Ahmadi v Victorian WorkCover Authority

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-20-01699

NAZER AHMADI	Plaintiff
v
VICTORIAN WORKCOVER AUTHORITY	Defendant

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JUDGE:	HER HONOUR JUDGE ROBERTSON
WHERE HELD:	Melbourne
DATE OF HEARING:	22 and 23 July 2021
DATE OF JUDGMENT:	30 November 2021
CASE MAY BE CITED AS:	Ahmadi v Victorian WorkCover Authority
MEDIUM NEUTRAL CITATION:	[2021] VCC 1902

REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords:              Damages – serious injury – right lower leg – pecuniary loss – leave sought for pain and suffering and pecuniary loss
Legislation Cited:      Workplace Injury Rehabilitation and Compensation Act 2013; s325, s335
Cases Cited:              Giankos v SPC Ardmona Operations Ltd (2011) VR 120; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Richter v Driscoll (2016) 51 VR 95; Peak Engineering Pty Ltd & Anor v McKenzie [2014] VSCA 67; Shock Records Pty Ltd v Jones [2006] VSCA 180; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz (2012) 34 VR 309; Zivolic v Hella Australia Pty Ltd [2007] VSCA 142; Jayatilake v Toyota Motor Corporation Australia Ltd (2008) 20 VR 605; Smorgon Steel Tube Mills Pty Ltd v Majkic [2008] VSCA 230; Lu v Mediterranean Shoes (2000) 1 VR 511
Judgment:Leave granted to commence a common law proceeding for pain and suffering and pecuniary loss damages.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J P Brett QC Mr S Dawson	Zaparas Lawyers
For the Defendant	Mr J L Batten	IDP Lawyers

Table of Contents

Introduction

Evidence

Statutory scheme and legal principles

Mr Ahmadi’s background

Fall incident – 22 September 2016

Medical treatment and injuries

Medical Panel Opinion

Mr Ahmadi’s account of the consequences of his injuries

Treating practitioners

Dr Hamimi (general practitioner)
Dr Ali Kian Mehr (rehabilitation physician)

Plaintiff medico-legal opinions

Dr Dominic Yong (specialist occupational physician)
Dr Meena Mittal (pain physician and specialist anaesthetist)

Defendant medico-legal opinions

Associate Professor Max Esser (orthopaedic surgeon)
Dr Philip Mutton (consultant occupational physician)
Recovre vocational assessment reports

Submissions

Loss of earning capacity

Suitable employment

Is the loss of earning capacity permanent?

Conclusion

HER HONOUR:

Introduction
1On 22 September 2016, the plaintiff (“Mr Ahmadi”), whilst working as a labourer for Mr Ghulam Haider Hamzaei (“Mr Hamzaei”), at a residential property in Bentleigh, fell from a second storey scaffold system, erected around the house (“the incident”). He sustained injuries to his right lower leg and/or left shoulder/upper arm and/or consequential psychological injuries.
2By Originating Motion dated 17 April 2020, Mr Ahmadi commenced a proceeding against the defendant and sought leave pursuant to s335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) to commence proceedings for pain and suffering damages and pecuniary loss damages for each of the injuries he sustained.
3At the hearing, Mr Ahmadi did not persist with any claim for pain and suffering damages or pecuniary loss damages with respect to his left shoulder, or in respect of a permanent severe mental or behavioural disturbance or disorder. The defendant accepted that Mr Ahmadi suffered a compensable injury to his right ankle due to the incident,[1] and conceded that Mr Ahmadi has pain and suffering consequences that are “serious” as defined in paragraph (a) of the definition of “serious injury” in s325 of the Act.
[1]Transcript (“T”) 17, Lines (“L”) 22-27
4The issue in dispute is whether Mr Ahmadi can satisfy the Court that he meets the requirements to establish a “serious injury” in respect of his pecuniary loss with respect to his right ankle injury.
5Mr Ahmadi bears the onus of proof on the balance of probabilities.
6To satisfy the requisite threshold, Mr Ahmadi must demonstrate, with respect to his right ankle, in and of itself, that he has suffered a permanent loss of earning capacity of 40 per cent or more, as set out in s325(2)(f) of the Act.
7For the reasons which follow, I am satisfied that:
(a) On 22 September 2016, Mr Ahmadi suffered an injury to his right ankle.
(b) The injury suffered by Mr Ahmadi is a “serious injury”:
(i)He has suffered a loss of earning capacity of 40 per cent or more. Mr Ahmadi does not have capacity to return to or perform his pre-injury employment or to work in a labouring role or in any of the other alternative suitable employment options identified by the Recovre vocational assessment report. Mr Ahmadi has limited education and training and, prior to his injury, had worked as an unskilled labourer. Accordingly, it is unrealistic to expect that he will be able to learn all the skills required to reliably perform the roles suggested.
(ii)The pain and suffering consequences of the injury are at least “very considerable”. Mr Ahmadi has ongoing and persistent pain in his right ankle, between a 6 to 7 out of 10 at rest to a 10 out of 10 while standing or walking for periods of time. He is unable to return to his pre-injury employment or work in any labouring roles. He continues to take prescription medication daily because of his injury. His sleep is interrupted.

