Moran v VWA
[2025] VCC 1231
•11 September 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-24-07469
| STIRLING JOHN MORAN | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE CLAYTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 and 30 July and 1 August 2025 | |
DATE OF JUDGMENT: | 11 September 2025 | |
CASE MAY BE CITED AS: | Moran v VWA | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 1231 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Damages – serious injury – permanent serious impairment or loss of a body function – injury to the neck – aggravation of right hand – aggravation of left hand – aggravation of left and right shoulder – psychological injuries
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s325
Cases Cited:Ansett Australia Ltd v Taylor [2006] VSCA 171
Mert v Lawrence Pty Ltd [2016] VSC 348
Sednaoui v Amac Corrosion Protection Pty Ltd (2017) 52 VR 247
Sepe v Club Italia Sporting Club Inc & Anor [2023] VSC 191
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A D B Ingram KC with Mr Z Partos | Carbone Lawyers Australia Pty Ltd |
| For the Defendant | Ms C Willshire | IDP Lawyers Pty Ltd |
HER HONOUR:
1Stirling Moran claims he injured his right shoulder, his left shoulder, his neck and suffered a psychiatric impairment, as a result of an incident at work with Source One Alliance Pty Ltd (“the employer”) on 22 December 2022.
2He seeks leave to bring common law proceedings for damages, and loss of earning capacity, on the basis that his injuries meet the definition of “serious injury” under s325 of the Workplace Injury Rehabilitation and Compensation Act 2013. He claims a total incapacity for work.
3He must establish that the pain and suffering consequences, when judged by comparison with other cases in the range of possible impairments or losses, may be fairly described as being more than significant or marked, and as being at least very considerable. In relation to his claimed psychiatric injury, he must establish that the injury is more than serious to the extent of being severe.
Issues
4The issues in this case are:
(a) Was Mr Moran’s evidence reliable?
(b) If not, what impact does Mr Moran’s unreliability have on the opinions expressed by the medical experts?
(c) Can Mr Moran rely on the Victorian WorkCover Authority’s (“VWA”) acceptance of his claim, and its payment of weekly compensation beyond 130 weeks, as an admission that he was injured at work and that his work injury precludes him from employment for the foreseeable future?
(d) If so, what weight should be given to that admission?
(e) Do I need to determine how the injury occurred?
(f) Has Mr Moran suffered a psychiatric injury attributable to work, which meets the test?
5For the reasons set out below, I am not satisfied that Mr Moran meets the test and accordingly his application for a serious injury certificate is dismissed.
Was Mr Moran’s evidence reliable?
6Mr Moran said he has had dyslexia and hyperactivity since childhood. He said these diagnoses mean he has difficulty with memory, reading and writing and mean he tends to fidget and talk too much. He said he is unable to control these behaviours when anxious. I accept that giving evidence in court is an anxiety-inducing experience. He had difficulty waiting for questions to finish before answering them, and difficulty, at times, focusing on the question asked.
7I accept that his dyslexia may impact his ability to order his thoughts, retain information and sequence events appropriately. I accept that his hyperactivity is likely to impact the manner in which he gave evidence. I have taken these matters into account when reaching my conclusion about Mr Moran’s reliability.
8Mr Moran says he was injured on 21 December 2022. His employment ended on 21 January 2023. Mr Moran made a WorkCover claim on 22 February 2023 for injury to his left shoulder, bicep and right hand.
9For the reasons set out below, I am not satisfied Mr Moran was reliable. I do not accept his evidence that he experienced immediate onset of pain in both shoulders and his neck at the time of the incident, over the Christmas period, or at any time during January 2023.
10This is because:
(a) Mr Moran’s evidence in his affidavit, sworn 28 August 2024, and his oral evidence, as to the timing of onset and the location of his pain, was inconsistent and at times contradictory;
(b) His evidence about his pain was inconsistent with his actions and activities prior to lodging his WorkCover claim;
(c) He told his general surgeon, Mr David Merenstein, and general practitioner that he was attempting to return to handyman work, which is inconsistent with his description of the level of pain he was in;
(d) He accepted he could have continued to work as an installer after 20 January 2023, which is inconsistent with his description of the pain he was in;
(e) He returned to the gym in January 2023 and was weightlifting 80 kilograms, one to three times a week, which is inconsistent with his description of pain;
(f) On the balance of probabilities, I am not persuaded he complained to Ms Emma Adlam, HR manager and administrator, and wife of the owner of the employer company, or Mr Mark Cvetkovic, the manager at the time of the incident, in January 2023;
(g) I am satisfied that, if he were in pain, he would have been likely to complain of that pain. That is, he is not a “stoic” plaintiff;
(h) He is a person who attended his general practitioner regularly, including for relatively minor ailments;
(i) On the balance of probabilities, if he were in pain, he would have attended his general practitioner;
(j) On the balance of probabilities, if he were in pain, he would have complained about his pain to his general practitioner at one or more of his five attendances after the incident and before 21 February 2023;
(k) He did not make any complaints to his general practitioner about pain in his left shoulder until 21 February 2023;
(l) He did not make any complaints about pain in his right shoulder to his general practitioner until April 2023;
(m) He did not make any complaints about neck pain to his general practitioner until March 2024;
(n) He was aware of the process of making a WorkCover claim, but did not make a WorkCover claim after the incident, or when his pain allegedly worsened upon his return to work in January 2023;
(o) He did not make a WorkCover claim when he left the employment. I am satisfied that he is a person who would make a claim for WorkCover, particularly after he had left the employment;
(p) When he did lodge a WorkCover claim, he did not identify right shoulder and neck pain in his WorkCover Claim Form; and
(q) He exaggerated his evidence in relation to the danger of the incident and his degree of pain, to bolster his case.
What did Mr Moran say about the onset of pain?
11In his affidavit, Mr Moran said he was helping Ms Adlam to unpack and set up shelving for a new company business venture, “Whiteboards R Us”. He said, as he and Ms Adlam were erecting a cantilever column, he could feel it slipping. He said:
(a) during the incident, he screamed out, but despite the pain, he could not let the rack go, because it would have fallen over on Ms Adlam;
(b) Two fingers on his right hand were caught between the column and began to immediately swell. He jarred both his shoulders. He did light duties that day and worked until the Christmas break;
(c) During the Christmas break, the pain in both shoulders and neck became “intense and unbearable”;
(d) When he returned to work, he had “constant pain” in his neck, shoulders, right fingers and wrist;[1]
(e) As soon as he returned to work, he told Ms Adlam about the pain in his neck and shoulders, and she told him to “take it easy”;
(f) However, when he resumed his full duties, he struggled and could not fully perform the installation duties. He tried to persevere but the shoulder and neck pain “became intolerable”, and he had to report the pain to his manager. As a result, his employment was terminated;
(g) After his employment ceased, the pain in his neck, fingers and shoulders continued, and he continues to suffer from severe pain. He lodged a claim in February 2023 to seek treatment for the left shoulder because, at the time, his left shoulder pain was excruciating;
(h) He continues to suffer from neck and right shoulder pain, which became more noticeable after he started physiotherapy treatment;
(i) Despite treatment, the bilateral shoulder pain remains intense and dominates his day-to-day living;
(j) He is reluctant to have cortisone injections because of his previous adverse experience;
(k) He is restricted in the medication he can take because of his diabetes and gastric medication. He takes only Panadol;
(l) He has a high tolerance for pain and initially believed the pain would go away; and
(m) The pain is worsening and, since April 2024, he has been experiencing pain in his neck, as well as his shoulders. The pain is constant. He feels stiffness in both shoulders and his neck. He often feels a tingling sensation in his neck, shoulders and hand.
[1] Plaintiff’s Further Amended Court Book (“PCB”) 9
12In oral evidence, he said that, immediately after the incident, he felt pain straight away in his neck and both shoulders and he made a noise of pain.
13He said he had no idea what he had done to himself and thought he had pulled a muscle. He said he was “actually amazed” he did not slice his fingers open.
14He agreed that, the following day, he had cooked the barbecue at the work Christmas party and carried a case of beer (less a sixpack), to his car.
15Mr Moran said he did not mention his neck or right shoulder in his Claim Form because, when he explained the incident to the WorkCover independent medical examiner, the examiner put it down as the left shoulder.[2] That evidence cannot be right. Mr Moran had filled out the Claim Form on 22 February 2023. He did not have his first WorkCover examination until 4 April 2023.
[2] Transcript (“T”) 41
16When he was taken to his Claim Form, he changed his evidence and said “the pain at the time after the incident the pain I was receiving was mainly at that time in the left shoulder”.[3] He said he was having “a little bit” of pain in his neck and right shoulder but the main pain was his left shoulder. This cannot be reconciled with his affidavit evidence where he says the pain in all areas became “intense and unbearable” over the Christmas break and was “constant” on his return to work.
[3] T42
17He maintained, in his oral evidence, that he had immediate neck and right shoulder pain,[4] and that he continued to have symptoms in his neck and right shoulder which got worse as time went on.[5] He said he was in ten out of ten pain in his neck while giving evidence.[6]
[4] T40; T63
[5] T63
[6] T134
18He agreed that he went back to the gym after the incident. He said he could not recall the timing but believes he “had a couple of weeks off from the gym”. He said when he went back to the gym, he had no idea what he had done to his shoulders and his neck. He said he was doing weightlifting, “push and pull, bench and the light”. Prior to the incident, he said he was lifting 100 kilograms, three to four times a week. After a couple of weeks off, he had to build back up and was “lifting lighter”. He said he was lifting about 80 kilograms, but he was only doing that “two to three - one to two days a week” because the pain was increasing. He said he only returned to the gym for a couple of weeks and then put in his WorkCover application. Dr Eman Awad, occupational physician, recorded that Mr Moran returned to the gym in January and noticed he had increased pain and was unable to undertake his usual exercises.[7] I do not accept that, if he was in the sort of pain he describes, he would be able to weightlift 80 kilograms.
