Shah v Victorian WorkCover Authority

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2021 0092

MUHAMMAD IQBAL SHAH	Applicant
v
VICTORIAN WORKCOVER AUTHORITY	Respondent

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JUDGES:	BEACH, NIALL and KENNEDY JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	4 May 2022
DATE OF JUDGMENT:	24 May 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 95
JUDGMENT APPEALED FROM:	2022 VCC 973 (Judge Misso)

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NEGLIGENCE – Workplace injury – Serious injury application – Loss of earning capacity – Pain and suffering – Whether the applicant had suffered discrete injuries or whether injuries had occurred over time – Whether injuries sustained to neck and back could be aggregated –Whether judge gave adequate reasons – Whether judge had regard to whole of the evidence – Leave to appeal refused.

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Counsel
Applicant:		In person
Respondent:		Mr R Kumar
Solicitors
Applicant:
Respondent:	Wisewould Mahony

BEACH JA
NIALL JA
KENNEDY JA:

The applicant commenced a proceeding by originating motion in the County Court seeking leave pursuant to s 134AB of the Accident Compensation Act 1985 (‘the Act’) to bring an action in damages in respect of an injury to his cervical spine and lower back, which he alleged arose from his employment. In order to obtain leave, he needed to establish that he had suffered a serious injury within the meaning of s 134AB(37) of the Act.
A worker who suffers injury arising out of or in the course of, or due to the nature of, employment on or after 20 October 1999 but before 1 July 2014, and who wishes to recover damages at common law in relation to that injury, must comply with the serious injury provisions in s 134AB of the Act.
In a proposed statement of claim[1] which the applicant would seek to file, if granted leave, the applicant alleged that he was employed by Tasty Trucks Pty Ltd (‘the employer’) as a van loader and that throughout his employment, from 18 August 2010 to 18 December 2012, he performed manual work that placed significant strain on his back and neck. He alleged that by reason of the performance of the work, ‘including on 23 September 2011 when the plaintiff was throwing away rubbish, and on 14 December 2011 when the plaintiff was lifting a heavy milk crate, the plaintiff suffered injury, loss and damage.’ The proposed action was brought in negligence and for breach of duties under the Occupational Health and Safety Regulations 2007.

The statutory setting

In order to place the judge’s reasons, and the issues in this application, in context, it is necessary to give an overview of the statutory scheme and what the applicant needed to establish in order to succeed in his application. The applicant sought leave to commence a proceeding claiming damages for ‘pain and suffering’ and ‘pecuniary loss damages’.
The applicant relied upon paragraph (a) of the definition of ‘serious injury’ in s 134AB(37) of the Act (‘permanent serious impairment or loss of a body function’). For that purpose, the term ‘serious’ was to be satisfied by reference to the consequences to the worker of any impairment or loss of a body function, as the case may be, with respect to pain and suffering; or loss of earning capacity when judged by comparison with other cases in the range of possible impairments or losses of a body function.[2]
Section 134AB(38) also provides that an impairment or loss of a body function or a disfigurement shall not be held to be serious unless the pain and suffering consequence or the loss of earning capacity consequence is, when judged by comparison with other cases in the range of possible impairments or losses of a body function, or disfigurements, as the case may be, fairly described as being more than significant or marked, and as being at least very considerable.[3]
The body function, in the sense of a physical act or operation,[4] relied upon by the applicant was the function of his spine.
As is the case for non-economic loss, in order for there to be a serious injury in relation to loss of earning capacity, it is necessary for the putative plaintiff to establish that the loss of earning capacity consequence is fairly described as being more than significant or marked, and as being at least very considerable. In addition to that narrative test, s 134AB(38)(e) of the Act requires the plaintiff to show a loss of earning capacity of 40 percent or more.
There are two aspects of the definition of serious injury that assume relevance to the application. First, it is necessary to identify and assess the impact on a particular body function. Second, the impact must arise from a single incident or process in respect of which the proposed claim is to be brought.
The concept of ‘body function’ in the definition of serious injury requires a focus on a particular body function. When there have been injuries to two different body parts, difficult issues may arise as to whether they have resulted in an impact on a single body function. Those difficulties do not arise in this case. It has been established by authority that the human spine is involved with a particular body function, so injuries to different parts of the spine may result in a loss of, or impairment to, a single body function.[5] It follows that in assessing the extent of any loss of body function arising from an injury to the spine, it is generally permissible to combine injuries to different parts of the spine. That general proposition is subject to the second point of present significance.
It is a corollary of the requirement that a plaintiff must have a serious injury that it is not permissible to aggregate two distinct injuries in order to meet the statutory hurdle. That is, it is impermissible to combine the level of impairment arising from one injury with the impairment arising from a different injury in order to meet the statutory threshold unless the two injuries arise in the same compensable circumstances.[6]
Where there are two injuries that impact the same body function but which do not arise in the same compensable circumstances, it is necessary – so far as the evidence permits – to disaggregate the consequences in order to assess whether the relevant injury is itself a serious injury.[7] That process will usually require the court to make findings about all of the pain and suffering consequences which are operative at the date of the trial, as ‘an essential pre-condition’ to working out which of the pain and suffering consequences are attributable to which injury.[8]