(c) Mr Ahmadi’s injuries will persist for the foreseeable future and consequently are permanent.
8Accordingly, pursuant to s335(2)(d) of the Act, I grant Mr Ahmadi’s application for leave to commence proceedings for both pain and suffering and pecuniary loss damages in respect of injuries he suffered because of the workplace accident.

Evidence
9Mr Ahmadi was the only witness called to give evidence. Extracts from the Court books of both Mr Ahmadi and the defendant were tendered. These comprised various affidavits, medical records, reports from treating health practitioners, medico-legal reports, vocational reports, and other material. I have had regard to all documents tendered in reaching my decision.

Statutory scheme and legal principles
10Pursuant to s335(2) of the Act, a worker may not bring proceedings for the recovery of damages in respect of an injury unless a court, other than the Magistrates’ Court, gives leave to bring proceedings. In determining whether to grant leave, the Court must be satisfied, on the balance of probabilities, that the injury is a “serious injury” as defined in s325(1)(a) of the Act.
11The term “serious” is satisfied by reference to the consequences to the worker of any impairment or loss of body function, in this instance, with respect to loss of earning capacity, when judged by comparison with other cases in the range of possible impairments or losses of body function.[2]
[2] Section 325(2)(b) of the Act
12The impairment or loss of body function is not to be held to be “serious” for the purposes of s335(2) unless the loss of earning capacity consequences are, when judged by comparison with other cases in the range of possible impairments or losses of body function, fairly described as being more than significant or marked, and as being at least very considerable.[3]
[3] Section 325(2)(c) of the Act
13In relation to loss of earning capacity, a court must not grant leave under s335(2)(d), on the basis that the worker has established the requisite loss of earning capacity, unless the worker establishes, in addition to the requirements of paragraph (c) and (d), as the case may be, that the worker has a loss of earning capacity of 40 per cent or more, measured as set out in s325(2)(f) of the Act; and the worker will, after the date of the decision or of the hearing, continue permanently to have a loss of earning capacity which will be productive of financial loss of 40 per cent or more.[4]
[4] Sections 325(2)(e)(i) and (ii) of the Act.
14Section 325(2)(f) of the Act determines the calculation of the relevant loss of earning capacity by comparing the gross income the worker is earning, or is capable of earning in “suitable employment” at the date of the hearing (“after injury earnings”), and the gross income the worker was earning or was capable of earning in suitable employment “during that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity had the injury not occurred” (“without injury earnings”).
15Suitable employment is defined in s3 of the Act to mean employment which the worker is currently suited to performing, having regard to a range of factors. The factors to be considered include: the nature of the worker's incapacity and the details provided in medical information including the certificate of capacity; the nature of the worker's pre-injury employment; the worker's age, education, skills and work experience; the worker's place of residence; any plan or document prepared as part of the worker’s return to work planning process; any occupational rehabilitation services that are being, or have been, provided to or for the worker regardless of whether the work or the employment is available, or whether the work or the employment is of a type or nature that is generally available in the employment market.
16The defendant bears the evidentiary onus to establish the existence of jobs which satisfy the characterisation of “suitable employment” and are within the plaintiff’s “after injury” capacity.[5]
[5]Giankos v SPC Ardmona Operations Ltd (2011) VR 120 at paragraph [115]
17Section 325(2)(g) further provides:
“a worker does not establish the loss of earning capacity required by paragraph (b) if the worker, taking into account the worker’s capacity for suitable employment after the injury and, where applicable, the reasonableness of the worker’s attempts to participate in rehabilitation or retraining—
(i) has; or
(ii) after rehabilitation or retraining, would have—

a capacity for any employment including alternative employment or further or additional employment which, if exercised, would result in the worker earning more than 60 per cent of gross income from personal exertion as determined in accordance with paragraph (f) had the injury not occurred.
… .”

