Serious Injury Applications pursuant to WorkCover Legislation

Serious Injury Applications

pursuant to
WorkCover Legislation

- page 1 of 16 -
 Serious Injury Applications pursuant to WorkCover Legislation

Serious Injury Applications pursuant to

WorkCover Legislation

Common law damages is defined as “the principal remedy a defendant is required to

pay to a plaintiff as a result of the defendant’s tort or breach of duty”.

Workcover Legislation provides for the recovery of:

General Damages – pain and suffering and loss of enjoyment of life

Special damages – economic loss to the plaintiff due to an injury – both past and
future

 No automatic right of injured workers to pursue

common law damages

In Victoria workers who want to pursue common law damages must satisfy a
threshold test – known as the Serious Injury Test – pursuant to S 134AB of the
Accident Compensation Act 1985.

The threshold test is necessary because it’s in the interest of industry and the
economy that employees not sue their employers for injuries they have sustained
unless such injuries are “more than significant” or “at least very considerable”. Keep
in mind that the government must balance the interests of injured workers and their
right to compensation in circumstances were they may be enduring great hardship due
to the fault of a system of work, with the interests of employers in keeping their
insurance premiums to a reasonably low level so that it doesn’t interfere and deter
employment and profitability.

 Workcover legislation is beneficial legislation

The whole purpose of the Workcover Scheme is to benefit injured workers.

The legislation was not intended to be onerous or difficult to access. Often,
particularly in proving that work was a significant contributing factor for example
(which we’ll come back to later) the benefit of the doubt is given to worker.

 Definition of Serious Injury (as defined by s 134AB(37))

“serious injury” means –

(a) permanent serious impairment or loss of a body function: or
(b) permanent serious disfigurement: or
(c) permanent severe mental or permanent severe behavioural disturbance or
disorder: or
(d) loss of a fetus

- page 2 of 16 -
 Serious Injury Applications pursuant to WorkCover Legislation

The physical serious injury provision

S 134AB (37)(a) “permanent serious impairment or loss of a body function”

The relevant considerations which apply to such applications are as follows:

ie for an injured worker to be successful a number of elements must necessarily be
present:

1. Identify a compensable injury

2. The injury and the impairment must be permanent

3. Specific burden on the plaintiff in relation to work capacity

4. More than “significant” or “marked”, and as being at least

“very considerable”

5. Only the physical consequences of an organic injury can be

considered when determining whether an injury satisfies
the physical serious injury test

- page 3 of 16 -
 Serious Injury Applications pursuant to WorkCover Legislation
The Physical Serious Injury Provision

1. Identify a compensable injury

Before a court can determine whether an injury can be classified as a serious injury, it
must first be satisfied that they are evaluating a compensable injury. That is, the injury
is work related.

A work related injury is an injury were work has been a significant contributing
factor.

 Work only needs to be one of the factors – it can be one of several factors

It is irrelevant that something else was also a significant contributing factor. The
legislation does not require the employment to be more than one of perhaps several
factors. The employment need not be the sole factor, or even the main factor.

In Meddis v VWA, Rendit J considered whether employment could be said to be a

significant contributing factor in circumstances concerning the rupture of a blood
vessel, giving rise to a cerebral vascular accident. Judge Rendit noticed that the facts
of each case must be looked at in light of its own circumstances and an assessment
made factually whether the employment was a significant contributing factor to the
happening of the injury. Judge Renit considered that “it means more than de minimis
but less than a major or dominant factor. Indeed, one can have several significant
contributing factors which are unrelated but which play their part in the occurrence of
an injury.

 Work need not be the precipitator of the genesis of the injury, it need only
aggravate, accelerate or exacerbate a pre-existing condition or injury

Example, Take a Plaintiff that suffers from a moderate degree of degeneration in their
lumbar spine. They have experienced aches and pains around their lower back in the
past.

The Plaintiff takes on a new job which involves some lifting of moderate weights.
After a few days of lifting the plaintiff experiences a lot of pain in the lumbar spine
and lodges a Workcover claim. Clearly the few days of work has not caused the
degeneration in the lumbar spine. However if it can be said that work has aggravated,
accelerated or exacerbated the degenerative change, the injury is work related.

