Toth v Victorian WorkCover Authority

[2025] VCC 361

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

 Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-24-03842

SERENA TOTH	Plaintiff
v
VICTORIAN WORKCOVER AUTHORITY	Defendant

---

JUDGE:	HIS HONOUR JUDGE PILLAY
WHERE HELD:	Melbourne
DATE OF HEARING:	18 March 2025
DATE OF JUDGMENT:	3 April 2025
CASE MAY BE CITED AS:	Toth v Victorian WorkCover Authority
MEDIUM NEUTRAL CITATION:	[2025] VCC 361

REASONS FOR JUDGMENT
---

Subject:ACCIDENT COMPENSATION

Catchwords:              Serious injury application – medical causation – credibility of plaintiff – neck injury – aggravation of cervical spondylosis – retained capacity of plaintiff – whether impairment consequences more than significant or marked

Legislation Cited:      Workplace Injury Rehabilitation and Compensation Act 2013          

Cases Cited:Haden Engineering Pty Ltd v McKinnon [2010] 31 VR 1; Hunter v TAC [2010] VCC 469; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326; Kollington v Veritas Recruitment Essendon Pty Ltd [2023] VCC 2220

Judgment:                  Application granted

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M Seelig	Slater and Gordon Ltd
For the Defendant	Ms K Manning	TG Legal and Technology Pty Ltd

HIS HONOUR:

1Serena Toth suffered injury at work on 5 November 2020 to her neck. The issue in this case is whether or not that injury has resulted in impairment consequences that constitute a “serious injury” when regard is had to s325 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”).

2In opposing the application, the defendant’s position is that any workplace injury has essentially resolved leaving the plaintiff with symptoms associated with underlying degenerative change.  If they were wrong about that, the defendant submits that any extant neck injury does not have impairment consequences which satisfy the relevant threshold.  In that assessment, they ask the court to find that the plaintiff was not a credible witness and, as such, could not be accepted as to her impairment consequences. 

3For the reasons which follow, I find that the plaintiff continues to suffer from an aggravation of cervical spondylosis.  I have further found that although the plaintiff was not a witness of credit, an assessment of the evidence overall leads to a finding that she has satisfied the statutory test.  In those circumstances, I have made a determination that she has suffered a serious injury.

Brief relevant chronology

4The relevant background of the plaintiff was not in dispute and I set it out only briefly to give context to the two critical issues in this matter which revolve around (i) medical causation of any extant injury, and (ii) the impairment consequences flowing from that injury.

5The plaintiff was born in September 1966.  She is currently 58 years of age.  She finished school in about Year 11 and then commenced working in about 1984, where she did some general labouring work.

6In that same year she began a nursing course at the Geelong Hospital.  She completed her nursing qualifications in 1987 and then undertook a practical training year. She qualified as an enrolled nurse in 1988 and worked at a nursing home on the Bellarine Peninsula.  She did this work for about 14 years, when she commenced a family.  She had three children shortly thereafter.

7In about 2014, the plaintiff began work with the defendant as an enrolled nurse.[1]

[1]Plaintiff’s Court Book (“PCB”) 4, Affidavit of Serena Toth dated 22 February 2024 at paragraph [7]

8The plaintiff then had a series of unfortunate, unrelated medical events.  She had polycystic kidney disease and she began receiving dialysis treatment in about 2010.  She then had a consequential brain aneurysm.

9In 2015, she had a kidney transplant as she was in late stage renal failure.  She was commenced on immunosuppressant medication. This affects her ability to take a range of medications, one of which is Ibuprofen which is an anti-inflammatory and pain relieving medication.