18In Barwon Spinners & Ors v Podolak,[6] Ashley and Kaye JJA considered what was meant by the phrase “suitable employment” in s5 of the Accident Compensation Act 1958. Their honours observed (at paragraph [25]) that the concept:
“… looks to the possibility of employment after injury; hence the reference to ‘work for which the worker is currently suited’. Age, education, and experience are among the matters relevant, as also are the nature, and no doubt extent, of the worker’s incapacity and, of course, pre-injury employment. Obviously, employment is not to be regarded as ‘suitable’ if situated too far from the worker’s place of residence; and so, a specialist factory in Mildura will not ordinarily be regarded as providing ‘suitable employment’ for a worker resident in Melbourne. The expression ‘whether or not that work is available’ emphasises that the definition is looking to the capacity to work, meaning the physical capacity for employment. If the worker is of an age, is sufficiently skilled, perhaps after rehabilitation, is sufficiently close by and is able physically to do a particular job, then that is ‘suitable employment’, whether, or not, the job is currently available.”
[6](2005) 14 VR 622
19In Richter v Driscoll[7] the definition of “suitable employment” again arose for consideration in the context of an appeal from a judge’s order dismissing an originating motion seeking an order, in the nature of certiorari, to quash the opinion of a Medical Panel. Ashley and Kaye JJA considered that the question of whether “suitable employment” should be given a different meaning than that given to it in Barwon Spinners did not arise.[8] Osborn JA said (at paragraph [146]):
“Suitable employment means employment in work for which the worker is currently suited. The Act then provides for factors which must be considered in assessing whether the worker is able to return to employment in work for which the worker is currently suited. The factors listed in paragraphs (a)(i) to (iv) go to characteristics of the worker bearing on his or her employability and are not limited to physical capacities. The factors listed in paragraphs (a)(v) and (vi) go to factors related to processes intended to facilitate a return to work either by way of work plans or rehabilitation services. The significance of return to work is emphasised in the objects of the Act. The outcome of these processes may or may not have been successful, but, for present purposes, these factors are relevant in that they go to the capacity of the worker to return to work in employment in the broad sense that I have sought to explain.”
[7](2016) 51 VR 95
[8]Richter v Driscoll (ibid) at paragraph [80]
20The psychological or psychiatric consequences of a physical injury are to be taken into account only for the purposes of paragraph (c) of the definition of “serious injury”.[9]
[9]Section 325(2)(h) of the Act.
21To determine whether a claimed impairment causes a loss of earning capacity of the requisite degree, in addition to exclusion of psychological or psychiatric consequences of a physical injury, it is also necessary to exclude the contribution of other medical conditions.[10] The Court cannot consider the cumulative consequences of the injuries arising from separate incidents. It must look at each incident individually and consider only the consequences arising from the compensable injury suffered in the incident the subject of the claim.[11]
[10]Peak Engineering Pty Ltd & Anor v McKenzie [2014] VSCA 67; Shock Records Pty Ltd v Matthew James Jones [2006] VSCA 180 (“Shock Records”) at paragraph [69]
[11]AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz (2012) 34 VR 309
22Further, in accordance with s325(2)(j), the assessment of a “serious injury” must be made at the time the application is heard by the Court, unless s348 and s358 apply.
23Once satisfied that the major contributor to the loss of earning capacity is the injury relied upon by the worker as the “serious injury”, there are limits to which the trial judge is required to “disentangle” other minor causes.[12] As was identified by Redlich JA in Zivolic v Hella Australia Pty Ltd,[13] terminology such as “disentangling” is not to be found in the Act. A court might well be able to conclude, considering all the evidence, that a worker has suffered a physical impairment which satisfies the statutory test even though identification of the precise quantum of a supervening psychological overlay has not been attempted, or is in the real world impossible.[14]
[12]Shock Records (supra) at paragraphs [78]-[81] (per Bell AJA, with whom Callaway and Ashley JJA agreed)
[13][2007] VSCA 142 (“Zivolic”)
[14]Jayatilake v Toyota Motor Corporation Aust Ltd (2008) 20 VR 605
24The onus is on the plaintiff to disentangle such consequences. Whether a plaintiff will be required to unravel his or her condition and exclude consequences of another contributing cause, depends on whether the medical evidence has sufficiently identified the physical consequences of the injury to the plaintiff.[15]
[15]Zivolic (supra) at paragraph [20] (per Redlich JA. President Maxwell and Chernov JA did not express a view on whether it is necessary to disentangle the organic and psychological effects of the injury, in circumstances where the organic injury is serious).
25If there is difficulty in separating the psychological from the physical causes of the plaintiff’s pain and suffering, this may mean that a court cannot be satisfied that any loss of earning capacity, attributable only to the physically based pain and suffering consequences, satisfies the narrative test.[16] However, it may be the case that physically-based pain in a particular part of the body claimed by a plaintiff, might be able to be identified as having caused the loss of earning capacity.[17]
[16]See for example Zivolic (supra)
[17]Smorgon Steel Tube Mills Pty Ltd v Majkic [2008] VSCA 230