The judge’s reasons

In broad terms, the applicant claimed to have sustained a loss of body function that exceeded the statutory threshold consequent upon an injury to his neck and lower back which arose in the course of his employment. On the other hand, the respondent asserted that, in fact, the claims made by the applicant and the evidence advanced in support of them, were based on two discrete injuries having occurred: one to the neck and a later one to the lower back, and that the proceeding had to be decided on that basis. The significance of the difference was that in the case of the latter, but not the former, the consequences of the injuries could not be combined or aggregated for the purpose of determining whether the applicant met the serious injury test.
It was in this context that the judge distilled the claim to four issues:
(a)whether the applicant had suffered a spinal injury affecting both his neck (cervical spine) and lower back (lumbar spine) arising from the nature of his employment over time or whether he suffered separate injuries to his neck and lower back in discrete incidents?
(b)whether the applicant suffered a work injury to his neck?
(c)what was the level of pain and suffering and loss of earning capacity as a result of the injury or injuries to the applicant’s spine?
(d)did the applicant have a residual capacity for work in suitable employment?[9]

Discrete injury?

The judge did not accept that the applicant suffered injury to his spine due to the nature of his work. Rather, the judge concluded that to the extent there was injury to the applicant’s spine, it resulted from two discrete injuries. In that respect, the judge noted that in the applicant’s first affidavit he deposed to a particular incident on 23 September 2011 when he slipped at work, striking his head on the concrete floor, and he subsequently felt pain in his neck. He also deposed to a second specific incident some weeks later on 14 December 2011, when he lifted a heavy crate and felt ‘sharp back pain.’ The judge noted that the applicant had said in his first affidavit that the work he was required to perform was heavy and repetitive, although he did not tie his neck and back injuries to repetitive work over time,[10] but rather to the two specific incidents on 23 September and 14 December 2011. The judge said that the applicant’s description of the two incidents left no room for doubt.
The judge said he was fortified in that conclusion by the applicant’s Injury Claim Form dated 23 January 2012, in which the applicant referred to a lower back injury caused by lifting a milk crate and a second Injury Claim Form dated 13 December 2013 (some two years after the second incident), in which he referred to a neck injury from slipping and falling on his head.[11]