It’s not a very high hurdle. If there is degenerative change, even minimal degenerative
change, and the Plaintiff complains of pain emanating from it, work is a significant
contributing factor.

- page 4 of 16 -
1. Identify a compensable injury
 Serious Injury Applications pursuant to WorkCover Legislation
The Physical Serious Injury Provision

 A plaintiff must be able to point to the source of their pain.

If a plaintiff suffers from pain the source of which can’t be determined the application
fails.

Example, Take a plaintiff with a sore neck and a sore shoulder. They have a
neurosurgeon treating the neck an MRI of which reveals disc bulges. Additionally
they may be treated by an orthopaedic surgeon who arranges an Ultrasound that
reveals tendonopathy.

Say for example that this particular plaintiff suffers pain from the side of the neck into
the shoulder including the trapezius region. The treating neurosurgeon feels that the
disc bulges are quite mild in nature and after clinical examination of the neck
concludes that there isn’t much wrong with the neck. The neurosurgeon accordingly
impugnes the shoulder as the source of the pain and defers to the orthopaedic surgeon
for treatment. The orthopaedic surgeon on the other hand clears the shoulder of any
injury and as the source of the pain and postulates that the source of the pain could be
the disc bulges for which an opinion should be sought from the neurosurgeon.

In the above scenario the serious injury application will fail because a compensable
injury hasn’t been identified. Even if the Plaintiff has been suffering from significant
and protracted pain and has been genuinely unable to work a court cannot find the
plaintiff suffers from a serious injury and therefore cannot claim common law
damages.

 Serious Injury Applications can only be brought for injuries that are accepted
and work related.

Example, A throw away line by a treating specialist like “Mr X suffers from a
degenerate back at multiple levels with resultant back pain and an inability to perform
his pre-injury duties. The exact source of his pain within the lumbar spine however is
uncertain.”

The specialist may have remarked that the source is uncertain from the point of view
surgery being unlikely to be of benefit, but the remark may have a fatal effect on the
serious injury application in that the precise injury hasn’t been identified.

In such situations the plaintiff’s lawyer will be scurrying to request a supplementary

report to clarify the situation 

- page 5 of 16 -
1. Identify a compensable injury
 Serious Injury Applications pursuant to WorkCover Legislation
The Physical Serious Injury Provision

2. The injury and the impairment must be permanent

In a famous Victorian Supreme Court of Appeal case that defined much of the current
serious injury provision called Barwon Spinners Pty Ltd & Ors v Podolak (2005) it
was held that the injury and the impairment flowing from the injury must be
permanent, that is, permanent in the sense that it is “likely to last for the foreseeable
future”.

It follows that the court doesn’t hear serious injury applications where surgery has
been scheduled to take place some time (even months) after the court hearing. This is
of course because the impairment of the plaintiff is unknown until after some time
lapses post surgery.

In scenarios where a treating surgeon predicts that surgery will greatly improve a
worker’s functional capacity with a strong likelihood of a return to work, and the
plaintiff opts away from surgery due to fear of complications or even the surgery
itself, the serious injury application can be heard as the impairment is permanent if the
plaintiff has made a considered decision not to have surgery.

Plaintiff’s are not punished for opted away from surgery even in circumstances were it
is quite clear from the medical opinion that it shall be beneficial.

- page 6 of 16 -
1. Identify a compensable injury
 Serious Injury Applications pursuant to WorkCover Legislation
The Physical Serious Injury Provision

3. Specific burden on the plaintiff in relation to work

capacity

Section 134AB(38)(e) imposes a specific burden on the plaintiff in relation to a claim

for loss of earning capacity.

Quite often economic loss damages represent the bulk of a common law settlement.
It’s not surprising that much of the litigation at the serious injury level revolves
around whether a plaintiff suffers the requisite loss of earning capacity.

At the serious injury application stage the Plaintiff must show a loss of earning
capacity of 40% or more. To arrive at a loss of earning capacity of 40 per cent or
more, the plaintiff must compare his income from personal exertion prior to suffering
injury with the gross income which he is now able to earn from suitable employment
or capable of earning from suitable employment.

