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Barry Lane
12 September, 2008  

Barry Lane seems to be having a bit of a giggle as the Victorian Court of Appeal grapples with “deciding for itself” in serious injury cases. It’s a tricky business, specially when “misunderstandings” from previous decisions have to be straightened out

imageFollowers of the “serious injury” wars will recall that when the Bracks government kept its election promise and restored common law claims for workers who suffered workplace injuries, it introduced two significant changes to the legislative scheme.

It ushered in s.134AD of the Accident Compensation Act 1985, which is the provision that has blindsided the Court of Appeal since 1999 – that is until the High Court told it in no uncertain terms in Calco that “decide for itself” means exactly that.

There was to be no more referrals back to the County Court for rehearing.

Well, we now have the first couple of cases in which the Court of Appeal has decided for itself.

Although the court has had a little difficulty wresting itself completely away from “error below”, it is now grappling with some of the dilemmas it has created in the past for trial judges.

The other significant change brought in with the Accident Compensation (Common Law and Benefits) Act 2000 was to extend to “serious injury” applications a policy that had been building on the statutory benefit side of the scheme for some time.

The idea is that whenever considering a claim based on a physical injury, the emotional sequelae of that injury should be ignored.

The policy found its expression in s.134AB(38)(h), which provides:

”(t)he psychological or psychiatric consequences of a physical injury are to be taken into account only for the purposes of paragraph© [the provision that applies to claims involving mental disorders as opposed to physical ones] of the definition of ‘serious injury’ and not otherwise.”

From then on applicants could not “bulk-up” their claims as they had done previously by including evidence of “emotional” sequelae like anxiety, depression, etc. to a physical injury.

Typical of cases that can’t be settled and come to trial are those where the applicant has suffered a “soft tissue” injury to their back, neck, shoulders or all three, which hasn’t resolved years after the initial injury.

By the time these cases come to trial, claimants are usually suffering from a debilitating condition called “chronic pain syndrome” that prevents them from working and otherwise enjoying life.

To the Victorian WorkCover Authority and other insurers’ doctors “chronic pain syndrome”, and its cognate expressions like, “fibromyalgia … regional pain syndrome … [and the old chestnut] functional overlay” are all code for money-grubbing malingerer syndrome.

To defendant’s medicos, if an applicant hasn’t got a physical injury you can see with the naked eye or that shows up on an x-ray, CT or MRI scan, then it simply doesn’t exist.

Of course, plaintiff’s medicos accept what their patients tell them and treat and prescribe accordingly.

In recent times, to give their clients the best chance of success lawyers for applicants had a bob each way and put such claims under both heads of entitlement.

These applications present real problems for trial judges because if they believe the applicant, and the application is based on a physical injury, then they have to structure their decision so that the required level of pain and suffering and loss of earning consequences are met without mentioning the war (however the emotional sequelae is described).

But if the claim is also put on the basis that the “chronic pain syndrome” is a mental disorder they have to somehow conjure up a justification for how a muscle sprain or strain five or more years before has turned the applicant into a mental and physical wreck today.

In an endeavour to assist trial judges in this unenviabe task, the Court of Appeal said in Barwon Spinners that the emotional consequences of a physical injury should be “disentanged” or “stripped away” from the physical ones.

The court upped the ante in Stamboulakis by saying that if the medicos didn’t perform the disentangling, then the applicant should expect to lose.

The only problem with this was that most of the medical evidence in the usual case was prepared years before anyone had heard of Barwon Spinners so there would be no medical evidence to support disentangling.

imageIn Stamboulakis, where it appears that the trial judge accepted that the applicant was in pain and that it had wrecked her life, the Court of Appeal thought otherwise and sent it back for rehearing. Justice Marcia Neave (pic) said:

“Except in cases where the effects of the injury are manifestly due to physical factors (for example paralysis caused by the severing of a plaintiff’s spinal cord) or due solely to psychological factors (in which case the definition in (a) cannot be satisfied) it will be necessary for the trial judge to undertake a careful comparison and analysis of the medical reports put in evidence, in order to determine whether the physical consequences of the injury are ‘serious’ within the definition…

“It is likely that medical experts will often be unable to define the precise contribution which organic and other factors make to the plaintiff’s pain and suffering. Despite this difficulty, that process is required.”

On August 28, the court gave judgment in Church which was its first post-Calco case.

In Church, based on surveillance evidence and her demeanour in court, the trial judge didn’t believe the applicant.

The Court of Appeal thought otherwise and found that the applicant got home because, in spite of any credibility issues, she had developed a distinct “somatoform” disorder separate from any physical injury that may have preceded it and that condition qualified as a “severe” stand-alone mental disorder.

I wonder where the VWA’s lawyers are going to go with this.

And then on September 2, the court gave judgment in Jayatilake.

In that case the appeal court rolled a trial judge’s decision refusing the claim because he said that he was bound by Stamboulakis and had to refuse it because the medical evidence did not disentangle the emotional from the physical consequences.

This led Justice Neave to say:

“In [Stambourlakis], the court allowed an appeal against a County Court judge’s decision giving the respondent leave to commence proceedings to recover damages for serious injury. The learned judge had concluded that the plaintiff’s back injury had an organic basis, without examining in detail a number of medical reports which attributed the plaintiff’s severe pain to her psychological reaction to the injury. In these circumstances, the court considered that his Honour had not fulfilled the statutory task of determining whether the plaintiff had suffered a ‘permanent serious impairment or loss of a body function’ within the definition in s 134AB(37)(a) of the Accident Compensation Act 1985…

“There are passages in my judgment in Stamboulakis which suggest that if the medical evidence does not permit the court to precisely apportion the separate contributions which physical and psychological/psychiatric factors make to a physical impairment suffered by a worker, then it is not open to the court to find that the worker has suffered a ‘permanent serious impairment or loss of a body function’. But I agree with Ashley JA’s observation that the absence of medical evidence which clearly ‘disentangles’ physical and psychological/psychiatric consequences, does not prevent a court holding that the plaintiff has suffered a serious injury. I also agree that Mr Jayatilake has satisfied the onus of showing that his back injury was serious within the statutory definition.”

It’s one thing to tell others how to perform a triple somersault with pike but it’s another to do it yourself.