The neck injury

The judge did not accept that the applicant’s neck injury was caused as a result of his fall in September 2011. He reached that conclusion having regard to the medical records of the applicant’s treating general practitioners and specialists, and reports of medico-legal specialists. He noted:
(a)the applicant saw his general practitioner (‘GP’), Dr Hamid Assaf, at the Centreway Medical Centre on 23 September and 27 September 2011. Dr Assaf’s notes recorded that the applicant complained of ‘some pain on back of his head’ and ‘headaches’;
(b)he saw a second GP, Dr Robert Lee, at the same clinic on 4 October 2011. The notes recorded that the applicant reported falling backwards and hitting his head on concrete. The notes also reported that the applicant had ‘pain in back of head and neck.’ Dr Lee’s notes recorded tenderness of the neck but full range of movement;
(c)the applicant again saw Dr Lee on 25 November 2013. The notes recorded a C5- 6 disc protrusion contracting the anterior aspect of the spinal cord. The earlier notes of the consultation of 23 September 2011 are repeated in the notes of the 23 November 2013 consultation;
(d)records of consultations with Dr Alex Stockman, rheumatologist, have entries for 15 March, 5 April and 21 July 2012, which refer to a history of lower back pain. There was no mention of neck pain;
(e)the report of Dr David Barton, consultant occupational physician, dated 16 July 2012, made no reference to neck injury; and
(f)in November 2012, Dr Lee referred the applicant to Professor Tissa Wijeratne, neurologist, for treatment of the applicant’s lower back injury. On 13 March 2015, Dr Lee referred the applicant to Professor Wijeratne for treatment of his neck injury. Professor Wijeratne first saw the applicant in November 2012. The applicant complained of symptoms of a neck injury when reviewed on 12 October 2013. In a report dated 23 October 2015,[12] Professor Wijeratne recorded the applicant’s complaint of severe pain in his neck with radiation of pain into his left arm with symptoms ‘since September 2013’, which he related to a fall that he had at work. Professor Wijeratne considered that the applicant’s presentation was consistent with cervical radiculopathy, ‘most likely to be secondary to the fall that he had at work in mid-September.’ A radiological report of 29 October 2013 noted that the reason for the scan was a ‘Fall at work …’. The radiologist reported that the applicant had evidence of multi-level central canal stenosis which was severe at C6-7, moderate at C5-6, and mild at C4-5, and was predominantly due to large broad-based disc bulges at those levels.
The judge also referred to a number of medico-legal reports. He noted that Mr John O’Brien, orthopaedic surgeon, said he ‘could not positively confirm that the current clinical condition directly relates to the reported September 2011 fall.’ Mr Thomas Kossmann, orthopaedic surgeon, stated that ‘there is … no clear relationship between the incident in which he hit his head at work [on] 23 September 2011 and the onset of his cervical spine symptoms in October 2013.’ Mr Ian Jones, orthopaedic surgeon, concluded that the neck condition appeared to be unrelated to the applicant’s employment. Associate Professor Anthony Buzzard, general surgeon, examined the applicant on 28 January 2014. He considered that the applicant suffered an aggravation of pre-existing degenerative disease in his neck and lower back. Associate Professor Buzzard did not address causation.
On the other hand, the judge noted that Dr Philip Mutton, consultant occupational physician, had said ‘[t]here was opportunity for aggravation, acceleration or deterioration of that pre-existing condition of the cervical spine.’ Dr Brian Zakhem, interventional cardiologist, to whom the applicant was referred by Dr Lee on 27 June 2013, stated that the applicant’s chronic history of left-sided shoulder and arm pain with numbness was most likely related to a neck injury.
Based on his analysis of these medical records, the judge said that he was not satisfied that the applicant’s neck injury was caused by the slip and fall in September 2011.[13] In that regard, he accepted that the applicant had slipped and had sought initial treatment for neck pain, but noted he did not seek medical treatment between the initial aftermath of the fall and 4 October 2013. The records of the initial consultations in September 2011 were unclear as to whether the presenting symptoms were a consequence of a head injury or an injury to the neck. Dr Lee’s clinical notes of 4 October 2013 noted left sided neck pain for ‘on[e] year’ which would have placed the injury in 2012. The note of 25 November 2013 referred back to the earlier consultation of 23 September 2011, suggesting a connection between neck symptoms and the fall, but the judge said that the note did not make that link expressly. The judge observed that those symptoms that were considered as possibly coronary in nature, may in fact have been related to a neck injury, but he noted that those symptoms were not recorded until around the time of the referral in June 2013. The judge recorded that Mr O’Brien, Mr Kossmann and Mr Jones were unconvinced of the connection, but Dr Mutton provided an equivocal opinion to the contrary.[14]
After referring to the evidence of Professor Wijeratne and other doctors, the judge continued:
I will now attempt to draw the many threads of the medical evidence together. My overall impression is that the plaintiff has the appearances of degenerative changes in his neck and lower back, but the medical assessments do not point to there being any material structural or neurological abnormality. It would appear that the plaintiff has suffered injury on top of those degenerative changes. I must say that the presentation of the medical evidence is very unsatisfactory. It has placed me in the unenviable position of trying to gain an impression from medical evidence where there are medical practitioners from whom medical reports should have been obtained who could have thrown light on what is needed in a case like this – a clear opinion on causation, treatment history, a diagnosis and a prognosis.[15]

The level of impairment and its consequences

The second and third issues identified by the judge were the identification of pain and suffering and the extent of any loss of earning capacity flowing from the impairment of the applicant’s neck and lower back; and whether the applicant had the residual capacity for suitable employment identified by Dr Mutton in a report dated 21 June 2021.
In respect of these issues, the judge first listed the consequences arising from both the applicant’s neck and lower back injuries as follows:
The neck
• A consistent aching pain that is sometimes sharp with most of the pain on the left side of the neck radiating down into his left arm.
• Performing a lot of neck movements makes the pain worse, as does moving his neck suddenly or having it fixed in one position for a long period of time.
• Neck soreness often wakes him at night, but not as often as the lower back pain.
• He suffers very bad headaches which appear to start in his neck and then go over the whole of his head.
The lower back
• A consistent aching pain that is sometimes sharp at times, with pain radiating into the left leg accompanied by numbness. The leg symptoms feel like a vibration and there is accompanying tingling.
• He suffers significant flareups which can come on if he does too much. He then needs to take medication and lie down.
• Movements like bending, lifting or long periods of standing and sitting will aggravate his lower back pain.
•         Walking on uneven surfaces aggravates the pain.
•         Climbing stairs causes pain.
• Driving or sitting in a passenger seat makes the pain worse and causes a stabbing pain into his right foot with an accompanying burning sensation at the back of his left foot and heel.
•         Driving is limited to driving locally and not every day.
• His lower back pain causes him to wake up many times at night. In the mornings he does not feel rested and can be tired, sore and drowsy.
Common consequences
•         Interference with sleep.
•         Interference with being able to attend cricket matches.
•         Interference with going to the movies.
•         Interference with driving.
•         An inability to work.
•         An inability to retrain himself, for example by undertaking a law degree.
• An inability to study because sitting is made impossible due to back pain which also interferes with concentration, and craning over books produces neck pain and headaches.
•         Use of Lyrica, Panadol Osteo and Nurofen for pain relief.[16]
The judge noted that under cross-examination, the applicant accepted that there were a number of consequences that he attributed to the aggregate effect of his neck injury and lower back injury, namely:
• He uses Lyrica and Nurofen for pain relief.
• Interference with sleep, although the lower back injury interferes more than the neck injury.
• He will often have to lie down because of the pain in his neck, and also needs to rest and apply heat packs because of pain in his lower back.
• Interference with driving.
• It is both his neck and his lower back which prevent him from working in his pre-injury employment and in alternative employment.
• Studying law was made difficult because of the pain in both his neck and his lower back.
• Walking causes him pain in his back and also in his neck after some time.[17]
The judge then turned to the level of residual capacity retained by the applicant. He addressed that question by reference to the competing opinions relied on by the parties: the respondent relied on the reports of Dr Mutton and the applicant on those of Dr Joseph Slesenger, specialist occupational physician. It is convenient to refer to that evidence now.
The applicant relied on a report from Dr Slesenger dated 15 July 2019, which expressed the opinion that the applicant could not return to his pre-injury role due to the manual handling and postural requirements. He said that alternative employment options were more difficult to assess but concluded, ‘taking into consideration [the applicant’s] past employment history, his qualifications, his computer skills and his literacy skills, I am of the opinion that he is unlikely to be able to return to work in a role for which he has suitable training and experience on a consistent and reliable basis.’