 In evaluating serious injury the courts are concerned with whether a worker
can do work, not whether the work exists or not.

Ordinarily, workers who have a full time light work capacity do not satisfy the
economic loss limb of the serious injury test. They may have had back surgery with
ongoing pain and significant loss of enjoyment of life, but if they have a light work
capacity and could do light work that in theory would earn them well in excess of
61% of what they earned before their injury. They still do not gain leave to pursue
economic loss common law damages.

 Definition of “suitable employment”

Employment in work for which the worker is currently suited (whether or not that
work is available), having regard to –

a) the nature of the worker’s incapacity and pre-injury employment;

b) the worker’s age, education, skills and work experience

Example, An older non English speaking plaintiff who suffers from a disc prolapse
with radiculopathy is more likely to satisfy the serious injury provision than a young
English speaking manufacturing supervisor.

The young supervisor is more likely to possess the transferable skills making suitable
employment theoretically probable.

Example, A plaintiff suffers from a recurrent disc injury post surgery and his treating
surgeon may provide a medical report stating that he cannot perform his pre injury
duties indefinitely and with respect to alternative duties he should avoid all work
involving lifting of more than 2.5 kg, avoid twisting, sitting or standing for long
periods, and is required to take 5 minutes break every hour. Notwithstanding the
onerous restrictions, if such restrictions allow for suitable employment (ie if the

- page 7 of 16 -
3. Specific burden on the plaintiff in relation to work capacity
 Serious Injury Applications pursuant to WorkCover Legislation
The Physical Serious Injury Provision

plaintiff is middle age, has a good grasp of English and is reasonably intelligent), the
plaintiff’s economic loss application will fail if the suitable employment earns him
61% of his pre-injury earnings.

Example, If the same plaintiff’s treating surgeon had stated the following; “probably
can’t perform his pre-injury duties but would be able to perform various light work on
a part time basis”, the worker’s application would be successful. The court would
consider part-time as being a 50% loss and would therefore grant the plaintiff’s
application. Naturally the damages this plaintiff would receive in proceedings after
the serious injury application would be restricted by the opinion that he can work part
time but at least he would be able to claim economic loss.

Plaintiff’s solicitors are therefore often at pains to inquire of the medical practitioners
the maximum number of hours per day and number of days per week the Plaintiff can
work in suitable employment.

 The courts always import a degree of realism when assessing whether a plaintiff
can perform suitable employment.

A worker may have a light work capacity, but it doesn’t necessarily mean they can do
suitable employment.

When writing reports and commenting on work capacity please bear in mind that
although it’s a theoretical question of functional capacity an element of realism should
be reflected in the opinion, b/c ultimately the capacity must correspond to suitable
employment.

The opinion, “unlikely to be able to perform gainful employment” is a term often

accepted by the courts as reflecting an appropriate balance between what is a
purely theoretical question with the real world and the requirements of a real
job.

- page 8 of 16 -
3. Specific burden on the plaintiff in relation to work capacity
 Serious Injury Applications pursuant to WorkCover Legislation
The Physical Serious Injury Provision

4. More than “significant” or “marked”, and

as being at least “very considerable”

There is no magic formula a Judge of the County Court can apply when trying to
determine whether an injury is a serious injury or not. They must use their considered
judgment having regard to all the medical evidence at hand (that’s why medical
reports are so very important) and the plaintiff’s evidence in the form of their
Affidavit that accompanies the documents comprising a serious injury application and
the Plaintiff’s evidence at the hearing.

Section 134AB(38)(c) provides the impairment (flowing from the claimed injury)
must have consequences in relation to “pain and suffering” and “loss of earning
capacity” which, when judged by comparison with other cases in the range of
possible impairments or losses of a body function, may fairly be described as
being more than “significant” or “marked”, and as being at least “very
considerable”.

 Importance of language used in medical reports

Because Judges are essentially required to make a value judgment and make a
comparison of the particular impairment of the case with other impairments in the
range of possible impairments they are often swayed by the language and terminology
used in medical reports.

Different doctors often term the same injury differently and the difference in
expression can have marked affects on the impression made on the Judge.

