Lokhee v VWA
[2025] VCC 612
•14 May 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-24-04697
| MARIE LOKHEE | Plaintiff |
| V | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | His Honour Judge Pillay | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 May 2025 | |
DATE OF JUDGMENT: | 14 May 2025 (ex-tempore) | |
CASE MAY BE CITED AS: | Lokhee v VWA | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 612 | |
REASONS FOR JUDGMENT
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Subject:SERIOUS INJURY APPLICATION
Catchwords: Workplace injury – aggravation of lumbar spondylosis – can impairment consequences attributable to the workplace lower back injury be separated from the consequences of unrelated neck and back injuries – disentanglement of the claimed impairment consequences
Legislation Cited: Workplace Injury Rehabilitation Compensation Act 2013
Cases Cited:Transport Accident Commission v Zepic (2013) 65 MVR 32; Palmer v Transport Accident Commission [2024] VSCA 254
Judgment: Application Granted
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr L Allan | Zaparas Lawyers |
| For the Defendant | Mr N Dustan | TG Legal and Technology |
HIS HONOUR:
1I will now commence my reasons. The plaintiff is a 47-year-old woman with a history of some neck and back pain. She suffered an injury to her lower back at work on 20 July 2022. There is no dispute that she has sustained a compensable injury or that it is extant and similarly, it is also regarded by the parties as to be a permanent condition. Rather, the dispute centres on the consequences of that workplace injury on 20 July 2022. That dispute is in two parts.
2First can the impairment consequences attributable to the workplace lower back injury be separated from the consequences of her unrelated neck and back injuries?[1] Here, the plaintiff bears the onus of disentangling the effects of the two injuries on her pain and impairment so as to establish that the consequences attributable to the workplace lower back injury satisfy the serious injury threshold set out in the Workplace Injury Rehabilitation Compensation Act. Essentially, the defendant submitted that the plaintiff could not disentangle the causes of the claimed impairment consequences because (a), the plaintiff was an unreliable witness; and (b), her affidavits did not separate with sufficient detail as to how impairment consequences were affected by the neck injury as opposed to the workplace lower back injury.
[1] See Transport Accident Commission v Zepic (2013) 65 MVR 32 at 35 as cited in Palmer v
Transport Accident Commission [2024] VSCA 254 at [56]
3Secondly, if the workplace lower back injury impairment consequences could be separated, a question then arose as to whether or not they constituted a serious injury.
4For the reasons which follow, I find the plaintiff has sufficiently disentangled the effects of the neck injury from the workplace lower back injury on her pain and impairment. After performing that disentanglement and isolating the effects of her workplace lower back injury, I find that her impairment consequences rise to the level which could be considered more than significant or marked.
Relevant history
5I now turn briefly to the relevant chronology. The plaintiff was born in 1977. She is married with two children. She was born in Mauritius and came to Australia in 2005. After arriving in Australia, she completed qualifications as a chef with a particular specialty as a pastry chef. She worked in that field between 2005 and 2013 at Browns Bakers of Distinction. Then in 2014, she began work with AFA Corporation, otherwise known as AFA Corp, as a chef. That role lasted between 2014 and 2016. She then moved in 2016 to work as a chef at a childcare centre as well as later spending a small amount of time working as a customer care consultant with a car leasing company.
6On 1 June 2022, she commenced employment with AFA Corp as a catering manager full time. This was not a position as a chef, but as a catering manager, which was a separate and distinct position. It included both managerial and food preparation duties. On 20 July 2022, she sustained injury to her back when lifting a heavy commercial food processor lid. She consulted her treating doctor at the Better Health Family Clinic shortly thereafter and lodged a WorkCover claim and went off work.
7She commenced physiotherapy at Complete Care Physio Group and has been having ongoing physiotherapy there since that time. In early August 2022, she resigned her employment with AFA Corp. Briefly, as the medical history is somewhat unremarkable, while she's had some radiological investigations, it has not revealed anything sinister. Rather, it has been reported on MRI in September 2022 as spondylosis and degeneration at L5-S1, disc desiccation and a mild disc bulge with no impingement.[2]
[2] Plaintiff’s Court Book (“PCB”) 74-75
8She has been referred to a neurosurgeon, Dr Aliashkevich but he simply recommended conservative treatment. Since that time, she has essentially not had any further or any invasive treatment but rather continued on with physiotherapy treatment and I will come to that in some detail in due course.
9After resigning her employment with AFA Corp, she next worked in October 2023 as a customer services representative, involved in a desk-based role full time. She remains in that position to this date. She has sworn two affidavits in this matter. And otherwise relies on the affidavit of her husband, sworn in May 2025.
The injury
10I now come to define what the injury is. There was not much dispute about this, but for the sake of being certain, I find the following: the injury is properly described as an aggravation of lumbar spondylosis with disc bulge, but no compression. This is consistent with the MRI,[3] and the reporting of Mr Wilde[4] in respect of question 4. He was a medico-legal practitioner engaged by the defendant.