[7] PCB 44
19His evidence about his experience and the onset of pain changed multiple times during the course of his oral evidence.
20Even accounting for his difficulty with timelines and memory, I could not get a coherent timeline of the onset, the degree and the location of his pain.
21His description of pain ranged from “intolerable and intense” pain in both shoulders and neck over the Christmas break, and upon his return to work, to feeling like he had pulled a muscle in his neck at the time of the incident, to having pain that was predominantly in his left shoulder, with only a “little bit” of niggling pain in his neck and right shoulder.
22He said, as time went on, the neck and right shoulder worsened. He experienced headaches and dizziness, though he could not recall when. He said no one was investigating his neck because “they” thought the pain was from his shoulders. He said he complained to doctors about his headaches a few times.[8]
[8] T137-139
23When asked whether he could be confusing his current experience of pain with his recollection of the pain he experienced at the time of the incident, he said “like I said, I had instant pain”.[9] He said “at the time it was probably - what’s the word? Obviously it was severe but it was – how can I say? I stayed at work so it must have been somewhat tolerable in some way.”[10]
[9] T140
[10] T141
24His oral and affidavit evidence cannot be reconciled. Given Mr Moran’s evidence about his difficulty with memory, I conclude that his current experience of pain, and his psychiatric condition, has impacted his recollection, rather than finding that he has deliberately attempted to mislead the Court.
25Nevertheless, I cannot be satisfied that his evidence about the onset of pain in any of his body parts is reliable. I therefore look for other evidence to support his claim.
Did Mr Moran complain to Ms Adlam about pain?
26In his affidavit, Mr Moran said upon his return to work in January 2023 he immediately complained about his neck and shoulder pain, to Ms Adlam. .
27Ms Adlam swore an affidavit dated 26 June 2025.
28I prefer the evidence of Ms Adlam that she enquired about his fingers immediately after the incident, but he did not make any complaint about his neck and shoulders. This is because:
(a) her evidence is consistent with her note in the Employer Claim Form that the only comment Mr Moran made was that he had a sore hand;
(b) She was not cross-examined despite her evidence squarely contradicting Mr Moran’s evidence that he immediately complained to her upon returning to work in January 2023; and
(c) Her evidence that he did not complain is consistent with my other findings, including that he did not make any complaints of pain to his doctors.
29I am not persuaded that Mr Moran made any complaints of shoulder or neck pain to Ms Adlam prior to ceasing work.
Did Mr Moran complain to Mr Cvetkovic about pain?
30Mr Moran said that, on his return to work after the Christmas break, he complained to Mr Cvetkovic that his neck and shoulders were sore.[11]
[11] T38
31He said there was one time after Christmas when he –
“… basically mentioned - just a brief - we were walking from the factory into the actual main – back into the office area, and I just made a comment - it’s in my affidavit there, and Mark didn’t respond back to me. I was expecting him to say something to me, and he didn’t respond, so I didn’t continue on with that – basically complaining.”[12]
[12] T37
32He said Mr Cvetkovic already knew about his hand injury because he saw him rubbing it and asked what was wrong and told him to go to a doctor. Mr Moran said he responded “like I do as a guy ‘No, I’ll be right, mate’. So I didn’t worry about it at the time.”[13] Mr Moran agreed with Mr Cvetkovic’s evidence that this conversation about his hand occurred on 17 January 2023.
[13] T38
33Mr Moran said he complained about his neck and shoulders around that same time. He said:
“… after the incident happened, right, I had pain in those areas - mainly in the shoulders at the time. Now, when I had my Christmas break, I thought have a rest, go back to work, I’ll be fine. Now, my first job was unloading whiteboards … and that’s when I’ve noticed instant pain again through my shoulder, my neck areas.”[14]
[14] T39-40
34Mr Cvetkovic, in his affidavit sworn 25 June 2025, said he was not aware of any shoulder or neck problem until it was brought to his attention in 2024, when Mr Moran filed this application.
35Mr Cvetkovic said that, on 21 January 2023, Mr Moran called him and:
(a) asked to be assigned a role in the warehouse as he was the primary caregiver for his mother and grandmother;
(b) told him driving to jobs caused him anxiety and meant he did not have regular hours to care for his mother and grandmother;
(c) said he wanted to be closer to home; and
(d) disclosed that he did not get on with the other installers as he did not have anything in common with them, that they liked to banter about AFL to which he could not relate.
36Mr Cvetkovic said he would speak with Mr Brian Adlam, owner of the employer company, to see if there were any warehouse roles. After speaking with Mr Adlam, Mr Cvetkovic told Mr Moran there were no warehouse roles at that time and he could remain employed as an installer and transfer if a role in the warehouse became available. Mr Cvetkovic said Mr Moran decided to leave if no other role was available, and Mr Moran thereafter did not return to the workplace.
37In oral evidence, Mr Moran said he had significant responsibilities in caring for his mother and grandmother and he wanted to be more available to his mother and grandmother. He said he spoke to Mr Cvetkovic in the lunchroom about changing his role. Mr Moran said Mr Cvetkovic’s first response was:
“Oh, you’re not telling me you’re gonna quit are you?”[15]
[15] T45
and that Mr Cvetkovic said to him:
“‘Stirling, you’re too skilful to be put in the warehouse, I want’ - you know, ‘basically your qualifications, your skill base is better out in the field doing installations. You’re too good to be in the warehouse.’”[16]
[16] T46
38He said, after a bit of “back and forward”, Mr Cvetkovic said he would speak with Mr Adlam. Mr Moran said Mr Cvetkovic said:
“’I know your financial situation. I’ve been in the same in another previous job where I wanted to, you know, look – wanted a double role or wanted to leave’, or whatever it was, and that the employer let him work for a couple more months so he had financial – you know, he had an income coming in and then he said, ‘we can try and do that for you and then when you’re looking for another job at least you’ve got some income coming in because’ - he goes - ‘I know your financial situation with your mortgage and your mum and so forth’.”[17]
[17] T46
39Mr Moran said Mr Cvetkovic told him to “leave it with” him and then called him that afternoon to say that he had spoken with Mr Adlam, who thought it was better to part ways.
40Mr Moran said that he had not quit his job and that it was “weird” how the conversation went from him wanting to change to a warehouse role, to him being, in his view, dismissed.
41Neither Mr Moran’s oral evidence about his conversation with Mr Cvetkovic, nor Mr Cvetkovic’s evidence mention Mr Moran’s injury as a factor in the termination of his employment. This is different from Mr Moran’s affidavit evidence that he was terminated after raising his injury with Mr Cvetkovic.
42When asked about his issues with the other installers, Mr Moran said that, as a Carlton member, he was football fanatic. However, he accepted he had told Mr Cvetkovic that he was not happy. He described two incidents with another installer which had made him feel “sick to the stomach”. Mr Moran said he reported this to Mr Cvetkovic “just to let him know”. He agreed that these incidents with his co-workers led him to not want to work with the installers. He said he “just didn’t feel comfortable working with those two guys”.[18] He said he felt they “took the piss” when he complained about being sore.
[18] T50
43Mr Cvetkovic’s evidence that the reason Mr Moran did not get along with his co-workers was because of their AFL banter is, I find, incorrect, given Mr Moran’s status as a lifelong Carlton fan.
44Whether Mr Moran was terminated or resigned is a point of dispute. Mr Moran says he was sacked and says the fact that the employer paid him an additional two-weeks’ pay supports his evidence. There would be no obligation on an employer to pay an additional two-weeks’ pay to an employee who resigned.
45The history Mr Moran provided to some doctors suggested he left because he was being bullied, or that bullying was a factor in his departure. Ultimately I am not persuaded it is necessary to resolve the question, because it does not assist me to determine whether the work has caused a serious injury.
46Mr Moran did not say that he could not do the work as an installer. In fact he said that he would have continued to work as an installer if no warehouse role was available and he had not been sacked. It is not a case where I can infer that he was terminated because his injury prevented him performing his job, and infer from that something about the seriousness of the injury.
47On his case, Mr Moran could have continued to work as an installer.
48On balance, although Mr Cvetkovic was wrong about the AFL, I accept his evidence when it comes to Mr Moran’s complaints of pain for the following reasons:
(a) He was not required for cross-examination, despite his evidence that he was unaware of any complaints by Mr Moran of shoulder and neck pain during Mr Moran’s employment which contradicted Mr Moran’s evidence that he had complained to Mr Cvetkovic;
(b) Mr Cvetkovic’s evidence was consistent with Mr Moran’s in relation to a number of matters, including:
(i)Mr Moran was at the company Christmas party on 22 December 2022, cooked the barbecue and took home a case of beer as a Christmas bonus;
(ii)In January 2023, he noticed Mr Moran rubbing his hand and asked if he was okay and Mr Moran told him he had hurt it at “Whiteboards R Us” before Christmas;
(iii)He asked Mr Moran if he should get it looked at by a doctor or physiotherapist and Mr Moran said he was okay;
(iv)Mr Moran asked to be assigned to a warehouse role because he had caregiving responsibilities to his mother and grandmother and he wanted to work closer to home;
(v)Mr Moran had an issue with the other installers;
(vi)Mr Cvetkovic said he would speak with Mr Adlam to see if there were any jobs in the warehouse. There were no jobs in the warehouse; and
(vii)Mr Moran was still going to the gym.
(c) This consistency in their accounts causes me to accept Mr Cvetkovic’s affidavit reflects the conversations he had with Mr Moran reasonably accurately.
49I am not satisfied Mr Moran made any complaints to Mr Cvetkovic about shoulder or neck pain.
What did Mr Moran say to medical practitioners after the incident about pain?
50On 17 January 2023, Mr Moran had a Telehealth consultation with his general practitioner for repeat scripts. There is no record of any complaint of pain.