He went on to address some specific roles identified in a vocational assessment report in the following way:
• Warehouse Transport Clerk in Somerton: I am of the opinion that he could meet the manual handling and postural demands associated with this role, although should be allowed to sit and stand at will and should be provided with a sit-stand desk. However, I am also of the opinion that he is unlikely to be able to attend work performing these duties on a consistent and reliable basis.
• Dispatch Clerk in Campbellfield: I am of the opinion that he could not perform this role due to the prolonged sitting requirements (although I note recommendations for a sit-stand desk to be installed). Should the sit-stand desk be provided, I am of the opinion that he could meet the physical demands associated with this role, but is likely to have difficulty attending work on a consistent and reliable basis.
• Dispatch Clerk in Derrimut: I am of the opinion that he is likely to have some difficulty performing these duties outlined in the vocational assessment report due to the prolonged sitting requirements. In addition, I also note that he is likely to have significant difficulty attending work on a consistent and reliable basis.
Dr Mutton, who was retained by the respondent, provided reports dated 9 January 2019, 27 March 2019, 3 July 2019, 2 June 2020, 11 December 2020 and 21 June 2021.
In his penultimate report, Dr Mutton was asked to consider certain questions regarding the applicant’s capacity with respect to the lower back injury alone. Dr Mutton noted the applicant’s symptoms in relation to his lower back included: right-sided lower back pain extending to the right buttock; radiation in the left back through to the thigh and into the lateral toes which are numb; and interrupted sleep due to pain. The applicant reported the pain to be ‘quite constant’ and worse with activities such as walking and driving. On examination, Dr Mutton noted:
[N]o tenderness across the lower back and again he confirmed the pain was deep inside. He could forward flex and laterally flex to mid-thigh. He had good extension. He could stand on tiptoes. Straight leg raising was 80 degrees on the right seated and 70 degrees on the left seated. There was altered sensation in the left lateral foot and to a lesser extent the right lateral foot. There was normal sensation over the left thigh. There was good range of movement in the neck with perhaps 50% reduction in rotation. There was full function in both shoulders.
Dr Mutton concluded that the applicant could do a range of clerical and administration work, including computer based work. He adopted his earlier opinions, including that given in July 2019, that the applicant had the capacity for light to moderate work such as computer, administration and IT roles. He said that, subject to certain restrictions, the applicant could perform the role of dispatch clerk or warehouse clerk. This opinion confirmed that detailed in an earlier report of 2 June 2020, in which Dr Mutton observed that the applicant had significant transferable skills, with a demonstrable skill base for general office related activities, including keyboard activities and significant executive functions in terms research, analysis and report writing.
In his final report of 21 June 2021, Dr Mutton was asked to consider the impact of the applicant’s neck condition. On that topic, Dr Mutton noted that imaging revealed significant degenerative change in the cervical spine but little in the way of abnormal clinical findings beyond some stiffness and a reduced range of movement. Having regard to the applicant’s neck condition, Dr Mutton considered that employment as a warehouse clerk or dispatch clerk was ‘quite suitable’ for the applicant.
Although the judge noted that there was not a significant difference between the opinions, the judge said he preferred the opinion of Dr Mutton because it was a more recent report; and was based upon a full understanding of the applicant’s injuries, vocational history, and an analysis of the types of employment that were suitable.
The judge then set out his conclusions. Given his finding that the neck injury did not arise from employment, an assessment of the consequences of the neck injury was not strictly required, however, the judge assessed the impact of both the neck and lower back injuries. Conformably with his view that the two injuries could not be combined, he did not consider what the level of impairment was on an aggregated basis.
The judge said that the level of pain and suffering arising from the neck injury could not be described fairly as being ‘more than significant or marked’, or ‘at least very considerable’,[18] when compared with other cases in the range of possible impairments or losses of a body function. He reached the same conclusion in relation to the back injury.
Finally, in relation to the applicant’s incapacity for work, the judge said:
I have taken the same approach with respect to the plaintiff’s submission that he is effectively totally incapacitated for work. I prefer the evidence of Dr Mutton that if the neck injury is excluded, as Dr Mutton was asked to do, then his revised opinion is that the plaintiff has both the ability and the capacity to return to work based upon the impairment of the function of his lower back. There is, then, no persuasive evidence which I am prepared to accept that if the neck is included as being caused by the slip and fall, that it will interfere with the plaintiff’s ability and capacity to return to work in the forms of employment referred to by Dr Mutton. I think that when those impairment consequences are judged individually and in comparison with other cases in the range of possible impairments or losses of a body function, as the case may be, they cannot fairly be described as being ‘more than significant or marked’, and as being ‘at least very considerable’.[19]