[3] PCB 58
[4] Defendant’s Court Book (“DCB”) 14
11Associate Professor Romas has a similar recording as to clinical finding but describes her injury as mild lower back dysfunction.[5] I do not consider this substantially contradicts Mr Wilde's opinion and it certainly accounts for the radiology. While I prefer Mr Wilde's opinion, I do not consider there is evidence to support an annular tear on the radiology, and I do not accept his opinion on that aspect of the diagnosis.
[5] DCB 6
12Turning to answer the first question, 'What are the impairment consequences attributable to the workplace lower back injury?' As to the pre-existing neck injury, the defendant took issue with the plaintiff, describing her neck pain prior to and after the date of injury as, I quote, 'low grade', as recorded by Mr Wilde.[6] The plaintiff was cross-examined on a series of entries in the clinical notes from mid-2019 onward in this regard. That cross-examination concluded by the plaintiff accepting that she had 'had neck and left shoulder pain for many years prior to the date of injury' and 'that this persisted currently'.[7]
[6] DCB 12
[7] T36, L24, T40, L4
13Further that this injury required on occasion medications such as Norgesic and physiotherapy. She also accepted it 'affected her sleep'.[8] And 'some recreational activities such as overhead pruning'.[9]
[8] T38, 23
[9] T39, L18
14I will come to the effect on her work separately. An examination of the clinical records shows that the plaintiff was correct to accept these matters in cross-examination because the notes of her treating doctor and her physiotherapist clearly reveal this to be the case. So it can be seen at the entry on 6 May 2019 and 2 January 2020, as to CT scanning and physiotherapy.[10] The entry of 13 May 2021 records neck pain and physiotherapy requiring Norgesic,[11] The entry on 17 May 2021 records the plaintiff requiring time off work and on 4 March 2022, requiring physiotherapy and Norgesic.[12]
[10] DCB 17, 21
[11] DCB 26
[12] DCB 27, 32
15What is also apparent however, from that review of the clinical notes is that: first, the plaintiff was working as a chef in this period. This is a manual job requiring bending and lifting and often repetitive use of the arms. She performed it with perhaps only a few short days off work for this pre-existing neck and left arm problem.
16Second, her treatment was for sporadic courses of physiotherapy. It was not continuous.
17Third, and similarly, her medication prescriptions were for reasonably isolated scripts. So she was not continuously on medication.
18Fourth, there was significant gaps in her attendance for this pre-existing neck pain such as from June to November 2021, or from January 2020 to May 2021. And in those periods, she went to her GP for other matters, and did not report neck pain. This, I consider, supports her evidence of an abatement of any significant neck problems prior to the date of injury.
19These matters overall support the plaintiff's evidence in her affidavit that she:
“Suffered from neck and left shoulder pain on and off over the years. I have had treatment for neck and shoulder pain, including physiotherapy and massage. I had a CT scan of my neck in December 2019. I have suffered intermittent lower back pain in the past.”[13]
[13] PCB 14 at paragraph [5]
20Just dealing with the pre-existing lower back pain. There is not much recording of this. The defendant did not cross-examine on it in any great detail, and I do not consider much needs to be said, other than that it played no role in incapacitating her for work, social or recreational activities prior to the date of injury.
21Next, the defendant submitted that the neck injury played a substantial, if not critical role in the plaintiff ceasing work as a catering manager. Therefore, it was submitted that the plaintiff had not properly identified how the workplace lower back injury had affected her employment and her work capacity. I reject that submission for the following reasons.
22First, the plaintiff had worked as a chef at AFA Corp between 2014 and 2016, and then again as a chef at a childcare centre, from 2016 to 2021. She left that role, she gave evidence about, not because of her neck, but because of constantly changing management.[14] That was challenged as not reliable evidence, because she had changed careers to a lighter administrative role.
[14] T15, L7
23I reject that submission because the plaintiff's history is that after coming to Australia, she had specifically trained as a chef with a pastry speciality. She had worked in that field from 2008 essentially to 2021. She deposed to loving that work, far from changing out of that work for light duties office work. By going to AFA Corp in June 2022, she demonstrated that catering and kitchen work was what she could do even with her condition. This speaks to her work ethic, and also the fact her neck injury is not impacting her physical capacity in a way which significantly impacted her ability to work in that field.
24She worked in that role for some seven weeks, from 1 June 2022 to the date of injury, with no physical complaint. This was despite the uncontroverted evidence that she was not provided with adequate support workers, and so had to work covering that physical role as well. This demonstrates that her neck condition played a minimal role in affecting her work capacity.
25From the time she started work, on 1 June 2022, until the date of the injury, she did not attend the treating doctor complaining that work was aggravating her neck symptoms. I consider this very good evidence that her neck condition had a minor impact on her work.