10On 5 November 2020, the subject incident occurred.  She describes the incident in the following terms:

“On 5 November 2020 I was working in the Dementia Ward of the Respondent’s facility. An aggressive resident was trying to get into the kitchen area where he was not allowed as it was unsafe for him to be there. I was on the inside trying to hold the door handle closed and trying to stop him from opening it. The resident was on the other side and he forcibly opened the handle and pushed the door into me, causing me to be thrown around and suffer injury.”[2]

[2]PCB 6, Affidavit of Serena Toth dated 22 February 2024 at paragraph [20]

11The plaintiff attended her treating doctor, Dr Kafi, the next day.  She was advised to apply a heat pack and take medication, being Panadeine.[3]

[3]PCB 44

12The plaintiff experienced ongoing neck pain[4] and, on 17 November 2020, completed a claim form.  She began seeing a physiotherapist for treatment of her neck.[5]  She did not find the physiotherapy helpful. She had pain in her neck and right side, more so over the right shoulder and into the right arm.  It was causing her difficulty sleeping and she recounted to her doctor that her neck pain was constant.[6]  She was referred for an x-ray of her cervical spine.  That x-ray, on 10 December 2020, showed mild degenerative change of the cervical spine.  There was no spondylosis or issues with compression of the vertebral bodies.  An MRI was recommended.[7]

[4]PCB 45

[5]PCB 47

[6]PCB 45

[7]PCB 22

13As of January 2021, the plaintiff returned to work undertaking light duties but was noting that she had pain in her right arm and was taking Panadeine Forte two times per day on occasion.[8]  An MRI of the cervical spine was performed on 19 January 2021 and it recorded degenerative changes in addition to a disc protrusion contacting the anterior cord and resulting in a minor narrowing of the central vertebral canal.  There was no evidence of nerve root impingement.[9]  The plaintiff was referred for neurosurgical opinion and commenced physiotherapy treatment again.  Over the next six months, she had ongoing physiotherapy and completed about one consultation per week. 

[8]PCB 48

[9]PCB 22

14She continued to complain to her treating doctor of ongoing numbness and pain in the neck and right arm.[10]

[10]PCB 49, PCB 28

15On 31 March 2021, the plaintiff had her first consultation with Mr Rana Dhillon, neurosurgeon.  Unfortunately, the radiology was not available at that time and only broad advice was given as to options for treatment.[11] 

[11]        PCB 29

16In late May 2021, the plaintiff returned to Mr Dhillon, who considered the radiology and advised her that there was no role for operative intervention.  She was advised to continue with her physiotherapy and dry needling program.[12]

[12]        PCB 31

17In June 2021, the plaintiff resigned her employment as a nurse with MACS Geelong.  She had occupied that position for around 17 years working around 30 hours per week.[13]  She formed the view that she was unable to continue to fulfil the duties of a nurse and so began working as a medical receptionist on reduced hours of about 15 hours per week.[14]

[13]        PCB 9, Affidavit of Serena Toth dated 22 February 2024 at paragraph [39];   PCB 15, Affidavit of Serena Toth dated 21 February 2025 at paragraph [20]

[14]        PCB 9, Affidavit of Serena Toth dated 22 February 2024 at paragraph [39]

18It appears that around late 2021, her physiotherapy treatment ceased and she returned to her general practitioner with ongoing problems in the neck and right arm, and was referred on for osteopathy treatment.[15]

[15]PCB 57

19There is then very little by way of treatment over the next 18 months.

20In about April 2023, the plaintiff moved to Queensland with her daughter. She obtained a job as a medical receptionist working for a small clinic.  In that position she works between 20-25 hours per week.  She began consulting Dr Elisabeth Johnson.  She continued to complain of neck and back pain.[16]

[16]PCB 62

21On 5 October 2023, she consulted Dr Terrence Saxby, a consultant orthopaedic surgeon and medico-legal consultant, arranged by the defendant.  He opined that the plaintiff suffered the ongoing effects of an aggravation of underlying degenerative change which rendered her incapable of working in aged care, but that she was able to work as a receptionist.[17]

[17]Defendant’s Court Book (“DCB”) 4

22She continued to report problems to her treating doctor of pain in her neck.  She then began consulting an osteopath, Dr Mariel Hecher.[18]

[18]        PCB 33

23By November 2024, Dr Johnson was recording that the plaintiff’s symptoms had worsened and she had constant neck and back pains which were extending bilaterally into the shoulders and arms.[19]

[19]PCB 34

24Dr Johnson was of the opinion that she could not return to work as an enrolled nurse.