51On 3 February 2023, he attended his general practitioner for review of his diabetes care plan. His diabetes was noted to be poorly controlled. The medical records on that date noted he wanted chiropractic support due to his work as a property management handyman. At an attendance on 24 March 2022, he was noted to want chiropractic care for back and shoulder pain management. He said, in relation to that 2022 attendance:
“… basically through my job, just working in the industry, going to the gym - it’s just like we all do, we go for a normal tune-up, just to, you know - that’s all it is. It’s just a regular - if I - you know, maybe every couple of months I go just to, yeah, that’s all it is.”[19]
[19] T145
52I assume from that evidence that his desire for chiropractic support in February 2023 was due to his “work as a property management handyman” refers to his “normal tune-up”, particularly as there is no reference, on 3 February 2023, to any complaint of pain or any area of pain.
53On 7 February 2023, he attended his general practitioner with an irritating skin lump on his upper inner thigh. He had a local anaesthetic and the lump was excised and dressed. There is no record of any complaint of pain in his shoulders or neck.
54On 9 February 2023, he had a Telehealth consultation to get test results and advice in relation to diabetes. There is no record of any complaint of pain.
55On 20 February 2023, he had a Telehealth consultation with his general practitioner in relation to his diabetes control and need for referral to an endocrinologist. There was no record of any complaint of pain in his shoulders or neck.
56In cross-examination, Mr Moran was taken through these attendances. He said he did raise his pain with his general practitioner. I am satisfied that his evidence that he told his general practitioner about his pain related to his attendance on his general practitioner on 21 February 2023. He said “I didn’t go to doctors for any WorkCover stuff after - until I wasn’t working for the company. So once I stopped working for the company.”[20] This does not explain why, after he left the company on 20 January 2024, he did not report pain to doctors at his attendances on 3, 7, 9 and 20 February 2023.
[20] T60
57On 21 February 2023, he attended his general practitioner for “WorkCover”. The general practitioner notes are as follows:
“report that end of last year had work place injury - unabl[e] to recall the date
report that holding the middle part of a heavy pillar (shelving support) & it got slipped & report that tried to balance it to stop fr[om] falling
report that it was witnessed by her boss
report that injured left shoulder & also r[i]g[h]t 4th + 5th finger
report still having left shoulder pain & restricting his daily duties
no incident report done
happen[ed] with his previous employment
keen on going on work cover
Examination:( verbal consent obtained)
moving r[i]g[h]t hand well
moving left shoulder well
Management:
advised to do incident report
advised to see Thompson Rd medical GP for work cover related issue - agreed
long consult.”
(sic)
58Mr Moran denied that he was moving his shoulder well and said he did complain of right shoulder pain, but that the left shoulder was “the main one”.
Does Mr Moran’s WorkCover Claim Form assist in establishing the timing of onset of pain?
59On 22 February 2023, Mr Moran completed a Worker’s Injury Claim Form Part A. In response to the question “What is your injury/condition and which parts of your body are affected?”, he wrote “Left shoulder and bisep (sic) & the inner palm of my right hand”.
60His evidence about why he identified only left shoulder and right-hand injuries was inconsistent and confusing:
(a) He said it was because the independent examiner had “put it down as the left shoulder”.[21] That evidence cannot be right. The independent examination did not occur until 4 April 2023.
(b) He said he had just “copy and pasted” the document. When asked what he meant, he said that some of the forms automatically fill in his information. That cannot be correct in relation to this Claim Form.
(c) I asked him whether he had an actual recollection of completing the Claim Form. He said he did “100 per cent” and he had done it on his home computer. When asked why he had mentioned left shoulder, bicep and inner palm of his right hand but not his neck or right shoulder, he said, “after the incident the pain I was receiving was mainly at that time in the left shoulder” and that he was having only a little bit of pain in his neck and right shoulder.
(d) It was put to him that he was aware that it was important to be precise in his Claim Form because he had made WorkCover claims before. He said he always had help with his WorkCover Claim Forms because he was dyslexic. He said his mother would have helped him with this Claim Form. His dyslexia does not explain why he did not claim injuries to his right shoulder and neck if he was experiencing pain at that time.
[21] T40
61The logical reason that Mr Moran claimed a left shoulder and right-hand injury in his WorkCover claim was because they were the two body parts in which he had pain on 22 February 2023.
62This leads me to draw an inference that he did not have right shoulder pain or neck pain at that time.
What did Mr Moran say and do about his pain after he lodged his WorkCover claim?
63On 23 March 2023, he attended his general practitioner for referral for an ultrasound. The general practitioner noted “report r[i]g[h]t arm pain on certain movement & pulling motion & overhead movement. No swelling.”[22] This is the first record of right arm pain, but there is no record of right shoulder or neck pain.
[22] Defendant’s Amended Court Book (“DCB”) 349
64He was sent for a left shoulder and arm ultrasound. That ultrasound was reported on 23 March 2023 as follows:
“Overall Conclusion: Left sided Sub acromial Bursitis Bursal Impingement on abduction.”[23]
[23] DCB 349
65On 4 April 2023, Mr Merenstein assessed Mr Moran. Mr Merenstein had available Mr Moran’s Claim Form, the Employer’s Injury Claim Form, an email and “additional information”. I do not know what the additional information available comprised.
66Mr Merenstein reported Mr Moran was in a good mood, relaxed and happy. He recorded the following history:
(a) Mr Moran was employed with the employer for about five months;
(b) On 21 December 2022, he was installing a large whiteboard weighing about 93 kilograms;
(c) He was assisted by a co-worker but during the installation he sustained an injury to his left shoulder and right hand and both became quite painful;
(d) He continued working despite the pain, with a break over the Christmas period. He continued his tasks with difficulty until the end of January 2023. His tasks were physically fairly arduous and as a result of interpersonal difficulties with some of the other employees, he decided to resign his position;
(e) After ceasing work he continued to have pain and discomfort in his left shoulder and right hand. He decided to go to his general practitioner. An ultrasound of his left shoulder was organised and this confirmed the presence of a left-sided subacromial bursitis and subscapularis tendinopathy; and
(f) His right-hand symptoms had largely abated and had recovered about 90 per cent. This was not the case with his left shoulder.
67There is no record of any right shoulder or neck pain. Mr Moran says he told Mr Merenstein about the right shoulder issue, and Mr Merenstein responded:
“‘I don’t believe at this time the right shoulder is an issue, it’s the left shoulder.’ So we talked about it but he didn’t put it in his notes.
…
We had another - he had a few other things he sort of said to me private - sort of, you know, on the side but basically he focused on my left shoulder because I said to him, ‘Both are sore’ and he goes, ‘No’ - you know, that’s when he said left shoulder. I couldn’t believe it - - -.”[24]
[24]T69
68I do not accept Mr Moran’s evidence that he raised his right shoulder pain with Mr Merenstein, who refused to make a note of it. It is more likely, given the absence of any reference to right shoulder pain to any of his doctors until May 2023, that he did not raise it with Mr Merenstein.
69On 13 April 2023, he attended a different general practitioner for a WorkCover consultation. The general practitioner has recorded he was injured on 22 December 2022 when moving 4.5-metre shelving awkwardly, and that he initially injured his right hand. The notes recorded:
“… now left shoulder painful after 1 week from awkward moving position
workplace bullying happened - so last day of the job - on 19th [J]an[uary 2023].
not doing any job now
…
Examination:
clicking in left shoulder
[Ultrasound] said - left subacromial bursitis with bursal impingement on abduction.”[25]
[25] DCB 354
(sic)
70There was no mention of his right shoulder or neck at this attendance.
71He attended his general practitioner again, on 18 April 2023, who noted there had been no treatment for left shoulder yet, and recorded:
“right middle finger jammed - during 22nd [D]ec[ember] injury time
still sore
Examination:
PIP joint - tender to touch - (has recovered already and now pain again)
lump near wrist joint – no pain
didn’t seem anything to me.”[26]
[26] DCB 355
(sic)
72No mention of right shoulder or neck pain is recorded.
73He attended his general practitioner again on 24 April 2023, for a certificate of capacity. No mention of neck or right shoulder is recorded at that consultation.
74On 26 April 2023, he saw his general practitioner, who noted they had a long discussion and that Mr Moran “doesn’t want steroid inj[ection] into his left shoulder”. The general practitioner’ notes recorded:
“explain[ed] - he has … capacity in [his] right hand, and both legs
can’t do – no capacity
he complaint – his right middle finger knuckle pain - ? from work injury
…
Reason for visit:
… left shoulder bursitis.
…
Imaging request[ed] … .”[27]
(sic)
[27] DCB 356
75It is not clear whether this records the general practitioner’s view that Mr Moran had capacity in his right hand and both legs and that she could not “do” a “no capacity” certificate, or whether this records Mr Moran’s view that he had capacity in his right hand and both legs. In any event, there is no record of complaint about his right shoulder or neck.
76On 24 May 2023, Mr Moran saw Dr Roshan Mendis, who remains his treating general practitioner. Dr Mendis noted that Mr Moran complained of injury at work on 22 December 2022, and recorded:
“… Patient injured his right middle finger and the left and right shoulder. Since the injury patient has been for physiotherapy 3 sessions and the condition is still the same.
Shoulder pain ++++ L ˃ R [left more than right]
Constant pain now, Pain increase on movement.
On Examination
Tender shoulder with restricted movements, Restricted abduction
which is worse with a is worse
so for initially injury was mainly the left shoulder right hand and now complains of pain on examination, increase range of movements on the right side compared to the left side.”[28]
(sic)
[28] DCB 450
77This appears to be the first record in the medical notes of a complaint about right shoulder pain. There was no record of neck pain.
78Mr Moran had an ultrasound of his right shoulder on 26 May 2023 which noted moderate bursal thickening and no rotator cuff tear.
79On 5 June 2023, Dr Mendis noted:
“Complaints of ongoing right shoulder pain for the last 4 weeks. Patient also has … ongoing problems with the left shoulder … .”[29]
[29] DCB 450
80Mr Moran had further attendances with Dr Mendis on 30 June 2023, 28 July 2023, 25 August 2023, 6 September 2023, 24 October 2023, 17 November 2023, 8 January 2024, 23 January 2024, 6 February 2024 and 27 February 2024. Each attendance was for bilateral shoulder issues. There is no record of neck pain at any of those attendances.