Example The conclusion of an MRI of the Lumbar Spine of an existing client reads
as follows:

“1. Mild degenerative changes L3-4 and L5-S1.

2. Small left paramedian disc bulge L3-4 without significant neural compression.
3. Small-moderate sized posterior disc bulge L5-S1 without high grade neural
compression.”

Dr A describes the findings and opines as follows:

“Mrs X sustained ruptures involving both her L3-4 and L5-S1 lumbar
intervertebral discs, during a heavy lifting and pushing activity, in the course
of her employment, with the employer, on the 1st of October 2008.”

Dr B describes the findings and opines as follows:

“Mrs X suffers from on radiology mild degenerative changes at L3-4 and L5-
S1, aggravated during her with the employer on 1 October 2008”.

- page 9 of 16 -
4. More than “significant” or “marked”, and as being at least “very
considerable”
 Serious Injury Applications pursuant to WorkCover Legislation
The Physical Serious Injury Provision

Even though Dr A may believe that mild degenerative changes are akin to disc
ruptures, the phrase ruptured disc would go much further to swaying a judge toward
serious injury than the term degenerative change.

In another trial Dr A revealed that he thought disc desiccation was the same as a disc
rupture. Again rupture is far more a colorful term.

Example The term “annular tear” and “internal disc disruption” may mean the same
thing but “internal disc disruption” would carry more weight. Please remember that
the Judge is not a doctor and must make a value judgment often by looking to the
medical reports and the language contained therein.

In cases where a disc injury results in radiculopathy, the description given to the
physiological change in the discs is not as important b/c the effect of the disc injury –
ie radiculopathy - is seen as significant and very important in judging whether the
impairment is serious.

In fact, when disc injuries result in discogenic pain in the buttocks or limb, or
neurogenic pain in the buttock or limb, the magnitude of the physiological change in
the disc is not so important because there is real and justified pain emanating from the
disc.

Again the benefit of the doubt is often given to the worker and although it may
ostensibly seem like serious injuries’ are difficult to prove, they are generally
successful. Approximately 45% of serious injury are granted at the Application stage.

Of the serious injury applications that are initially rejected by the insurers, 80% are
successful at court or before.

This of course doesn’t mean that all damages entitlements are similar.

 Consequences

Although very often the Plaintiff’s radiological findings, in particular on MRI, form
the cornerstone of the Plaintiff’s case, it is certainly not conclusive.

In evaluating whether an injury is more than significant or marked or at least very

considerable regard must be had to the consequences of the injury.

A Plaintiff who had a large disc extrusion and underwent a discectomy may
experience many more good days than bad, and the plaintiff’s bad days may only
require him to take the occasional panadol.

Another plaintiff with only a mild broad based disc bulge resulting in some irritation
of the traversing nerve, may experience significant impairment involving a decrease
in functional capacity, constant unremitting severe pain requiring strong opiate-based
pain killing medication, cortizone injections, interrupted sleep due to pain, altered
gait, inability to sit or stand in one place for longer than 15 mins, etc. As a result of
the significant constant pain, the Plaintiff has suffered from significant depression and
- page 10 of 16 -
4. More than “significant” or “marked”, and as being at least “very
considerable”
 Serious Injury Applications pursuant to WorkCover Legislation
The Physical Serious Injury Provision

anxiety requiring strong anti-depressants and regular visits to both a psychiatrist and
psychologist.

This plaintiff’s consequences are much greater than discectomy plaintiff

notwithstanding that the plaintiff on radiology only suffers from a mild broad based
disc bulge. Their application is very likely to be successful, whereas the discectomy
plaintiff’s ongoing consequences are mild.

- page 11 of 16 -
4. More than “significant” or “marked”, and as being at least “very
considerable”
 Serious Injury Applications pursuant to WorkCover Legislation
The Physical Serious Injury Provision

5. Only the physical consequences of an organic injury can

be considered when determining whether an injury
satisfies
the physical serious injury test

Section 134AB(38)(h) provides that the psychological or psychiatric consequences of

a physical injury are to be taken into account only for the purpose of paragraph (c) of
the definition of “serious injury” and not otherwise.