25On 13 September 2024, she was examined by Mr Hazem Akhil, a medico-legal neurosurgeon, who provided an opinion for the plaintiff.[20]  His opinion broadly was that she was suffering from a work-related aggravation of underlying cervical spondylosis.  He considered that condition was extant and it prevented her from returning to her position as a nurse.  He considered that she was capable of performing the duties that she was undertaking as a medical receptionist on reduced hours.

[20]        PCB 40

26In early 2025, the plaintiff was referred by Dr Johnson to see a pain specialist, Dr Sami Ahmad.  He commenced her on a course of the nerve pain medication, Gabapentin, which has been titrated upwards since first being prescribed.[21]

[21]PCB 36

27Most recently, the plaintiff was examined by Dr Seyed Alavi on 3 March 2025, a medico-legal neurosurgeon who examined her for the defendant.[22]  He opined broadly that she had sustained a now resolved injury to the neck from the workplace incident in November 2020.  He considered that she now only suffered from symptoms associated with worsening degenerative changes in the neck and spine.[23]  He accepted that she could no longer work as a nurse but that it was appropriate that she work as a receptionist. 

[22]        DCB 24

[23]        DCB 28

Issue 1:  Was an injury to the plaintiff caused at work?

28While the defendant conceded that an injury was caused to the plaintiff at work in the manner described it focused on what it termed medical causation.  I took this to be a submission that any injury caused in November 2020 was transitory and such injury had now resolved.  Relying on Dr Alavi’s opinion, the defendant then submitted that any current problems associated with the plaintiff’s neck related to the natural degenerative process at work in the cervical spine.  I would reject that submission and do so because I cannot accept the opinion of Dr Alavi.

29When examined closely, Dr Alavi’s opinion is clearly an outlier between all other practitioners.  Starting with Dr Dhillon, the initial neurosurgeon.  In his report of 31 March 2021, he considered that the plaintiff had sustained a workplace injury in the manner described in November 2020.[24]  I accept that this is not a strong opinion on causation, as he generally seemed to accept her history and had no recourse to the scans at the time of forming that opinion. 

[24]PCB 29

30Of more use, however, is Dr Akil’s opinion.[25]  He clearly stated, in respect of his diagnosis after an assessment of the plaintiff’s history, the radiology, clinical examination and her course of treatment, that she had sustained an aggravation of cervical spondylosis with referred pain to both shoulders and the interscapular region.  He considered, at the time of his examination, that the pain she was currently experiencing was caused by the injury in November 2020. 

[25]PCB 40

31This is supported by Dr Saxby’s opinion.[26]  He records:

“The current clinical presentation I believe is consistent with the workplace incident. I would say there has been what appears to be an aggravation of a constitutional problem, that being cervical spondylosis. But the difficulty here is with the progression of time, the underlying condition of cervical spondylosis is likely to continue to deteriorate.”

[26]DCB 13 at [4.3]

32In combination, the reporting of Dr Akil and Dr Saxby, having regard to the radiology, performed a clinical examination and the history of the matter, they have come to considered opinions.  I prefer the weight of their opinion to that of Dr Alavi.  As a result, I find that the plaintiff suffers from a workplace injury which can be defined as an aggravation of cervical spondylosis with referred pain to the right upper limb and interscapular region.

Issue 2:  What impairment consequences result from the work-related injury?

Was the plaintiff a credible witness?

33The defendant squarely put the plaintiff’s credit in issue on this topic.  It argued that the plaintiff’s evidence was such that she could not be accepted in respect of the impairment consequences she deposed to having suffered.  Before turning to consider each of the impairment consequences, it is necessary now to make findings as to the credit of the plaintiff. 