81On 18 August 2023, Mr Moran had an MRI scan of the left shoulder. This showed mild impingement syndrome with bursitis and supraspinatus-infraspinatus tendinosis but no tear.
82On 21 September 2023, an MRI scan of the right shoulder showed mild tendinosis with minimal intralaminar tearing.
83On 17 November 2023, Dr Mendis referred Mr Moran to orthopaedic surgeon, Mr Derek Carr, for orthopaedic assessment. The referral noted:
(a) Left shoulder injury 22 December 2022 and reported that he had a tender shoulder with restricted movements and restricted abduction; and
(b) Right shoulder pain April 2023 due to overuse.
84No reference was made to neck pain in the referral to Mr Carr.
85Mr Moran saw Mr Carr on 10 January 2024. Mr Carr noted the following history:
“… He is right hand dominant and in December 2022 he describes sustaining an injury while assisting holding a heavy rack in a factory. This tilted and he injured his right hand initially, and subsequently developed pain in his left shoulder and followed by right shoulder pain three weeks later. …
...
I have reviewed both MRI scans and cannot identify any surgical correctable pathology. There was no evidence of any significant bursitis or joint effusion. Overall alignment of all bones are relatively normal. Rotator cuff tendons were intact and there was no … [thick] inflamed bursa.”[30]
[30] DCB 65
86Mr Carr recommended non-surgical management. He considered there was centralisation of a pain syndrome and Mr Moran would benefit from pain management and psychological treatment. He did not see a need for corticosteroid injections.
87On 27 March 2024, Dr Mendis noted that Mr Moran had seen a physiotherapist “this time for his ongoing neck problem and shoulder problem”. This is the first reference that I have been able to find in the medical records of any neck problem.
88On 22 May 2024, Mr Moran was seen by pain specialist, Dr Gavin Weekes. Dr Weekes noted the following history:
(a) He was installing some shelving in his work as a builder, resulting in a twisting type injury to both shoulders. Unfortunately, since that event, he has described the following symptoms:
(i)neck pain which radiates to both sides of his head and can travel into the frontal region;
(ii)neck pain which can also travel into both shoulder blades and down both upper limbs, mostly going to the shoulder but occasionally travelling down his arm intermittently;
(iii)on the right side it is associated with pain in the ulnar two digits intermittently; and
(iv)on the left side it can be associated with paraesthesia in the ulnar two digits intermittently.
89Dr Weekes reported that Mr Moran was describing neck pain as his worst pain. He referred Mr Moran for an MRI scan of his cervical spine.
90On 23 May 2024, Dr Mendis saw Mr Moran and noted that he had consulted a pain management specialist for the first time yesterday and had been referred for an MRI scan of the base of the skull and neck.
91On 5 June 2024, Mr Moran underwent x-ray of the cervical spine which was unmarkable. An MRI scan of the same date showed cervical spondylosis. At C3‑4, there was joint arthropathy with severe foraminal narrowing. At C5-6, there was mild foraminal narrowing. There was no disc bulge, canal stenosis or neural impingement. There was no compression fracture, and vertebral body heights were preserved. The paravertebral soft tissues were unremarkable.
92On 12 September 2024, Dr Mendis noted that Dr Weekes had recommended a C4 nerve root block for diagnostic and therapeutic purposes.
93On 19 December 2024, Mr Moran underwent a bilateral third occipital nerve, greater occipital nerve, lesser occipital nerve and C3 medial branch block plus left-sided-C4 nerve root block.
94On 20 January 2025, Dr Weekes noted that the nerve block had helped with headaches but not with his neck pain. Dr Weekes referred him for neurosurgical assessment.
95On 12 March 2025, Mr Moran saw neurosurgeon, Dr Hazem Akil, for surgical assessment. Dr Akil noted that, as the C4 nerve sheath block did not result in any improvement of his neck pain, this “completely rules out the option of surgery”.
96On the basis of the evidence of these attendances and complaints of pain, I do not accept Mr Moran experienced pain in his right shoulder and neck at the time of the incident, over the Christmas break, on his return to work, or at the time of making his WorkCover claim in February 2023.
What does Mr Moran’s prior history of attendances on doctors show about the likelihood he would have attended his general practitioner to complain of pain?
97There are some people who do not attend doctors frequently, and a failure to attend a doctor to complain about pain would not give rise to an inference that the person was not in pain. Mr Moran is not such a person.
98An examination of his medical records shows he attended his general practitioner frequently. I accept that, because he has diabetes and a thyroid condition, he is likely to attend more regularly than other people for diabetes management and scripts. Setting aside attendances for diabetes management and repeat prescriptions, his medical records show he had frequent attendances on his general practitioner. Between 2007 and February 2023, he attended for:
· stress and anxiety at work;
· a bruised finger;
· shoulder pain;
· ankle pain;
· a knee injury after falling off his bike;
· a right index finger injury at work;
· rhinitis;
· wheezy cough;
· an injured left forearm at work;
· lower back injury at work;
· referral to a marriage counsellor;
· insomnia and food poisoning;
· dizziness and nausea;
· an upset stomach, diarrhoea and gastroenteritis;
· sinus pain;
· sore throat;
· bloating and burping;
· right epicondylitis from work;
· left epicondylitis from work;
· neck pain;
· facial boil;
· ear pain;
· tightness in chest;
· referral to a cardiologist for reassurance;
· referral to a chiropractor for neck, shoulder and lower back pain;
· request for a colonoscopy; and
· nail infection.
99He called an ambulance on 19 December 2022, two days before the work incident. The ambulance notes record he had sleeplessness, anxiety and left lateral chest wall discomfort radiating to his left upper arm. He was provided reassurance.
100He had many medical attendances seeking a medical certificate for work because of an upset tummy, a viral illness or the like. He had many attendances for certificates for WorkCover relating to his numerous work-related injuries, including long periods when he was off work, on modified duties and on return-to-work programs.
101I conclude from my examination of the medical records that Mr Moran was not a reluctant or infrequent visitor to the doctor, but attended regularly, even for minor ailments.
102This supports an inference that, had he experienced any, or any significant pain, in his shoulders or neck, he would have attended his doctor, complained about his pain and sought treatment.
Does Mr Moran’s history of WorkCover claims support a finding that he is likely to have delayed reporting his injury?
103Mr Moran disclosed some of his previous WorkCover injuries in his affidavit but accepted he had made additional WorkCover claims which he had forgotten about. He accepted that, including this claim, he has made seven WorkCover claims for carpal tunnel syndrome, right epicondylitis, left epicondylitis, two claims in relation to his lower back pain, and a finger injury.
104He said, in oral evidence, “I didn’t like to do the WorkCover stuff”.[31] He said:
“To be perfectly honest, when I’ve injured myself at work, I’ve delayed reporting it because I don’t want to report it because at the end of the day, you know, being a male, it gets to the point where I get myself in trouble at work because I don’t do an incident report straight away and that’s always been a bit of - you know, my thing because no-one wants to go on WorkCover.”[32]
[31]T23
[32]T23
105I asked him what he meant by “being a male, I get myself into trouble at work”. He said:
“What I mean, being a male and you hurt yourself, you’re not complaining, that’s the word. I’m not complaining about - you know, you hurt yourself, you just go on with your job, you just keep going, you know, you don’t say anything basically.”[33]
[33]T24
106I do not know whether he delayed making some of his prior WorkCover claims. I have available only a limited number of documents relating to prior WorkCover claims.
107On 18 November 2009, he made a WorkCover claim for an injury to his right index finger. He attended his doctor on that same day in relation to his finger. I can be confident that he did not delay in attending his doctor or making a WorkCover claim because he had attended his doctor on 16 November 2009 after falling off his bike and did not mention the right finger on that occasion. Therefore, on the balance of probabilities, the injury to his right index finger happened on 17 or 18 November 2009.
108On 7 October 2011, he made a WorkCover claim for low back pain. He ceased work on that day and did not return until 30 January 2012, working 9 hours a week and gradually resuming full-time duties by 6 August 2012. The date of injury is recorded as 4 October 2011. He attended his general practitioner on 7 October 2011 and the general practitioner noted he was injured at work two days before.
109Neither of these two claims support Mr Moran’s evidence that he delayed making a WorkCover claim, nor did he delay seeking medical attention.
110Even if he delayed making some of his other WorkCover claims, his medical records do not support a finding that he generally delayed attending his doctor when he had illness or injury. Not all the medical notes record the date of onset of symptoms; however, when a date of onset is noted, the records show that Mr Moran sought medical treatment and advice fairly promptly. For example:
(a) on 7 October 2011, his general practitioner has noted that he injured his lower back at work two days ago;
(b) on 24 November 2012, he attended after feeling “unwell yesterday”;
(c) on 7 January 2013, he attended after waking up that day feeling nauseous;
(d) on 29 January 2013, he attended after injuring his back at work on 24 January 2013;
(e) on 18 December 2013, he attended after having a “funny gut for past 2 to 3 days”;
(f) on 1 September 2014, a Monday, he attended for a medical certificate after having diarrhoea since Saturday;
(g) on 9 February 2017, he attended after have pain in his neck since a car accident on 4 February 2017 and after seeing his osteopath on 7 February 2017; and
(h) on 5 June 2018, he attended with left tennis elbow. The date of onset of symptoms is not recorded but subsequent entries suggest he had experienced pain in his left elbow in about late May or early June 2018.
111I do not accept that Mr Moran generally delayed seeing, or did not report pain, symptoms or injuries to his medical practitioners, even if he did delay in making some of his WorkCover claims. The evidence shows he attended fairly promptly when experiencing any symptoms, including symptoms that arose from a work injury, and attended regularly for follow up.
