We recently represented an injured worker in an Originating Motion Hearing at the County Court of Victoria.

The matter, heard by Her Honour Judge Magee, was a challenging case for the Plaintiff.

This article provides an overview of the County Court Proceedings.

The Background and Circumstances of Injury

The Plaintiff dedicated her career to caring for others, working as a personal care worker with her Employer from January 2018.

On 17 March 2021, during the course of her duties, she suffered a neck and upper back injury while lifting a mattress.

Over the years leading up to this incident, she had been performing heavy and repetitive manual tasks in caring for residents and completing home care duties.

Her WorkCover claim, describing a ‘soft tissue injury to her suprascapular (right and left) was accepted.

Sadly, the injury forced her out of work in January 2022, and she was unable to find any work thereafter.

Her role was made redundant in June that year.

The Key Issue Before the Court

The dispute centred on whether the Plaintiff could meet the ‘serious injury’ threshold under section 325 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic).

The Victorian WorkCover Authority disputed that there was a substantial organic basis for her spinal injury, questioned the reliability of her evidence, and argued that she did not meet the statutory test for serious physical or severe psychiatric injury.

– Treatment

The Plaintiff has undergone extensive conservative and specialist treatment in an attempt to manage her ongoing pain and functional limitations.

Her treatment history includes :

• Physiotherapy – ongoing weekly sessions, including hydrotherapy exercises.
• Chiropractic treatment and exercise physiology programs.
• Psychological therapy – regular telehealth attendances once or twice a month with a psychologist to address pain-related psychological impacts.
• General Practitioner care – regular consultations with her GP since the injury.
• Specialist consultations – ongoing reviews by a treating neurosurgeon, a sports and exercise physician and interventional pain proceduralist, and a pain specialist.

Pain management procedures :

CT-guided C5 nerve root cortisone injection (April 2022) – provided temporary reduction in shoulder pain.

Recommendations for ketamine infusion and pulsed radiofrequency stimulation to address neuropathic pain, though these were not ultimately undertaken.

Medications :

• Panadeine Forte (paracetamol + codeine) – taken when necessary, limited by side effects.
• Desvenlafaxine (Pristiq) – antidepressant medication, taken daily.
• Pregabalin (Lyrica) – neuropathic pain medication, taken daily (increased to twice daily at one stage).
• Nurofen – anti-inflammatory, taken multiple times daily.
• Meloxicam – non-steroidal anti-inflammatory drug, used earlier in treatment.
• Occasional paracetamol/codeine phosphate for breakthrough pain.

Despite this multidisciplinary approach, including physical therapies, medications, and targeted pain interventions, the Plaintiff reported only limited relief, and her symptoms remained a significant barrier to daily activities and her capacity for employment.

The Plaintiff’s Case

To establish the serious injury threshold, the Plaintiff relied on injuries to her spine and the nervous system.

There was clear evidence of an organic spinal injury or, at the very least, an aggravation of her cervical spondylosis and her chronic neuropathic pain was a recognised physical condition involving the nervous system.

Her treating neurosurgeon and pain specialist both identified neuropathic pain syndrome as the predominant problem.

The Defendant’s Case

The Defendant contended there was no substantial organic basis for the injury, that the Plaintiff retained significant functional capacity, and that her medication use was modest.

They relied on surveillance footage and inconsistencies in her evidence to undermine her credibility and referred to vocational assessments suggesting she was capable of alternative employment.

Judgement

Her Honour Judge Magee ultimately found against the Plaintiff.

The Court concluded that the Plaintiff was not a reliable witness, noting that the surveillance footage contrasted with her affidavits and her presentation to medical examiners.

It was held that there was no proven substantial organic basis for her spinal injury, and the Court could not disentangle her physical symptoms from psychological factors.

Furthermore, the psychiatric injury did not meet the ‘severe’ threshold. As a result, her application was dismissed.

Final Reflections

While the outcome was disappointing for the Plaintiff, the case underscores the evidentiary hurdles that injured workers face in serious injury applications, particularly in chronic pain cases.

Under Victorian law, applicants must prove a substantial organic basis for their pain symptoms to succeed in a physical injury claim.

Where there is both a physical and psychological component, courts require these to be “disentangled”, a process many judges have described as artificial and, at times, impossible.

As noted in Fokas v Staff Australia Pty Ltd, all pain is ultimately processed in the brain, making it difficult to draw a clear line between what is physical and what is psychological.

In conditions such as neuropathic pain syndromes, fibromyalgia, or complex regional pain syndrome, the absence of clear, objective markers can make it challenging to meet the statutory test.

Courts look closely at medical evidence, expecting specialists to define diagnoses, explain the reasoning behind them, and, where possible, quantify the proportion of pain attributable to organic causes.

Without such evidence, a claim may fail despite the severity of the worker’s lived experience.

Although our WorkCover lawyers advised the Plaintiff to consider appealing the decision, she ultimately chose not to pursue further litigation.

This decision highlights the often challenging realities of the legal process, and the significant emotional, psychological, and financial strain it can place on injured workers.

It also serves as a reminder that in chronic pain cases, the legal standard of “serious injury” can be as difficult to prove as the condition itself is to endure.