Proposed grounds of appeal

There are three proposed grounds of appeal:
i.The learned trial Judge erred in failing to consider and examine whole of the evidence to determine whether applicant suffered spinal injury due the manual nature of his work which placed significant strain on his neck and back or whether he suffered injury in two separate incidents.
ii[W]hether the trial judge gave sufficient or adequate reasons for his decision that pain and suffering consequences produced by the claimed impairment did not meet the statutory test of ‘more than significant or marked’, and as being ‘at least very considerable’ and whether the Learned trial Judge consider whole of the evidence when assessing applicant disabling effects from his claimed injury.
iiiThe judge erred in failing to examine and consider whole of the evidence to determine whether or not the applicant had permanent loss of earning capacity of 40 per cent or more as required by s 134AB(38)(e) of the Accident Compensation Act 1985.

Ground 1

The applicant submits that the judge had, from the outset of the trial, considered that there had been two discrete injuries and that this approach prevented the judge from considering the whole of the evidence. He submits that the judge failed to give proper attention to his third affidavit; the nature of the duties he was required to perform; and paragraphs 6 and 7 of his proposed statement of claim. He says that his third affidavit showed that he was complaining of neck related pain in the period between 2011 and 2013 and that Mr O’Brien, Mr Kossmann and Mr Jones did not have all of the relevant material that emerged from his third affidavit. He says that the judge erred in discounting Associate Professor Buzzard’s opinion on the erroneous basis that he was not asked about causation, whereas in fact Associate Professor Buzzard was asked two questions about that topic.
Finally, he says that the judge erred in rejecting Professor Wijeratne’s opinion that the applicant suffered from both cervical and lumbar radiculopathy. In respect of this matter, he submits that Professor Wijeratne treated him for seven years; and had complete knowledge of his symptoms, complaints, pre-injury duties, and test results from three nerve conduction studies, electromyography (‘EMG’) test reports and MRI reports. He says that Professor Wijeratne’s diagnosis of radiculopathy was further confirmed by Dr Hazem Akil, neurosurgeon, in his letter to Dr Lee dated 12 July 2019 and by another neurologist, Dr Sujith Ayyappan, who was said to have confirmed the diagnosis of radiculopathy after conducting two nerve conduction studies and two EMG studies in 2015 and 2017.
In his oral submissions, the applicant said that the evidence established that his condition was caused by, or made worse by, the onerous nature of his duties and the failure of the employer to abide by work restrictions that Dr Lee had imposed. He referred specifically to:
(a)a letter dated 3 August 2012 from a treating physiotherapist, Ms Amy Zhe Liu, in which she said the applicant’s ‘back is frequently aggravated by his shifts he should not continue to do duties outside his ability’;
(b)a certificate of capacity issued by Dr Lee on 12 September 2012 in which Dr Lee said the applicant was fit for work three hours per day, five days per week with no lifting of weights greater than three kilograms;
(c)a report of physiotherapist, Mr Neil Sherburn, dated 5 November 2014, which recorded that the applicant had returned to modified duties but often had to undertake his pre-injury duties; and
(d)the report of Dr Slesenger dated 15 July 2019, which described the applicant’s duties and said that the applicant was injured ‘during the course of his employment’. That report described the two incidents on 23 September and 14 December 2011 and said that on return to work following the December 2011 incident, ‘restrictions were not adhered to and [the applicant] was often required to perform duties outside his capacity limits’.
The applicant also complains that the judge ignored the fact that the applicant’s claim to his lower back had been accepted by the respondent.
In order to address this ground, it is necessary to refer to some of the matters on which the applicant relies. First, he relies on the following paragraphs of his third affidavit:
8. Thereafter I reported such attitude of supervisor to my GP. I also reported it to the then case manager responsible for managing my claim.
9. I saw my GP again on March 30 2012 in relation to my chest pain and pain down my left shoulder and left arm and my GP recorded vague atypical chest pain? Reflux. I returned to my GP Clinic on 20th April 2012 again complaining about chest pain and pain down my left shoulder when an ECG was conducted and my GP recorded ECG under actions column next to pathology requested: as evident from Exhibit H-3 Clinical Note dated 20 April 2012 on Plaintiff's Court Book.
10. Despite normal ECG result that pain down my left shoulder continued along with chest tightness and I kept on complaining about those symptoms. I also complained about slight hearing loss on my left ear and felt tingling and pain on the left cheek on a number of occasions and the same history about those symptoms mentioned above I also informed to the defendant general surgeon A/Prof A Buzzard who recorded left ear hearing trouble in his report dated 28 January 2014 which is included in the Defendant's Court [B]ook.
…
16.… I say that my treating neurologist Dr Tissa Wijeratne mentioned exacerbation of pain and worsening of pain due to bending and reach out in his letter dated 03 November 2012 …
…
18. I further say that on 7th March 2013 I again saw my GP in relation to my chest pain, arm pain and on his request another ECG was conducted and the result was normal, A referral letter of which was issued to Cardiologist. Clinical note shows that my doctor recorded ‘ECG Left AXIS deviation’ but on the referral dated 7-3-2013 to interventional Cardiologist my GP recorded ‘Thank you for seeing Plaintiff, age 44 Years, for an opinion and management. She (sic) has had some vague chest pain with pain down his left shoulder. He has a strong family history of IHD. He also has a history of a back injury and he might not tolerate a treadmill.’ I have copy of that referral which is part of my Clinic Notes history and can produce the said referral letter.
Second, the applicant relies on the following description of his pre-injury duties provided by an occupational rehabilitation consultant:
Pre-injury duties involve the following tasks:
-     hot food loaded into trucks
-     grey tubs wheeled to the van and then products loaded into various compartments
-     scooping buckets of ice – involves a lot of bending and stooping
-     shelves in trucks are loaded with light weight products (e.g. cakes & chocolates)
-     loading of drinks and milk from crates
-     loading of pies, sausage rolls and other hot food
-     heating the gas ovens.
Physical & Environmental Requirements of Pre-Injury Duties:
-     Lifting up to 18-20 kg of milk in crates
-     Forward bending
-     Prolonged standing and walking
-     Cool room duties
-     Handling of hot food products
Third, he points to the reports, records and correspondence of Professor Wijeratne, Associate Professor Buzzard and Dr Akil. It is not necessary, for the moment, to rehearse that evidence.