112I do not accept his evidence that he did not mention his pain at his general practitioner consultations, prior to 21 February 2023, because “I had to get WorkCover approval”. He said he was:
“… obviously working out what my rights were, so I think that’s - that’s probably what was going on at that time as well, so I was juggling a few things, and I think - you’re talking about nearly three years ago, to remember everything, it’s impossible. … .”[34]
[34]T64
113I accept that it is impossible to accurately remember everything from many years ago, but this evidence cannot be right. He was not waiting for WorkCover approval at the time of those attendances because he had not yet made a claim.
114Despite his professed dislike of making WorkCover claims, he made numerous WorkCover claims and was aware of his entitlement to make such a claim, the circumstances in which he could make such a claim, and the process for making such a claim.
115Although he maintained that “just because I’ve had WorkCover claims doesn’t mean I know the system very well”,[35] he did know that he had to submit an incident report[36] and complete a claim form, and he was obviously aware, when he attended his general practitioner on 21 February 2023, that he required medical support for his claimed injury.
[35]T23
[36]T23
116His evidence that, although he was immediately aware of significant pain in his shoulders and neck after the incident, he thought it was a pulled muscle and would go away, could explain some brief delay over the Christmas period; however, it cannot account for the entirety of the delay, especially given his evidence that his pain worsened over the Christmas period and then immediately and significantly increased upon his return to work. His suggestion that, because he is a man, he is reluctant to complain about pain, is not supported by the medical records.
117I do not accept his evidence that he was reluctant to make a WorkCover claim because he worried his job was in jeopardy, given his history of prior WorkCover claims. However, even if this is correct, if he were in the sort of pain he claims prior to February 2023, on the balance of probabilities, he would have made a WorkCover claim immediately upon leaving the employment on 20 January 2023.
118Instead, he applied for Centrelink benefits and attempted to find work as a handyman.[37] This supports a conclusion that he was not in pain at that time.
[37] DCB 82-83, 344
119Had Mr Moran been experiencing any, or any significant shoulder or neck pain, he would have attended his general practitioner promptly, even if he did not make a WorkCover claim promptly.
Does the video surveillance impugn Mr Moran’s credit?
120The VWA showed video evidence which had also been shown to a number of experts.
121The video footage showed Mr Moran unloading some bags of empty plastic bottles and cans and assisting his mother put them into a recycling deposit machine. He gave evidence that this was an activity he and his mother did weekly to raise funds for his church. He was shown pushing a trolley. He said most of the time he was pushing the trolley with his belly. He said, to the extent that he was engaging in the activity, he was doing it because he wanted to help his mother and because he was stubborn. The video showed him begin to reach up to close the car boot. He said he went to do that but stopped. He said the bags he was lifting and carrying were very light, and contained empty cans and plastic bottles.
122Occupational physician, Dr Tim Hwang, opined that the range of motion displayed by Mr Moran in the video was somewhat inconsistent with what he had observed on clinical examination of Mr Moran. Dr Awad opined that the video footage did not show Mr Moran doing anything beyond his stated capacity. Orthopaedic surgeon, Mr Russell Miller, opined the video footage did not cause him to alter his findings or conclusions.
123I am not persuaded that the video footage showed Mr Moran doing anything he said he was not able to do. Numerous doctors have noted his reluctance on clinical examination to attempt movements that he thought might provoke pain. The fact that Dr Hwang’s clinical observations of Mr Moran differed slightly from his observations of Mr Moran in the video footage may be as a result of Mr Moran’s reluctance to participate in clinical examinations where he fears pain will be provoked. In any event, I am not satisfied that the video footage significantly damages Mr Moran’s credit.
Did Mr Moran exaggerate his evidence?
124Mr Moran tended to exaggerate his evidence. This supports my finding that he was not a reliable witness. This exaggeration may not have been an attempt to deliberately mislead the Court, but may have been a result of a combination of his hyperactivity and a desire, whether conscious or not, to bolster his case.
125There were a number of minor examples of his tendency to exaggerate. He described having an “allergy” to cortisone, but no such allergy was recorded or diagnosed. He decided he had an allergy because he felt nauseous after having a cortisone injection. He described himself to numerous doctors as being in building and construction and in court as someone who was “on the tools” doing jobs that “are in harm’s way” and said that “at the end of the day if you work on a building site you have to be 100 percent”. However, he was not a person who had primarily worked on construction sites, in harm’s way or in the building industry. His work had been varied, including in gaming, retail, security and for a lengthy period in maintenance doing handyman-type jobs. These and other examples are of little consequence but contributed to my view that his evidence was exaggerated and he was unreliable.
126There were two aspects of his evidence where his exaggeration was more significant.
The incident
127When describing the incident, he said Ms Adlam’s son –
“… must have heard a yelling, he ran down from the top of the - because he was upstairs, ran down to the top of the pillar, lowered it down with the three of us and that’s what saved me and Emma’s bacon to be perfectly honest.”[38]
[38] T29-30
128He said:
“… I'm telling you right now that what I - what - her son was there and he was the one who lifted the top of the pillar down, lowered it down, otherwise we were - we were gone for - gone for good. … .”[39]
[39] T32
129He went on:
“… If he wasn’t there, and that goes through my head all the time, it flashes like a nightmare, if he wasn’t there, I always wonder if he wasn’t there what really could have happened. And he was, thank God.”[40]
[40]T32
130And later:
“… if he hadn’t come down, I couldn’t imagine what would have happened. No-one was there. It was me and … [Emma’s son] and she knows what really happened. I’m telling the truth. At the end of the day, her son saved our bacon. I’ll say forever and a day.”[41]
[41]T35
131Even if I accept the incident unfolded exactly as Mr Moran describes, it is difficult to understand how or why either he or Ms Adlam were “gone for good”, or in any significant danger. When asked what would have happened if Ms Adlam’s son had not come, he accepted that the pillar would have fallen to the ground but he could not describe or explain how or why it could have injured him. He said, “I couldn’t imagine what would have happened”. Eventually he said that because his fingers were in the bolt holes in the pillar, he could have “lost my fingers”. It is difficult to see how this could have happened.
132His description of this event was significantly more graphic than the description he gave elsewhere, including in his Claim Form, his affidavit and to doctors.
133I conclude that he gave an exaggerated account of the circumstances of the incident, to render it a more dramatic and frightening event, in an attempt to bolster his claim that his symptoms, including his psychiatric symptoms, were caused by the incident.
Degree of pain
134Mr Moran told consultant occupational medicine physician, Dr Chung Yew Chee, that he would rate his pain as “twelve out of ten”[42] if he could. Mr Moran said he had told multiple people something similar. He said in oral evidence, “sometimes my pain feels like it’s worse than ten out of ten”. He said he did not forget conversations “when it comes to pain”.[43]
[42] PCB 86
[43] T134
135He said that, while he was in court, his neck was “ten out of ten” pain. He said:
“When I sleep I’m in pain. When I wake up I’m in pain. I’m in pain every day. There’s not a day that goes by -it might change its level, it might increase to 10 out of 10 or go down a sort of an eight out of 10 but it’s always there.”[44]
[44] T124
136He said it was never lower than an eight out of ten.[45]
[45] T124
137I attempted to clarify his understanding of the commonly used pain scale whereby patients are asked to rate their pain from zero to ten, where ten is the worst pain you can imagine. Mr Moran agreed that what he was experiencing was the worst pain he could imagine.
138He said “ten out of ten” means –
“… it’s every day. It’s like, especially my neck, it’s just like someone is getting a hot cue and it feels like it’s just burning and it’s constant. It’s like having a wisdom tooth ache constant every day.”[46]
[46] T178
139It is always difficult to assess someone’s subjective experience of pain. I observed Mr Moran over a number of hours in the witness box. He was lively and engaged, and not obviously experiencing the sort of severe pain one would imagine as being ten out of ten pain. I have never heard a plaintiff describe the pain they were in as ten out of ten, in circumstances where they were able to attend court, and answer questions over a fairly extended period, without the use of any analgesia beyond Panadol.
140I accept that Mr Moran’s assessment of pain is subjective, but an assessment of his pain as “ten out of ten” is not consistent with his actions, his presentation, or his demeanour. It is an exaggeration to bolster his case.
141My findings that Mr Moran tended to exaggerate his evidence contributes to my finding that his evidence is generally not reliable, in relation to the timing of onset and location of pain.
Did Mr Moran have a previous shoulder condition?
142His general practitioner records show on 17 January 2008, Mr Moran attended with a two to three-month history of increasing grinding in his shoulders. He was noted to be experiencing pain in the superior aspect of both shoulders. He was referred for diagnostic imaging. At that time, he was noted to be doing weights four times a week.
143On 23 January 2008, he had a further general practitioner attendance to discuss the results of his ultrasound and x-ray. He was diagnosed with subacromial bursitis and referred for an intra-articular steroid injection. He was prescribed Voltaren.
144On 29 January 2008, he returned to his general practitioner, who noted he had had a cortisone injection with no great improvement as yet.
145Although Mr Moran could not recall that he had had this cortisone injection into his left shoulder, he said he had had an allergic reaction to cortisone[47] and that this precluded him from future cortisone injections.
[47] T75
146He was pressed on his evidence that he could not recall having a cortisone injection in his left shoulder, but he maintained that he could not recall this, despite having had what he described as an allergic reaction. He said taking the cortisone made him feel nauseous, like taking penicillin, and he formed the view that he was allergic.
147On 11 February 2008, he had a further general practitioner appointment where he was noted to be still having pain, and difficulty paying for his physiotherapy.
148On 4 April 2008, he had a further general practitioner consultation to discuss his shoulder and he was referred to a chiropractor.
149On 12 February 2010, he attended with shoulder and ankle pain. He was noted to have chronic shoulder pain. He was sent for diagnostic imaging.
150On 24 February 2010, he had a bilateral shoulder ultrasound which was reported as follows:[48]
“Similar pathology was seen in both shoulders.
