Establishing Serious Injury in the Presence of Non-Organic Factors

In September 2008, the Court of Appeal handed down its decision in Jayatilake v Toyota Motor Corporation Australia Ltd [2008] VSCA 167.

At first instance, the worker in this case failed in his serious injury application, primarily on the grounds he had not proven that the claimed physical injury was sufficient to account for his overall presentation and did therefore did not satisfy the "serious injury" test. "Disentanglement", namely the stripping away of psychological consequences from a claimed physical injury was the determining factor at the serious injury trial.

The Court of Appeal, in particular Ashley JA, considered how it was that a physical injury was analysed in the context of a serious injury application and how the issue of the presence of non-organic factors impacted on this analysis and the ultimate fate of a serious injury application.

In essence, this case determined:

  1. When "disentanglement" is an issue, the Court can (and must) still analyse and determine the nature and extent of the initial physical injury.
  2. Where there is a conflict of medical evidence in terms of the exact diagnosis of the initial physical injury (ie soft tissue injury v's discal injury), the nature of the physical injury can be determined by a detailed examination of the injured worker's initial presentation in terms of symptoms complained of and objective clinical findings on examination.
  3. n the context of a low back injury, Ashley JA noted the following possible "classifications" - a simple musculo-ligamentous strain, an aggravation of degenerate changes or a discal injury.
  4. Once the initial physical injury has been "classified", the consequences of that injury are to be assessed from a "serious injury" perspective, even if there are uniformly noted non-organic features or reactions such that doctors are not able to fully account for the worker's presentation in physical terms. That is to say, the presence of functional reaction does not mean the analysis of the nature of the physical injury is not undertaken. The initial physical injury must be determined and its consequences assessed, as to whether, irrespective of the non-organic reaction, the physical consequences of the injury can of themselves be described as "more than marked".

This decision shows:

The presence of non-organic reaction is not of itself a defence to a serious injury application made under subsection (a). The Court itself, can classify the nature of the initial injury and determine whether the effects of the injury satisfy the serious injury test, regardless of functional reaction. The Court will not simply accept the medical opinions proffered by medical witnesses. The Court will may have regard to the medical opinions expressed and conclusions drawn by medical witnesses, but it will also pay close regard to:

  • The worker's initial presentation on injury and the objective clinical findings made by the initial examining doctors.
  • Detailed examination of radiological investigations
  • A critical review of all of the evidence - with the worker's post injury progress and their participation in return to work and rehabilitation efforts being noted as "useful markers", when settling on a diagnosis and classification of the injury.
  • What surveillance of the injured worker shows when analysed in detail.

When it comes to the issue of diagnosis or classification of the type of injury little regard may be given to a medical opinion sought years after the original injury, where scant consideration is given by the examining doctor to the nature of the worker's initial presentation symptoms and noted objective clinical findings.

Of course it follows from the above that the clinical records of the immediate treating doctor(s) may be critical to the classification of the injury. Access to those records will be of paramount importance for the Defendant when there is a conflict on the medical evidence on the issue of diagnosis or classification.

The case also highlights the importance of examining the body of medical reports rather than the conclusion; what was recorded on examination assumed more significance than the conclusion ultimately expressed.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.