Decision

Ground 1 concerns the nature of the injury or injuries sustained by the applicant during his employment. The judge accepted that the work performed by the applicant was as alleged by him. There is no basis to find that the judge ignored, misunderstood or understated the nature of the applicant’s duties.
The judge accepted that the applicant sustained an injury to his lower back from the specific incident in December 2011. The judge accepted that there was an incident in September 2011 but he did not accept that this incident was the cause of any current injury to his neck. The judge did not accept that the applicant suffered an injury to either his lower back or neck due to the nature of his work over time.
Once the September 2011 incident was ruled out as a cause of any subsisting neck injury, there was no other viable hypothesis consistent with the evidence that established that the applicant’s employment had caused his neck injury. That is, there was no evidentiary platform to conclude that the neck injury arose out of the repetitive or heavy nature of the work rather than, for example, degenerative changes to the upper spine.
Once the neck injury was seen as separate and distinct from the lower back injury, which was accepted as being caused by the lifting of a heavy crate in December 2011, it was impermissible to aggregate the two injuries for the purpose of assessing the current level of impairment.[20]
As the following analysis shows, those conclusions were arrived at after a close consideration of the evidence and were well open to the judge.
Critically, the judge concluded that to the extent that the applicant had any injury to his neck, he had not shown that it was related to his employment. The judge noted that the applicant’s initial evidence in his first affidavit was that he had suffered a specific injury as a result of a slip and fall in September 2011. The judge appears to have accepted that this event occurred and that it may have involved some pain to the applicant’s neck.
The judge however, was not persuaded that this incident had any ongoing consequences for the applicant’s capacity. That conclusion followed from the fact that the applicant had not complained about neck pain between December 2011 and October 2013, despite attending many medical practitioners who had each obtained a history from him. In his evidence, the applicant sought to explain this stark gap in the evidence by saying that there were other symptoms that were recorded, including chest pain, left arm numbness, and headaches, which he said in hindsight were properly attributable to the neck injury but which at the time were assumed to have been related to a cardiac condition.
The judge rejected that explanation and did not accept that there was a connection between the records of the neck injury in 2013 and the slip and fall in 2011. In that respect, he noted that:
(a)there was no record of the applicant seeking any medical treatment for the neck injury until 4 October 2013;
(b)there was an ambiguity in Dr Lee’s records of 2013, in that the judge thought it was unclear whether the reference by Dr Lee to pain in the applicant’s neck was a reference to a symptom of a head injury or a symptom of an actual neck injury;
(c)the records of October 2013 referred to left sided neck pain ‘for on[e] year’, that is from October 2012 and not from the date of the incident in September 2011;
(d)the record of November 2013 was ambiguous in that it was not clear to the judge whether the causal connection had been made by the applicant or by Dr Lee. Thus, the judge was not persuaded to accept the record as an indication that Dr Lee had diagnostically linked the claimed symptoms to the particular incident; and
(e)the first reference to symptoms mimicking neck pain was in 2013 when Dr Lee made the referral to a cardiologist.[21]
Even if some of the applicant’s symptoms were wrongly thought to be the result of a coronary condition, the material did not provide a sufficient foundation to establish the cause of these symptoms. In May 2014, Dr Zakhem concluded that the applicant’s chest pain, shoulder pain and arm pain were most likely related to his neck, however, that evidence fell far short of linking any ongoing neck symptoms to the applicant’s duties generally.
In part, the judge’s rejection of a causal connection between a neck injury and the claimed incident in September 2011 depended on his assessment of the applicant’s evidence. To that extent, he had an advantage over this Court which means that this Court must exercise some restraint in overturning that finding.[22] Further, the medical evidence largely consisted of a mass of medical records unmediated by the provision of a written opinion. That made the task for the judge much harder than it needed to be, but it also now makes it harder for the applicant to demonstrate error on the part of the judge. That is because the fact that the applicant can point to occasional references in the plethora of medical records to entries that might assist his argument has to be considered in light of the judge’s overall assessment of the medical records and reports as well as the applicant’s own evidence.
Given the way the claim was made, including the unmistakable link between the applicant’s injuries and the two claimed incidents, and the medical evidence which overwhelmingly failed to show a connection between any neck injury and employment, there was no error in the judge’s conclusions. The particular documents relied on by the applicant in his oral submissions, namely the letter of Ms Liu of 3 August 2012, the certificate of capacity issued on 12 September 2012, and the report of Mr Sherburn of 5 November 2014, are all concerned with the applicant’s lower back injury. The report of Dr Slesenger dated 15 July 2019 does address the injury to the cervical spine but only in the context of the September 2011 incident.
In the course of his oral submissions, counsel for the respondent very fairly drew attention to a report of Ms Liu dated 1 September 2014, in which Ms Liu said that the applicant had ‘endured lower back injury due to the repetitive lifting, bending nature that is required at work.’ It must be said that in relation to the cause of the lower back injury, this opinion is somewhat of an outlier given the overwhelming opinion that the lower back injury was caused by a discrete incident of lifting a heavy crate in December 2011. That said, it provides no support for the contention that the applicant has suffered injury to his neck as a result of the lifting and bending.