26For the further following reasons, I also consider that the dominant reason the plaintiff left AFA Corp was because of the workplace lower back injury:
a.it was a frank episode. It occurred in sudden, abrupt circumstances. Mr Wilde terms it an incident which, 'severely damaged', her back.
b.she went to hospital, and was off work for a considerable period of weeks. This indicates a step change in her treatment, and it appears that she did not return. While she accepted – properly, I consider – in cross-examination that her neck and the lack of support in her position played a role in her decision, she affirmed that it was the severity of the workplace lower back injury that led to her ceasing work.[15]
[15] T20, L11-16
27I consider this to be accurate evidence, and her answer reliable. She is a working married mother of two. She has a solid work record. A decision to leave work, then, was not made lightly, and no doubt many factors were at play in that decision. To recognise that is not to elevate the significance of the neck injury or downplay the workplace lower back injury. Rather, it simply accurately states the human position in making complex decisions.
28This was, I consider, evidence of the significant effect the workplace lower back injury had. In re-examination, she confirmed that if the workplace lower back injury had not occurred, she would have returned to catering work, which is what she was trained and qualified and experienced in, and enjoyed. But for that workplace lower back injury, that option would not be closed off to her.[16]
[16] T47, L1
29It was put to her she continued on after the date of injury with serious neck pain, which required analgesic pain medication and physiotherapy. The plaintiff's evidence on this point was somewhat unreliable, because she did not accurately know which physio treatment was for her back or neck on specific dates. I consider this is understandable, given the volume of physiotherapy treatment she has actually had since the date of injury.
30A review of the records shows that from the date of injury until today, the vast majority of attendances are for the lower back, and the scale of the treatment is very significant. On my estimation, in 2022, there were some 34 treatments. In 2023, there are about 82 treatments, and in 2024, there are some 80 treatments for the lower back injury.
31In comparison, in that period, there are less than 20 attendances for the neck. This suggests that the neck pain was a very modest factor in her pain, and similarly played a modest role in impacting her work, social and recreational activities. It also demonstrates, I find, how significant the workplace lower back injury is, requiring intensive, prolonged treatment over years to allow the plaintiff to function.
32It was put to her that she returned to work in a lighter office-based role because of her neck injury. For the reasons immediately above, I reject that submission. Once again, her evidence on this point in cross-examination, I consider, is not unreliable, but accurate, when she conceded that office work is easier on her neck. That is no doubt true, but for reasons set out above, it is not the reason she is working in this role.
33On the question of work capacity overall, then, I find that her neck injury plays only a very modest role. It does not stop her working as a chef or catering manager. Rather, these occupations are closed to her because of her workplace lower back injury. It will be apparent from the above that I consider the plaintiff was a witness of truth, whose evidence I accept overall.
The impairment consequences
34I now turn to consider the claimed impairment consequences, and whether the effect of the workplace lower back injury can be properly separated from that played by the neck injury.
35First, I find that she needs a very large amount of regular, intensive physiotherapy treatment for her workplace lower back injury. This is evident from my review of the notes, which I have set out above. This is almost solely due to the lower back pain. In addition to that, she takes deep heat and pain medications as well, though this is somewhat infrequent.
36Second, she has lost her ability to work as a chef or catering manager. These were roles that she was trained for, was qualified in, enjoyed, and are now not open to her, because of her workplace lower back injury. For reasons above, her neck pain does not limit this occupational capacity. This, I consider, is a very significant consequence for a person like her, who is deprived of her trained trade.
37Third, similarly, her love of cooking and baking, which is especially important for a pastry chef, is fundamentally altered. Her neck injury plays a very modest impairing role, as previously set out it didn't affect this capacity at all.
38Fourth, she is now in constant variable pain from the workplace lower back injury.[17] And also, I refer to Mr Wilde, who takes a history of pain on good days of 4 out of 10, and on bad days, 8 out of 10.[18] I accept that recording as an accurate record of the pain that the plaintiff experiences. Flare-ups, I find, occur at least two times per week, as she gave evidence about in re-examination, and on those occasions, such flare-ups can last several days, and in fact can require some time off work.
[17] PCB 16 at paragraph [21]
[18] DCB 13
39Fifth, her sleep prior to the date of injury was affected by her neck pain, as she deposes, and this remains the case.[19] But she also deposes that her workplace lower back pain interrupts her sleep every night. For reasons set out above, I consider this is an accurate reflection of her situation, that the lower back pain is a dominant factor which affects her sleep and interrupts her every night.
[19] PCB 17 paragraph [28]
40It is also relevant to consider those enjoyments in life which she has retained. So she can work full-time; she can drive; she can travel overseas, and she has been to Mauritius and also travelling interstate; she can cook, clean and garden, though these latter three matters are all restricted to some degree by her workplace lower back injury.
41It is also necessary to state that I consider the plaintiff to be a stoic person. She has persisted in the face of her lower back pain, that which needs constant ongoing intensive treatment from a physiotherapist, and someone who has returned to work and now works full time.
42But as His Honour Nettle JA said, it would be wrong headed to hold those matters against her. Rather, and primarily because of her loss of work capacity in the field for which she was trained and enjoyed, her constant pain and the constant extensive treatment, which has now occurred over several years, I find these conditions are likely to persist into the future.
43That future is likely to be blighted for the reasons that I have set out above and are caused, primarily, by the workplace lower back injury. For all those reasons, I will make a determination that the plaintiff has sustained a serious injury to her lower back arising at her workplace.
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