In other words, if a plaintiff wants to rely on any psychiatric consequences like

depression and anxiety their serious injury application must be brought with respect to
subsection (c) permanent sever mental or permanent severe behavioural disturbance
or disorder (this provision of serious injury is difficult to prove – hence the term
“severe” which is purposely meant to be viewed as a higher standard than “serious”.
Normally one would expect a Plaintiff to be treated as an impatient in psyciatric
hospitals etc before the consequences can be considered severe).

 Functional overlay, chronic pain syndrome, abnormal illness behaviour, etc….

Most plaintiff’s suffer from a degree of functional overlay. They were previously fit,
strong and healthy and are now struggling to come to terms with an injury which has
turned their world upside down. Suddenly they struggle to meet the mortgage
payments, pay the school fees and buy Christmas presents, all the things we as
everyday people take for granted. A degree of functional overlay sometimes ensues.

 It is for the Plaintiff however to prove their case. The organic consequences
must be disentangled from the non-organic.

The Court of Appeal said in Barwon Spinners “…the proper identification of pain and
suffering attributable to impairment which is physical, or physiological in origin,…
requires that the psychological or psychiatric overlay be stripped aside. …”

As with most areas of the Workcover law, Zaparas lawyers have been for some years
at the forefront as the law has developed.

The significant cases that form the current state of the law are both our firm’s. They
are Jayatilake v Toyota Motor Corporation Australia Ltd (2008) where leave was
granted by the High Court only to see Workcover withdraw the leave application at
the eleventh hour and Mutual Cleaning & Maintenance Pty Ltd v Stamboulakis
(2007).

The law in this area is quite complex. I won’t go into exactly what the Court of
Appeal said in these matters, but a quick statement from each is as follows:

In Stamboulakis the Court of Appeal felt that it was necessary for the court
disentangle the organic consequences from the non-organic by quantifying the
quantum of physical impairment and separately quantifying the quantum of
- page 12 of 16 -
5. Only the physical consequences of an organic injury can be
considered when determining whether an injury satisfies the physical
serious injury test
 Serious Injury Applications pursuant to WorkCover Legislation
The Physical Serious Injury Provision

psychologically based impairment. This approach to disentanglement was referred to

as the “trial medical approach”.

After the Stamboulakis judgment when we as lawyers, were writing to doctors and
asking them to perform this quantification, we invariably were told that it was not
possible to quantify. How does a doctor know how much pain is organically based and
how much is psychogenically based.

In Jayatilake the Court of Appeal paired back the onerous requirements of

Stamboulakis.

The court stated as follows:

“Section 134AB(38)(h) says nothing to suggest that the general approach is to

be abandoned in favour of trial by medical opinion. Simply, a plaintiff is required
to establish, in order to satisfy the presently pertinent aspect of the definition of
‘serious injury’, that he or she suffers an impairment or loss of function the
consequences of which, physically based, are serious in terms of pain and
suffering or loss of earning capacity.”

 Even if there is an overarching functional overlay that has no organic basis, if

the plaintiff suffers from an organic injury with resultant impairment that has
serious consequences the application shall be successful.

Example, A plaintiff suffers from an L5-S1 disc prolapse with nerve root
displacement. She experiences however leg pain and pins and needles throughout
most of her leg. Her neurosurgeon would expect her to complain of pain and
numbness in a S1 dermatomal fashion down her leg.

Even though the “glove like” altered sensation is not organically based, the
application would not ordinarily fail however b/c there is an underlying organic injury
and consequence. Sure, the whole picture is complicated and clouded by the presence
of the functional overlay, but it is not fatal.

That is why lawyers so often ask doctors to consider the physical injury and the
organic consequences only, disregarding or stripping away the psychological
consequences.

It’s easier to strip away as opposed to quantify the psychological consequences.

Golden Rule -The less said about non-organic consequences the better. When a
Plaintiff sees a treating neurosurgeon or orthopaedic surgeon they are seeing them to
evaluate the physical injury, not the psychological consequences.