Further, the paragraphs of the applicant’s third affidavit, which are set out above, do not assist in showing any error in the conclusions reached by the judge. They do not show a link between any subsisting neck injury and the incident in September 2011. Still less do they show that his overall duties contributed to such an injury.
It follows that any incapacity or impairment flowing from an injury to the applicant’s neck was irrelevant, but if it was relevant, it could not be aggregated or combined with the effects of the lower back injury.
In summary, the judge was not satisfied that the neck injury was caused by or arose from employment. And, in any event, for the reasons given by the judge, the two injuries did not arise from the same compensable circumstances and therefore it was not permissible to combine the impacts of the two injuries in order to satisfy the serious injury test. No error has been established in respect of either basis.
Ground 1 must be rejected.

Ground 2

Ground 2 can be disposed of briefly. The principles are not in doubt. The judge was required to give adequate reasons for his decision. In Woolworths Ltd v Warfe,[23] Kaye AJA said that the reasons must disclose the ‘path’ or ‘route’ by which the trial judge reached the ultimate conclusion in the judgment.[24] There is no single paradigm in which adequate reasons may be expressed and the content of the obligation will be informed by the nature of the proceeding, the manner in which the evidence is put before the court, and the issues in dispute.[25] In the context of serious injury applications, there are two aspects that deserve mention. First, the nature of the task is evaluative and ‘[l]ike an assessment of non-pecuniary loss in a personal injury case, it is not a value judgment which needs now to be attended by statements of principle, nor does it readily admit of explicit reasoning.’[26] Second, there is often little viva voce evidence and the judge hearing such applications is often left with a vast array of apparently conflicting reports.
The former aspect may suggest that the ultimate conclusion may not admit of much explanation but the latter may mean that the judge has to identify the important evidence on which the application turns and what the judge makes of that evidence. The critical question remains: can the path of reasoning and the basis on which any significant disputed questions have been resolved be discerned from the reasons that have been provided?
In his ground of appeal, the applicant focuses on the judge’s conclusion that the pain and suffering consequences from his injury were not ‘more than significant or marked’. Notably, the applicant does not complain that the judge applied the wrong legal test or otherwise misunderstood the legal content of ‘serious injury’ in the Act. Rather, the first limb of the ground attacks the adequacy of the reasons and the second limb implicitly asserts a failure to have regard to all of the evidence.
The applicant submits that the evidence established that he had an organic injury, with neuropathic pain, sleep disturbance and affected driving ability. He also referred to the opinion of orthopaedic surgeon, Mr Michael Shannon, that he has ‘spinal dysmetria’.
As already observed, the judge’s conclusion that it was impermissible to aggregate or combine the consequences of the neck injury and the back injury meant that he had to assess the impact of each separately, bearing in mind that there was some degree of overlap. In one sense, and notwithstanding that the neck and lower back injuries both affected the same body function, the problem of ‘disentangling’[27] was less difficult in this case than in others. As the medical records attest, the applicant appears to have no difficulty in distinguishing between those symptoms affecting his lower back and those impacting his neck. The judge set out the claimed consequences arising from the neck injury and the lower back injury. It is plain from the judge’s reasons that he accepted that the applicant was suffering from an organic injury that was productive of various adverse consequences for the applicant. He took those matters into account.
Ultimately, as part of the evaluative exercise required by the legislation, the judge was required to assess the extent of pain and suffering against the statutory test. He identified, and accepted, the particular consequences suffered by the applicant but concluded that each fell short of being a serious injury. The reasoning is sufficiently exposed and the conclusion reached by the judge was well open to him. The reasons show that the judge had regard to all of the relevant evidence.
His Honour’s conclusion accords with our own in relation to the pain and suffering consequences of each injury.
Ground 2 must be rejected.