34The submission pressed was that the plaintiff’s affidavits did not present a full picture of the plaintiff’s hobbies and recreational activities. This was primarily in relation to three areas. The first was a small Facebook enterprise called “Cookie Delights by Serena”, which was an enterprise which sold cookies to the public. The second was in relation to her holiday pursuits.  The third was in relation to her true level of activity in caring for her children and undertaking household tasks.

“Cookie Delights by Serena”

35The plaintiff swore three affidavits, being 22 February 2024, 21 February 2025 and 17 March 2025 (the day before trial). 

36In her first affidavit of 22 February 2024, the plaintiff deposed in the following way:

“Because of my injuries and the impact on my ability to cut, peel, stir, mash, knead, lift to manoeuvre heavy pots, pans and baking dishes and the like, I now avoid cooking and baking as much as I can. I do cook a little bit from time to time but just for basic necessities for the family. I do not derive any pleasure from cooking or baking and I am really sad that I am no longer able to provide delicious meals and treats for my family and friends, as this was something that I did derive a lot of pleasure and satisfaction from, as it was my way of giving to those around me.”[27]

[27]PCB 8 at [32]

37In her second affidavit of 21 February 2025, the plaintiff stated:

“I am still not able to engage in hobbies or recreational activities that I referred to in my first Affidavit. I tend to now use all my energy and pain tolerance just to exist each day, and not to even try to enjoy life.”[28]

[28]PCB 16 at [21]

38The day before the trial began, the defendant included in its Court Book, material from the plaintiff’s Facebook page.  That page was titled “Cookie Delights by Serena”, an enterprise which made cookies of a variety of different types and sold them.  Some were for functions such as birthdays or staff gatherings, or for celebrations such as at Christmas. 

39In response to the inclusion of this material, the plaintiff and her daughter, Lucy Toth, swore affidavits.  In those affidavits, they disclosed the establishment of the “Cookie Delights by Serena” business and provided some detail as to the work that it did. 

40Overall, the plaintiff submitted that there were only something like 600 cookies made in the period from November 2021 to the date of trial.  The income generated from sales of these was incredibly small.[29]  As a result, the plaintiff submitted the “Cookie Delights by Serena” business was of little moment.  I would not accept this submission.

[29]        Transcript (“T”) 79, Line (“L”) 2

41The primary purpose of the affidavit material in a serious injury application is a disclosure of relevant matters which go to the impairment consequences and capacities that the plaintiff has.  It is well known that a plaintiff in a serious injury application gives all relevant evidence by way of their affidavits.  Failing to disclose a material matter which goes to a capacity lost or retained has consequences in terms of the court’s confidence in accepting that it has been told the whole truth.  Here, the substance of what was not disclosed is only one factor in considering the severity of the non-disclosure itself.

42As can be seen from the plaintiff’s first affidavit, she was acutely aware that her capacity to bake and cook was central to her application. This was no doubt because she based her application on the fact that her workplace injury had deprived her of her capacity to cook and bake as she used to.  From the time of the first affidavit, her abilities to cook and bake were centrally relevant.  However, she failed totally to mention that after her injury in November 2020, she had in fact established a business online. That is, she had been injured, been assessed, had medical treatment and specialist opinion, left her job of 17 years and yet formed the view that she would be able to start a baking business selling cookies.  That exercised the very capacity which she now claims in her first two affidavits to have substantially lost.

43Further, even after the first affidavit was filed referring to this impairment consequence, she continued to advertise on the internet and make posts seeking work making cookies numerous times before the filing of the second affidavit.  In that second affidavit, she describes not obtaining enjoyment in life but simply trying to “exist”.  She does not mention at all the “Cookie Delights by Serena” business or the fact that it must have given her some pleasure, either in spending time with her daughter or in the art of making the cookies by decorating them, or else she would not continue with the business.  This is particularly so as the business was most probably not profitable. In that circumstance the primary reason to continue it was for enjoyment.