All components of the rotator cuffs are of normal thickness and echotexture. No rotator cuff tear or calcification is seen in either shoulder. The long head of biceps tendons are normal.
Bilaterally, there is moderate thickening of the subacromial bursae consistent with significant bursitis.
Stirling declined any injection stating a previous bursal injection had been of no help.”
[48] PCB 15
151On 24 March 2022, he had a consultation seeking a referral to a chiropractor for a “neck and shoulder condition”.
152On 26 March 2022, he attended chiropractor, Dr Harris Delfinis, for neck, shoulder and lower back pain.[49]
[49] DCB 351
153Mr Moran said these attendances were not in relation to any particular pain, but just a general tune up due to the physical nature of his work; however, I note that at this time, he was not employed. He was, however, regularly attending the gym and lifting significant weights, as he acknowledged.
154I am satisfied that Mr Moran had a prior history of bilateral significant shoulder bursitis.
155Mr Moran’s evidence was that his prior shoulder condition was not caused by his work and that it had resolved.
What impact does Mr Moran’s unreliability about the timing of onset of pain and his prior shoulder condition have on the medical opinions?
156Mr Moran’s unreliability renders the medical opinions themselves unreliable.
157Where a claim depends largely on subjective complaints of pain, the reliability of evidence about the experience of pain is particularly important. The timing of the onset of pain is crucial to the medical opinions as to whether, on the balance of probabilities, the incident was the cause of the left shoulder, right shoulder or neck injuries.
158This is because it is apparent from the medical opinions that it is the experience of pain that enables the doctor to conclude that the incident caused an injury, and is causally related to the symptoms Mr Moran now claims. If he did not have any pain at the time, or shortly, after the incident, the underlying pathology shown on radiology would not form a basis for attributing those symptoms to the incident.
159Not all doctors opined on the cause of Mr Moran’s injuries. Those that did, said the following:
(a) Mr Merenstein recorded a history of immediate onset of left shoulder pain (11 April 2023). On the basis of this history, he opined:
“I believe that the worker’s injuries occurred as a result of lifting heavy weights whilst installing a whiteboard in the course of his occupation.
Based on the history, I believe this is a new injury contributed to by his employment.”[50]
[50] DCB 83
(b) Mr Merenstein’s opinion of the causal link between the incident and the injury was based on the history of immediate pain, rather than the pathology. Mr Merenstein’s opinion is undermined by the incorrect history of immediate onset of pain.
(c) Dr Brett Halliday, orthopaedic surgeon, records that Mr Moran was not aware of any shoulder injury at the time of the incident on 21 December 2022 but noticed left shoulder pain when he returned to work after Christmas. After attending his general practitioner, he was diagnosed with bursitis on ultrasound in March 2023. This was confirmed by MRI on 18 August 2023. Dr Halliday recorded a history that Mr Moran began to develop right shoulder issues, but that Mr Moran was not exactly sure when they started. An ultrasound of the right shoulder was done on 26 May 2023, which showed moderate thickening of the bursa. This finding was not confirmed on MRI on 29 September 2023, which showed only tendinosis of cuff and a minor labral tear of indeterminate age. Dr Halliday said the presence of a left shoulder condition does not result in “overuse” of the right shoulder in someone who is not working, and he could not relate the right shoulder condition to the work injury of December 2022. Dr Halliday opined that, on the balance of probabilities, the left shoulder bursitis was likely related to the lifting incident.
(d) Dr Halliday had a different history in relation to the timing of the onset of pain to that provided to Mr Merenstein. Nevertheless, it is also an unreliable history. Because Dr Halliday has an unreliable history, his conclusion that, on the balance of probabilities, the left shoulder bursitis was related to the incident, is impugned.
(e) Dr Halliday had Mr Merenstein’s report for review but appears not to have had any other material. He did not have any history of prior shoulder injury.
(f) Dr Halliday noted that the level of pain reported was out of proportion to the demonstrable pathology, particularly on the right shoulder, where there was a relatively normal MRI scan. The ultrasound and MRI scan did not, in his view, demonstrate the right shoulder injury was caused by the incident. I infer that the timing of the onset of pain is highly relevant to a causal finding. The onset of right shoulder pain some months after the incident, meant it was not the cause of the right shoulder pain, in Dr Halliday’s view.
(g) Mr Miller recorded a history of sudden, immediate bilateral shoulder pain. He recorded that Mr Moran worked “with difficulty” until the Christmas break, and had ongoing symptoms on his return to work. He recorded the current clinical status “is regarded as being substantially work-related”. It is not clear whether this is his own opinion, or whether he is accepting the opinion of others, given that his task was to perform an orthopaedic assessment rather than provide a causation opinion. He does note that the relationship between the work and the neck and shoulders is “complex and multifactorial” and includes the fact that Mr Moran is diabetic, has had prior shoulder problems, has done significant physical work over a protracted period of time, had a work injury on 21 December 2022 and developed mental health issues including a Chronic Pain Syndrome.
(h) If Mr Miller is expressing his own opinion that the clinical condition is substantially work related, that opinion is impugned by the incorrect history of immediate onset of pain. Mr Miller’s opinion that the relationship between work and the injury is “multifactorial” and includes his prior shoulder problems, suggests that the prior shoulder issue is relevant to the assessment of the cause of Mr Moran’s injury. Neither Mr Merenstein nor Dr Halliday had a history of prior shoulder problems. It is unknown whether such a history would have impacted their opinion and, if so, in what way;
(i) Dr Sachin Khullar, sport and exercise medicine physician, had a history of left shoulder pain immediately, or very soon after the incident. He was asked to assess impairment and to apportion the injury. He did not opine as to the cause of the injury. He did not consider any apportionment was justified as Mr Moran “did not report any pre-existing right and left shoulder issues”. That history is not correct.
(j) In a subsequent report, Dr Khullar had access to the 2010 ultrasound report which showed bilateral shoulder bursitis. He opined “no previous impairment was mentioned in the records sent to me to justify and apply any apportionment from previous injuries”.[51] I take this to mean that, although Dr Khullar had seen the ultrasound, he did not consider apportionment appropriate, because there was no report of any impairment resulting from the ultrasound findings.
(k) However, the medical records from 2008 and 2010, which were not provided to Dr Khullar, showed there had been impairment of the shoulders in 2008 and 2010, resulting in pain and requiring treatment. Given that the prior shoulder impairments were many years ago, it may be that knowledge of that prior impairment would not have changed Dr Khullar’s assessment that apportionment was not appropriate. However this would be contrary to Mr Miller’s opinion that the prior shoulder injury was relevant to the relationship between work and Mr Moran’s injury.
(l) Dr Hwang also recorded a history of bilateral shoulder and neck pain soon after the incident. However, Dr Hwang noted that the history was not supported by the documentation. He opined that the incident could be expected to have caused muscular strain or soft-tissue injury to the left shoulder and the right hand, which would have resolved. He noted the features and symptoms Mr Moran reported were greater than expected for the identifiable pathology of the shoulder. He did not consider there was any clinical documentation of cervical injury of significance. He considered Mr Moran had a presentation of chronic pain which was not consistent with underlying degenerative changes. That is, that the pathology could not account for the degree of pain described. He considered there was an exaggerated pain response which may reflect voluntary or involuntary inputs, with significant psychosocial involvement. In his view, Mr Moran’s restricted movement could not be explained by any identifiable pathology noted radiologically.
(m) Dr Hwang is the only doctor to have grappled with the difference between Mr Moran’s history and the documentation.
(n) Dr Hwang’s attribution of a left shoulder soft-tissue injury to the employment is impugned by the history that Mr Moran had left shoulder pain immediately or within a short period after the incident.
[51] DCB 107
160I have already found Mr Moran’s evidence about the timing of the onset of pain and the location of that pain is unreliable. The documentation is more reliable evidence of the timing of onset of Mr Moran’s pain. I therefore give significant weight to Dr Hwang’s conclusions.
161Dr Hwang and Dr Awad provided differing opinions about the pain and restriction consequences they would each expect from the pathology shown on radiology, particularly relating to the neck pain. However, neither helps me determine whether the pathology shown was caused or contributed to by the work incident, particularly in circumstances where the onset of neck pain was delayed by more than a year.
162If Mr Moran sustained any left shoulder injury during the incident, Dr Hwang says it is likely it resolved. I accept that opinion, because Mr Moran returned to work, returned to the gym and made no complaints to doctors or others for two months.
163Dr Hwang cannot account for the level of reported symptoms on the basis of any identifiable ongoing injury in relation to the incident. Dr Hwang concludes that Mr Moran’s incapacity appears to relate to subsequent symptoms of uncertain diagnosis. I accept that opinion, because I am not persuaded that Mr Moran had immediate onset of pain from the incident. His pain developed later and therefore its cause is uncertain.
164The medical opinions are significantly impugned by the unreliable history provided by Mr Moran. The doctors have concluded that the incident caused the injury because Mr Moran experienced pain immediately or shortly after the incident.
165If the doctors had a history that:
(a) the left shoulder pain occurred in around February 2023, two months after the incident and after Mr Moran had returned to the gym and to work; and
(b) the right shoulder pain occurred in about April 2023, about four months after the incident; and
(c) the neck pain occurred in about March 2024, about fifteen months after the incident;
I am not satisfied that they would have considered that the injury was caused by the incident.
166In the context of unreliable evidence from Mr Moran about the timing of onset and location of pain, and the impact that this unreliability has on the opinions of those doctors who opined on the relationship between the work and the injury, I am not satisfied that Mr Moran has proved that he had a work injury to his left shoulder, his right shoulder or his neck.
Can Mr Moran rely on the VWA’s conduct as an admission that he has a work injury that prevents him from employment for the foreseeable future?
167Mr Moran’s WorkCover claim was accepted by the VWA agent, Allianz Australia Workers’ Compensation (Victoria) Limited (“Allianz”), on 11 April 2023.
