold for the grant of leave is high.
285While I accept Ms Julier continues to have some consequences which on one view could be said to be “marked” or “significant”, such a finding does not satisfy the “serious injury” test.
286Having been in the unique position of observing Ms Julier give evidence and considering all of the evidence, I do not accept the consequences flowing from the subject injury to be “at least very considerable”.
287The application fails.
The consequential orders
288I will hear the parties in respect to the consequential orders to be made.
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