44The failure to disclose these matters over two affidavits is completely unexplained.  Counsel for the plaintiff could not explain why they were not disclosed.[30]  When the plaintiff was cross-examined about these matters, she simply replied that she did not think it was relevant.  When it was pointed out to her that in her first and second affidavits she had thought it relevant to mention her inability to cook and bake, she was evasive as to why, given it was relevant in the affidavits, she had not mentioned her business which was centrally concerned with baking.  I consider overall that the plaintiff’s evidence on this point lacked credibility.

[30]        T102, L1

Holidays

45Next, the defendant submitted that the plaintiff’s evidence did not disclose her holiday to Bali.  In her first affidavit, she deposed to enjoying going on trips to the snow or to mountain ranges, or to other parts of Victoria “just to get out and about”.[31]  She also deposed to enjoying going on holidays to Echuca before her injuries but was not able to do that anymore.  She deposed to now being more of a recluse and a bit ashamed and embarrassed at not being able to do much at all.[32]

[31]PCB 5 at [14]

[32]PCB 9 at [36]

46In keeping with this, in the plaintiff’s second affidavit she deposed to not wanting to go with her family to Dreamworld because she could not be bothered because of her symptoms and impact from injuries.[33]  She confirmed that she used to enjoy getting out and about and doing adventurous things but now she just stayed home.

[33]PCB 14 at [13]

47Quite clearly, the plaintiff put in issue that one of the impairment consequences flowing from her workplace injury was her lack of ability to holiday and enjoy doing new and adventurous things.

48The defendant then tendered Facebook material which showed that the plaintiff had gone on a holiday to Bali with her family, which she accepted was about a 10-day holiday in 2023. That holiday was not mentioned in any of her three affidavits.

49Once again, when confronted with this material, the plaintiff simply responded by saying that she did not think it was relevant.  I repeat my comments above that the plaintiff quite clearly thought such matters were relevant when it came to deposing that they were impairment consequences, and it is inexplicable why she then would think that a 10-day overseas holiday to Singapore and Bali was not relevant.  Similarly, counsel for the plaintiff could not explain why these matters were omitted from her three affidavits.

Caring for grandchildren

50Third and allied to this was the plaintiff’s evidence that she played little role in caring for her grandchildren. On this her evidence was inconsistent. In her affidavit she stated,

“I try to do what I can to help my daughter with her child but because of the pain and discomfort there is often not a lot that I can do. I now struggle to do household activities such as hanging out clothes or cleaning the house.”[34]

However in cross-examination she conceded being able to do a large range of activities with her grandchildren.[35] She effectively conceded that the limited range of chores she could do was incorrectly stated in her affidavit.[36]

[34]        PCB 9, Affidavit of Serena Toth dated 22 February 2024 at paragraph [37]

[35]        T63, L1-27 and T64 L8

[36]        T63, L27

51For reasons set out above in failing to deal with the plaintiff’s failure to disclose the baking, holidays and childrearing ability, I consider that her evidence on these points lacked credibility and I do not accept it.

52These matters I consider to be so substantial that I found that the plaintiff’s evidence, as to her impairment consequences broadly, lacks credit and cannot be accepted.

Issue 3: Determination of Serious Injury

Impact on work capacity

53Although I have come to a finding that the plaintiff’s evidence in respect of her impairment consequences is broadly not credible, it still falls to me to assess all the evidence to determine whether or not the plaintiff is entitled to a determination that she has a serious injury.  The evidence in respect of her work capacity is overwhelming.  It speaks with one voice that she is no longer able to participate in her chosen profession as an enrolled nurse by reason of the neck injury. [37]

[37]        Dr Alavi at DCB 29, Dr Saxby at DCB 8, Dr Akhil at PCB 40

54While Dr Alavi attributes this work incapacity to constitutional factors, I have rejected that evidence.  However, even he opines that she does not have the capacity to work as an enrolled nurse. This loss of a career for which she had trained academically and practically, and worked in since about 1987, is a very significant blow.[38]

[38]Haden Engineering Pty Ltd v McKinnon [2010] 31 VR 1 at [15]; Hunter v TAC [2010] VCC 469; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326

55This opinion can be separated from any reliance on the plaintiff’s recounting of impairment consequences to the doctors.  This is because they have the benefit of the clinical notes, the radiology findings and clinical examinations in coming to their opinions. These matters operate independently of the plaintiff’s recounting of her impairment consequences.  As a result, I find that the plaintiff has lost the capacity to work as an enrolled nurse by reason of her neck injury sustained at work.