168At the commencement of this proceeding, counsel for the defendant said there was a factual dispute in relation to the incident said to have caused Mr Moran’s injury.
169Ms Adlam completed the Employer Injury Claim Report on 22 February 2023. At the end of that form she provided “additional information” in which she said Mr Moran had not reported any injury and that, beyond complaining of a sore hand, Mr Moran had not made any complaints during his employment.
170In her affidavit, Ms Adlam gave an account of the incident Mr Moran says caused his injury, which was very different from the account given by Mr Moran.
171At the start of the hearing, the VWA flagged that it would dispute “any Sepe[52] argument because the employer has disputed this in the employer report form,[and] has provided its consistent version of events which is contrary to the plaintiff’s version”.
[52] Sepe v Club Italia Sporting Club Inc & Anor [2023] VSC 191 (“Sepe”)
172Counsel for the defendant said Mr Moran was put on notice that this factual dispute was clearly an issue between the parties and the defendant would submit that the plaintiff’s failure to cross-examine Ms Adlam meant her evidence should be preferred to his.
173Counsel for Mr Moran said Mr Moran relied on “what’s been signed up to by the defendant as the basis for the claim which was accepted. And we don’t … need to run into the Sepe dispute again, it was an accepted claim and benefits were paid under the claim, based on the defendant’s own statement.”[53]
[53]T20
174In re-examination, Mr Moran disclosed he had been informed that his payments of weekly compensation would continue beyond 130 weeks. Mr Moran said this constituted an admission that the defendant accepted he was totally incapacitated for work for the foreseeable future.
175The VWA objected to Mr Moran relying on any such admission, on the basis that, by raising this for the first time in re-examination, it had been denied an opportunity to cross-examine Mr Moran about that evidence. The VWA also objected to reliance on any such admission because Mr Moran had said he would not “need to run into the Sepe dispute”. The VWA understood Mr Moran would not be submitting that the VWA’s acceptance of the claim was an admission. The defendant said that, had it known such a submission would be made, it would have run its case differently.
What is the “Sepe” dispute?
176In Sepe, Tsalamandris J held that Mrs Sepe’s receipt of ongoing weekly payments was an admission by conduct on the part of Club Italia which was admissible evidence relevant to Mrs Sepe’s claim for damages. She held that a jury could be suitably directed as to the use of such an admission so it was not unfairly prejudicial to Club Italia.
177Justice Tsalamandris explained to the jury that weekly payments of compensation were only paid beyond 130 weeks if the employer’s agent accepted that the worker had an indefinite incapacity for any work. The employer’s agent had the authority to terminate those payments if it was satisfied that the worker had a capacity to perform suitable employment. She directed the jury that it could infer, from the evidence, that the employer’s agent had not sought to terminate Mrs Sepe’s weekly payments. She further directed the jury that the ongoing payment of weekly compensation was an admission by conduct that the defendant had accepted that Mrs Sepe had been totally incapacitated for work until now. She directed the jury that the admission did not mean they were bound to find that the plaintiff had been totally incapacitated until now. It was “no more than another item of evidence to consider and decide what weight, if any, to give to this admission”.[54]
[54] at [62]
178The so-called Sepe dispute is whether the payments of weekly compensation, beyond 130 weeks, is a matter that can be relied on as an admission by conduct that the employer has accepted that the worker has no capacity for work for the foreseeable future as a result of a work injury.
179In Ansett Australia Ltd v Taylor,[55] the acceptance of a WorkCover claim by the VWA, was held to be an admission that an injury was sustained at work. In that case, the Court of Appeal found that, for the purposes of a serious injury application, the VWA’s acceptance of a claim did not conclusively establish that the worker had sustained compensable injury, but did constitute an admission that the worker had sustained compensable injury. That is, it had evidentiary value but was not determinative of the question.
[55][2006] VSCA 171 (“Ansett”)
180Mr Moran’s counsel’s comments did not go as far as to say Mr Moran would not rely on the acceptance of the claim and the ongoing payments of weekly compensation as an admission by conduct. Ansett established that such an admission has evidentiary value only. Sepe deals with the question of whether payment of weekly payments is an admissible admission by conduct that the employer has accepted an ongoing incapacity for work.
181The evidence of acceptance of the claim and payment of weekly compensation beyond 130 weeks is admissible evidence in a serious injury application, where, inevitably, the judge hearing the serious injury application knows that a WorkCover claim has been made.
182Mr Moran can rely on the acceptance of the claim, and the ongoing payments of weekly compensation beyond 130 weeks, as an admission by conduct that he sustained an injury at work and has an indefinite incapacity for all work.
183It has evidentiary value but is not determinative of the claim, and is to be weighed together with all the other evidence.
What weight should be given to the admission?
184If, as a result of the work injury, Mr Moran was totally incapacitated for work for the foreseeable future, he would automatically meet the test for serious injury. An inability to work would inevitably be a consequence that was “at least very considerable”.
185Further, if, because of a work injury, Mr Moran was unable to earn at least 60 per cent of his “without injury” earnings from personal exertion, he would very likely also meet the test.
186Mr Moran relies on experts who variously opine that he has:
(a) no capacity for his pre-injury employment and a theoretical capacity for sedentary work for 15 hours a week but that, given his dyslexia and education, it is unlikely that there is suitable employment available (Dr Awad);
(b) no capacity for pre-injury duties but a capacity for some work with significant restrictions (Mr Miller);
(c) no capacity for suitable employment (Dr Saji Damodaran, psychiatrist); and
(d) no capacity for the roles identified as suitable employment by the defendant, being process worker, order picker, meter reader, electrical tester and tagger, sign installer, or courier (Ms Erin Williams, vocational assessment specialist).
187If Mr Moran has some theoretical work capacity, but is able to satisfy me that he has no capacity for his pre-injury duties, the onus falls on the VWA to show that:
(a) he retains capacity for suitable employment; and
(b) that employment would enable him to earn more than 60 per cent of his “without injury” earnings.
188Mr Moran says, even on the VWA’s case, he has no current capacity for employment due to his psychiatric condition (Dr Chee, Dr Damodaran and Associate Professor Shashjit Varma, psychiatrist), his prognosis is guarded and pain-dependent (Associate Professor Varma), and that, even if he retains some physical capacity for work, that physical capacity is overshadowed by his mental state (Dr Chee). Mr Moran says his incapacity for work, based on his psychiatric condition alone, is sufficient to meet the test.
189Mr Moran says the VWA has failed to identify suitable employment that would enable him to earn at least 60 per cent of his “without injury” earnings. The fact that the VWA has accepted, by payment of weekly compensation beyond 130 weeks, that he has such an incapacity, is a powerful admission that he meets the test. As a result, significant weight should be given to that admission.
190While such an admission by the VWA may ordinarily be very significant,[56] the significance should not be overstated.[57] I am required to look at the whole of the evidence, and form my own assessment of whether I am satisfied that the injury claimed meets the test.
[56] Ansett
[57] Sednaoui v Amac Corrosion Protection Pty Ltd (2017) 52 VR 247 (“Sednaoui”) at [61]
191This is particularly so in circumstances where the employer has, from the time the claim was lodged, disputed the alleged injuries and disputed Mr Moran’s claims of contemporaneous complaints of pain. (See Sednaoui and Sepe discussion about the applicability of a distinction between the conduct of the VWA and agent in Mert v Lawrence Pty Ltd.[58])
[58] [2016] VSC 348 at [8] – [11]
192Where there is a dispute about whether the injury occurred at work, it is appropriate to examine the circumstances in which the WorkCover claim was accepted in order to determine what weight to give the “admission by conduct”.
The circumstances in which Mr Moran’s claim was accepted by the VWA
193On 22 February 2022, Mr Moran lodged a Worker’s Injury Claim Form. In that form, he identified his injuries as “Left shoulder & bisep (sic) & the inner palm of my right hand”.
194The Employer Injury Claim Report included an addendum headed “Additional information to assist in the management of Stirling Moran’s claim”. In that addendum, Ms Adlam said:
“For the case of Stirling Moran, there was never an official report from him relating to sustaining an injury. Only a comment that he had a sore hand to Mark (his manager). When Mark asked Stirling why are you rubbing your hand? Stirling replied that it would be okay.
He continued working in various roles which involved physical work, without complaint. He also continued to attend his gym sessions.
Prior to Stirling leaving the company, he complained about his position and type of work within the company and the load of his personal problems as he had moved in with his Mother and Grandmother.
He requested a role that did not include duties in the position for which he was hired. Which left us with a mutual decision that we didn’t have a role/position for him. Please note that he was still in the New Employee probationary period.”[59]
[59] DCB 21
195It was not for Ms Adlam to dispute whether the injury had occurred at work. She is not a doctor. However her statement is contrary to Moran’s evidence that he immediately complained of shoulder and neck pain to her.
196The insurer for the employer, Allianz, sent Mr Moran for an assessment by Mr Merenstein.
197Mr Merenstein undertook a Telehealth examination of Mr Moran. Details of his report are set out above.
198Mr Merenstein recorded a medical history as follows:
(a) Generally well;
(b) On medication for diabetes;
(c) Allergic to penicillin;
(d) Mr Moran stated he had been attending a gym and lifting heavy weights;
(e) He left school at sixteen, enrolled in a carpentry apprenticeship for six months. He then worked as a labourer before going into security, then hospitality, and starting a cleaning company with his wife for two years. He worked as a subcontractor, undertaking light duties in the construction industry, before starting with the employer; and
(f) Mr Moran was currently attempting to work casually as a handyman.
199Mr Merenstein noted the presenting symptoms were pain and swelling in Mr Moran’s right hand associated with discomfort, and pain and reduction of movement in his left shoulder. He had had no treatment, apart from minor analgesia. Because the assessment was by Telehealth, there was no clinical examination.