Example, (This is a real example) Mr X through clenched teeth breathed in deeply

and grimaced expressively doing his best to contend for an academy award with his
performance. Application would ordinarily fail.
- page 13 of 16 -
5. Only the physical consequences of an organic injury can be
considered when determining whether an injury satisfies the physical
serious injury test
 Serious Injury Applications pursuant to WorkCover Legislation
The Physical Serious Injury Provision

Example, Mr Y suffers from aggravated spondylosis and referred leg pain. On

clinical examination his movements are far more restricted than one would expect,
particularly with forward flexion. He does however suffer from ongoing pain
secondary to the aggravated spondylosis and this pain has a physical basis.
Application would ordinarily be successful.

In one of Zaparas Lawyer’s lengthy trial in the County Court in a matter called
Nevenka Tosic – Mega Life Sciences (Australia) Pty Ltd, the case centered around the
opinion of Professor Mark Dohrmann.

During his evidence at trial Mr Dohrmann diagnosed a cervical prolapse based on an

MRI taken in 2006. The judge thought however that Mr Dohrmann’s findings over
time had been variable. He found non-organic collapsing weakness and the objective
evidence of a prolapse, namely slight diminution of right biceps jerk was found by
him during his second examination but not during his first examination in 2006. On
the third consultation in November 2008, where he did not examine the Plaintiff, he
noted that the October 2008 MRI Scan confirmed persisting right sided broad based
disc bulging at C5-6, later describing his finding as a prolapse.

As he considered there was a physical underlying demonstrable basis for the

plaintiff’s referred pain, he thought that to “brush off” a diagnosis of prolapse as a
chronic pain syndrome was “a little harsh and the plaintiff still deserved the benefit of
the proper underlying diagnosis, namely cervical disc prolapse with referred pain.”
However, after persistent questioning from the defendant barrister, Mr Dohrmann
thought it might be reasonable to add to his diagnosis “complicated by a superadded
chronic pain syndrome.”

In Mr Dohrmann’s view, whilst underneath there was a prolapse, the mismatch

between demonstrable objective pathology and the plaintiff’s presentation was one of
the reasons he did not operate.

After further protracted cross examination involving Mr Dohrmann being read various
other doctor’s findings of abnormal signs on clinical examination Mr Dohrmann
agreed that it was certainly true that someone could have a prolapse without
production of symptoms. He “suspected that there was a significant psychological
contribution to the plaintiff’s perceived symptoms,” but he “thought underneath it all
was an organic injury”.

In this case the trial judge dismissed the plaintiff’s application finding that “there is an
important psychological component to the plaintiff’s current presentation, ignoring
which, I am not satisfied that any impairment to her neck is serious.”

We appealed on behalf of the plaintiff and won the appeal. The Court of Appeal found
that the trial judge erred in her reasons by focusing on the psychological component.

- page 14 of 16 -
5. Only the physical consequences of an organic injury can be
considered when determining whether an injury satisfies the physical
serious injury test
 Serious Injury Applications pursuant to WorkCover Legislation
The Physical Serious Injury Provision

Mr Dohrmann had found symptoms referable to the disc prolapse and the fact
that there were non organic signs, that did not detract from the underlying
physical injury.

Even though the plaintiff exhibited clinical features which included those consistent
with cervical disc prolapse but with other additional features as well. He thought,
correctly, that that was extremely common and a matter of degree.

Note that a Plaintiff doesn’t necessarily require referred pain to be successful. Often
applications are successfully framed around disc injuries with no referred pain.
However when there is referred pain, the nature and extent of the referred pain is
necessarily evaluated by the court.

Rule: If there is an underlying physical injury which is a basis for the Plaintiff’s
pain it is good enough for the application to be successful. The Courts tend not to
care if there is resultant functional overlay when there is real pathology. The
Courts become concerned when there is no pathology and functional overlay.

- page 15 of 16 -
5. Only the physical consequences of an organic injury can be
considered when determining whether an injury satisfies the physical
serious injury test
 Serious Injury Applications pursuant to WorkCover Legislation
The Physical Serious Injury Provision

- page 16 of 16 -
5. Only the physical consequences of an organic injury can be
considered when determining whether an injury satisfies the physical
serious injury test