56Associated with this, I find that her retained capacity to work is as a receptionist for between 20-25 hours per week.

Pain

57The plaintiff has given evidence in her affidavits in respect of her pain consequences.  While I have expressed real misgivings as to accepting her evidence, I note that the pain medication which she has been prescribed, and has taken over a long period of time, has never been found to be contraindicated by doctors.  In fact, the pain specialist, Dr Ahmad, has recently introduced the plaintiff to Gabapentin and has increased the dose. This is somewhat more objective evidence that there is an organic basis for the pain that he is trying to address. 

58With that more objective evidence, I am prepared to accept that the plaintiff has an experience of constant pain that equates to what she has deposed to being  in the range of being 6-7/10 on good days and up to 10/10 on bad days.[39]  How often these bad days are cannot be determined but I consider constant pain at that level (of even 6-7/10) and for which medication is prescribed is significant.

[39]       PCB 13, Affidavit of Serena Toth dated 21 February 2025 at paragraph [8]

Sleep and other impairment consequences

59The plaintiff claims a range of other impairment consequences such as impact on her sleep, enjoyment of life and ability to pursue recreational activities. 

60For the reasons set out above in respect of my findings on credit, I do not accept that the plaintiff has discharged her burden on the balance of probabilities of proving what those impairment consequences are.  I am not prepared to accept them.

Assessment

61Stepping back to analyse the plaintiff’s case overall and evaluate the factors, I find that the plaintiff’s neck injury has caused the loss of her ability to practice in her profession. She valued and enjoyed that work.  The defendant submitted that by itself these matters were insufficient to accept the plaintiff’s claim. In reliance on that submission the defendant relied on Dobbin v VWA [2022] VCC 2173. In that case the plaintiff had torn the tip of an index finger and had claimed he was unable to pursue his trade as a mechanic or join the emergency services. I could not distil any particular principle from His Honour’s judgment in the case which supported the submission that the loss of a profession was not by itself determinative of the issue of serious injury. The defendant also called in aid a decision of Judge Purcell in Kollington v Veritas Recruitment Essendon Pty Ltd [2023] VCC 2220. In that case the plaintiff had suffered injury to the left hand and wrist and claimed an inability to return to work as a mechanic. His Honour cited Ellis Management Services Pty Ltd v Taylor in the following terms:

“As has repeatedly been held, the inability of a worker to engage in employment which he or she enjoyed is a matter that may properly be taken into account in assessing pain and suffering and loss of enjoyment of life. Similarly, frustration at being unable to engage in former activities (work or leisure) may be a matter properly to be taken into account in assessing pain and suffering consequences.”[40]

[40] [2013] VSCA 326

62Having regard to that His Honour noted that the plaintiff had given no evidence that he enjoyed his work as a mechanic or that he was frustrated by not being able to continue in that trade; instead focusing on the financial impact of his injury.[41] In that circumstance His Honour did not take the loss of his occupation into account in an assessment of the pain and suffering consequences in the way permitted by Ellis. Kollington of course is not this case given the plaintiff here deposes to having enjoyed her work and was sad that her profession had been lost to her. Overall, I do not think these two authorities advance the defendant’s submission.

[41]        Kollington at [93]

63Having assessed the matter in its entirety and considering those capacities she has retained which can be objectively ascertained, such as to work, I consider that her loss of occupation in combination with her constant pain, and long term prescribed pain medication, I consider that she has sustained impairment consequences which are more than significant or marked.

64In those circumstances, I will grant the plaintiff’s application and find that she has sustained a serious injury.