Ground 3

Ground 3 is concerned with the judge’s conclusions in relation to the applicant’s incapacity for work. The judge concluded, on the basis of Dr Mutton’s evidence, that the impairment consequences on the applicant’s earning capacity from each of the two injuries were not more than significant or marked, and as being at least very considerable.[28] That being so, the applicant failed to meet the first threshold erected by s 134AB of the Act. There was no occasion therefore for the judge to go on to consider the empirical 40 percent test in s 134AB(38)(e). For that reason ground 3 must fail.
In any event, it is plain from Dr Mutton’s evidence that he considered that the applicant was fit for suitable employment on a full time basis. Given that the applicant had deposed to usually working between 25 and 30 hours per week, it is clear that the applicant could not meet the 40 percent test in any event.
In his submissions, the applicant was driven to argue that, in reaching these conclusions, the judge had failed to have regard to all of the evidence. Given the reasons of the judge, which are sufficiently summarised above, this contention cannot be accepted. The judge surveyed an enormous amount of material, and despite his lamentation as to the way in which the medical evidence had been presented, clearly gave consideration to all of the evidence. It was well open to the judge to accept the evidence of Dr Mutton for the reasons that he gave: it was a more recent and detailed report, and Dr Mutton had examined the applicant on a number of occasions.
The evidence fell a long way short of establishing that each injury, considered separately as was required by the Act, produced consequences for the applicant’s earning capacity that met the statutory threshold.
The applicant has failed to establish any error in relation to the finding that he did not meet the serious injury test in respect of his alleged loss of earning capacity.
Ground 3 must be rejected.

Conclusion

As none of the proposed grounds of appeal have merit, we would refuse leave to appeal.

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[1]The proposed statement of claim was undated, though notes the year to be 2018. It was produced by the applicant’s then solicitor.

[2]The Act, s 134AB(38)(b).

[3]Ibid s 134AB(38)(c).

[4]Target Australia Pty Ltd v Moloney [2000] VSCA 124, [18] (Batt JA).

[5]Lu v Mediterranean Shoes Pty Ltd (2000) 1 VR 511; [2000] VSCA 65 (‘Lu’); Georgopoulos v Silaforts Painting Pty Ltd (2012) 37 VR 232; [2012] VSCA 179; Transport Accident Commission v Zepic [2013] VSCA 232; Victorian WorkCover Authority v Brassington [2021] VSCA 236.

[6]Lu (2000) 1 VR 511; [2000] VSCA 65.

[7]Peak Engineering Pty Ltd v McKenzie [2014] VSCA 67 (‘Peak Engineering’).

[8]Ibid [24] (Maxwell P).

[9]Shah v Victorian WorkCover Authority [2021] VCC 973, [6]–[9] (‘Reasons).

[10]Ibid [14].

[11]Ibid [18]–[19].

[12]We note that the date of this report is referred to in the Reasons as 23 February 2015.

[13]Reasons, [43].

[14]Ibid [50].

[15]Ibid [59].

[16]Ibid [62] (citation omitted).

[17]Ibid [63].

[18]Ibid [72].

[19]Ibid [74].

[20]Humphries v Poljak [1992] 2 VR 129, 138 (Crockett and Southwell JJ); Lu (2000) 1 VR 511, 520 [27] (Chernov JA); [2000] VSCA 65; Jovceva v Transport Accident Commission [2019] VSCA 105, [53] (Kaye, Niall and T Forrest JJA).

[21]Ibid [43]–[49].

[22]Robinson Helicopter Co Inc v McDermott [2016] HCA 22; Lee v Lee (2019) 266 CLR 129; [2019] HCA 28.

[23][2013] VSCA 22.

[24]Ibid [125].

[25]Barlow v Hollis [2000] VSCA 26, [14] (Chernov JA); Feldman v Tayar (2021) 64 VR 429, 447–8 [77] (McLeish, Sifris and Kennedy JJA); [2021] VSCA 185.

[26]Nichols v Robinson (2001) 33 MVR 83, 87 [14] (Winneke P); [2001] VSCA 11; Watapaldeniya v Transport Accident Commission [2022] VSCA 59, [56] (Beach, Kennedy JJA and O’Meara AJA).

[27]Peak Engineering [2014] VSCA 67, [25] (Maxwell P).

[28]Reasons, [72].

[2022] VSCA 95

24 May 2022