200Mr Merenstein diagnosed a likely soft-tissue injury to the hand which had since resolved. He noted the ultrasound showed subacromial bursitis with impingement associated with subscapularis tendinosis. He concluded that the injuries occurred as a result of lifting heavy weights whilst installing a whiteboard in the course of his occupation. He concluded that, based on the history, this was a new injury contributed to by his employment.
201Mr Merenstein opined that Mr Moran had no capacity for pre-injury duties but the prognosis was uncertain and his bursitis would need to be treated. Mr Merenstein noted:
“Although the worker is an avid gym member and prior to his injuries would undertake weightlifting three to four times a week, Mr Moran does assure me that the pain in the shoulder commenced after the episode of installation of a heavy whiteboard and was not in any way related to his exercises.”[60]
[60] DCB 84
202There are a few errors in the factual background Mr Merenstein obtained. Mr Moran had not worked for the employer for about five months. He started with the employer on 30 November 2022 and therefore worked for less than two months. It is common ground that the alleged incident occurred when Mr Moran was helping with the installation of cantilever shelving, not a whiteboard.
203Mr Moran did not disclose to Mr Merenstein his pre-existing bilateral shoulder bursitis for which he had undergone ultrasound-guided cortisone injection in 2008, and investigation by ultrasound, confirming bilateral shoulder bursitis in 2010. Nor did he tell Merenstein that he had returned to weightlifting after the incident.
204Following receipt of Mr Merenstein’s report, Allianz wrote to Mr Moran on 11 April 2023 advising him that his claim for compensation had been accepted.
205In November 2023, Mr Moran was assessed for the VWA by Dr Brett Halliday. Dr Halliday had available Mr Merenstein’s report. The substance of that attendance is dealt with above. Dr Halliday’s opinion, provided to the claims agent, is impugned by the incorrect history.
206On 20 March 2024, Mr Moran submitted a Claim for Impairment Benefits. On that Claim Form, he identified his injury as a bilateral shoulder injury.
207On 4 June 2024, Mr Moran underwent a permanent impairment assessment with Dr Khullar. That attendance is dealt with above.
208On 11 June 2024, Allianz informed Mr Moran that his claim was accepted, in relation to a bilateral shoulder injury, but his claim for a psychological condition was rejected, on the basis that there was no diagnosis or treatment for a psychological condition. No claim was made, and therefore no assessment undertaken, for a neck condition.
209Dr Chee examined Mr Moran on 8 April 2025 and provided a report dated 17 April 2025. Dr Chee formed the view that Mr Moran had no current work capacity, but that his condition was not permanent. Dr Chee considered Mr Moran’s inability to focus and concentrate, and Mr Moran’s firm conviction that he had no physical capacity, was largely due to his psychological condition.
210Possibly on the basis of this, as well as other medical assessments that Mr Moran had no current work capacity, the VWA informed Mr Moran that his weekly compensation payments would continue beyond 130 weeks.
211The history provided to Mr Merenstein and Dr Halliday was not correct and therefore the conclusion that the incident caused the left shoulder injury is impugned.
212Dr Chee’s conclusion that Mr Moran had no current work capacity, whether due to his physical or psychological condition, may be correct. This does not mean, however, that the incapacity arises from a work injury. The opinions of Dr Khullar and Dr Chee provide little assistance in determining whether the injury was caused by the incident.
213Given my findings in relation to the opinions of Mr Merenstein and Dr Halliday, the payment of weekly compensation beyond 130 weeks does not establish that the incident has caused Mr Moran to be indefinitely incapacitated for work.
214As a result, I give little weight to the “admission by conduct” that Mr Moran sustained an injury at work that has rendered him indefinitely incapacitated for work.
Does an assessment of Mr Moran’s claim require me to determine how the claimed incident occurred?
215Mr Moran’s counsel submitted I should not be making decisions about issues of causation in this case,[61] and that the precise mechanism of injury is a matter for a jury to determine at a later date.
[61] T 20
216A serious injury application is a gateway provision only. The function of the Court is to determine whether the plaintiff meets the legislative test. Very often, causation is not in dispute, and the main question is whether the injury meets the test.
217However there are occasions where the question of causation must be decided, to determine whether the test is met. For example whether a degeneration of an underlying disease was caused by the work, or whether the work caused an aggravation of a pre-existing injury are questions of causation that fall to be determined on a serious injury application. It is always necessary for the decider of fact to be satisfied that the claimed serious injury is work related, even where this requires the question of causation to be determined.
218I accept that, on a serious injury application, the Court is not generally in a position to determine a dispute on the facts about what occurred that is said to give rise to the claimed injury. Mr Moran’s counsel submitted that, in serious injury applications involving bullying claims, for example, it is not appropriate for a court to determine whether the conduct alleged amounted to bullying. I accept that submission. It would be necessary in that scenario, however, for the Court to be satisfied that the injury claimed was caused or aggravated by the work and not, for example, a pre-existing or unrelated psychiatric condition.
219In this case, I had two very different versions of what happened during the incident. The VWA said that, if I were satisfied that the incident occurred in the way Ms Adlam described, I could not be confident that the shoulder or neck injuries were caused by the incident. I do not accept that submission. It is not clear from the medical reports exactly what the various experts knew or understood about how the incident had unfolded. Many have recorded the incident in only general terms, or have not set out their understanding of how the incident occurred. I could not conclude that those opinions are invalid because of an incorrect understanding about the mechanism of injury. To reach such a conclusion, it would be necessary to put to a medical expert the competing versions and ask whether the injuries claimed are consistent with one or both of those versions.
220I did not hear any evidence from other relevant witnesses: Ms Adlam’s son, his unnamed friend, and Mr Wayne Patterson. Accordingly, I am not in a position to resolve the question of how the incident unfolded, nor is it necessary to do so. What I must determine is whether Mr Moran suffered a left shoulder, right shoulder, neck or psychiatric injury, at work, which meets the test, regardless of whether the incident occurred as he described or not.
221What happened during the incident and the mechanism of injury are beyond the scope of the enquiry I must undertake.
Does Mr Moran have a left shoulder, right shoulder or neck injury that meets the test?
222I have concluded that Mr Moran is not a reliable witness. I do not accept his evidence about the timing and location of the onset of his pain.
223As a result, the medical opinions, which are based on this history, are unreliable. I am not satisfied that Mr Moran sustained a work injury, and therefore I do not need to go on to consider the consequences he claims. In these circumstances, Sepe “admission by conduct” does not assist him.
Does Mr Moran have a psychiatric injury attributable to his work?
224I turn now to consider Mr Moran’s psychiatric impairment.
225Associate Professor Varma diagnosed an Adjustment Disorder with Mixed Anxiety and Depression, secondary to a work-related physical injury. He considered Mr Moran could not return to even modified pre-injury duties and hours due to depression and anxiety and also due to pain. His prognosis was guarded and dependent on pain. Associate Professor Varma’s opinion is that Mr Moran’s psychiatric condition is related to his pain. Logically, if his pain is not caused by the incident, the psychiatric consequences of his pain condition cannot be attributed to his work.
226Dr Damodaran diagnosed a Major Depressive Disorder along with Generalised Anxiety Disorder with features of traumatisation. He said Mr Moran could be considered as having a concurrent diagnosis of other specified trauma and stress-related disorder (subthreshold Post-Traumatic Stress Disorder). Dr Damodaran found Mr Moran’s depression was associated with his pain disorder, and his major depression and generalised anxiety precluded him from focusing and concentrating on employment. He noted that pain dominated Mr Moran’s thinking pattern, consuming his sense of self and affecting his confidence.
227Dr Damodaran opined that half of Mr Moran’s psychiatric impairment was related to the traumatic nature of the incident, flashbacks and intrusive memories, and half was secondary to pain, limitation and the loss of employment and its impact on his functional status.
228As I am not satisfied that the work incident was the cause of his pain, that part of his psychiatric injury which is secondary to his pain, is not caused by his work.
229To the extent that his psychiatric injury is caused by the incident itself, manifesting as flashbacks, and a “subthreshold” Post-Traumatic Stress Disorder, as opined by Dr Damodaran, Mr Moran has not satisfied me that the consequences of this injury meet the test.
230Mr Moran has seen a psychologist intermittently. He has not seen a psychiatrist, and has not been recommended or referred for psychiatric assessment. This suggests that his psychiatric presentation has not warranted such a referral. He has not taken, nor has it been suggested he should take, any medication for his psychiatric condition.
231Although he said he has flashbacks to the incident, his evidence about his psychiatric condition was dominated by his feelings of depression and anxiety, secondary to his pain. I am satisfied that the most significant consequence of his psychiatric condition is depression and anxiety, rather than features of traumatisation, which were not identified by Associate Professor Varma.
232The non-employment related impact of that part of his psychiatric condition that relate to the incident itself appear to be confined to occasional “flashbacks” and rumination. There has been no attempt to disentangle the consequences caused by his pain and his consequence depression and anxiety, from the consequences caused by “flashbacks” and rumination.
233I am not satisfied that the traumatic injury, identified by Dr Damodaran, is the primary cause of his incapacity for employment. The experts are generally in agreement that his psychiatric condition is a significant cause of his incapacity to work, but have not identified the psychiatric component related to the trauma itself as the primary reason for his incapacity for employment.
234If I am wrong in this conclusion, I note that neither Dr Damodaran or Associate Professor Varma assessed his incapacity for employment, resulting from his psychiatric condition, as permanent or likely to continue indefinitely. Dr Damodaran said there is a likelihood he may regain capacity for suitable employment, although not for at least twelve to eighteen months. Associate Professor Varma said he did not believe Mr Moran’s condition to be indefinite, but it would take some time to improve and would mostly be dependent on improvement in his pain.
235Accordingly, I am not satisfied that Mr Moran has established that he has a psychiatric condition, caused by the employment, which is permanent.
236Given my findings above, Mr Moran has not established he has injuries from his work, the consequences of which meet the test for a serious injury.
237Accordingly, his application is dismissed. I will hear from the parties on the question of costs.
Orders
238The plaintiff’s application is dismissed.
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