Mr Ahmadi’s background
26Mr Ahmadi was born in Afghanistan in January 1970[18] and is now aged fifty-one years. He is married with three children. His wife and children remain living in Afghanistan.
[18]Plaintiff’s first affidavit, sworn 29 November 2019, at paragraph [1]
27He completed only three years of primary school in Afghanistan and has little, if any, English, with poor speaking, writing, and reading skills, despite attending English classes.[19] He required the assistance of an interpreter both for the purposes of giving his evidence in this application and for attendances on medical practitioners.
[19] Plaintiff’s second affidavit, sworn 6 July 2021, at paragraph [27]
28As a child he worked in his father’s clothes shops[20] and, after his family was forced to flee to Pakistan in 1996, he assisted in his father’s carpet trading business.[21] From 2007, Mr Ahmadi traded carpets and did some farming of fruit and vegetables[22] until he fled to Australia to escape the war in 2010.
[20]Plaintiff’s first affidavit, sworn 29 November 2019, at paragraph [2]
[21]Ibid at paragraphs [3]-[4]
[22]Ibid at paragraph [4]
29After spending fifteen months in detention centres, he was released in November 2011,[23] at which time he came to live in Melbourne.[24]
[23]Ibid at paragraph [5]
[24]T26, L19
30Mr Ahmadi was permitted to work in Australia from 2013 and he initially found work as a labourer/renderer on a short-term casual basis with Sandtex Acrylic Rendering. He worked there for 20 days. Next, he worked with Super Solid Constructions from 30 May 2015 to 8 March 2016, and then with Emerald Commercial Services from 17 March 2016 to 2 May 2016.[25]
[25]Plaintiff’s first affidavit, sworn 29 November 2019, at paragraph [6]
31On 5 May 2016, Mr Ahmadi began employment as a labourer, working for Mr Hamzaei in his business, Quick & Tough Rendering.[26] His duties included taping around the edges of windows, doors and roof tiles; smoothing walls; mixing the render, and other miscellaneous tasks to assist with the rendering process.[27] His work involved a lot of reaching and lifting. From time to time, he experienced pain in his shoulders, arms and hands, including in late July/August 2016, when he consulted his general medical practitioner, Dr Hamimi, who prescribed Panadol Osteo tablets to him.[28]
[26]Ibid at paragraph [9]
[27]Ibid at paragraph [10]
[28]Ibid at paragraph [11]

Fall incident – 22 September 2016
32On 22 September 2016, while working at a residential house in Bentleigh for Mr Hamzaei, Mr Ahmadi fell from a second storey scaffold approximately 3 metres from the ground. A co-worker had stepped on the same piece of wood as Mr Ahmadi, causing the scaffold to give way.[29] Mr Ahmadi described hitting the ground heavily and instantly feeling a lot of pain coming from his right ankle.[30] He said that the co-worker may have landed on his ankle.
[29]Ibid at paragraph [12]
[30]Ibid at paragraph [13]
33There is dispute between the parties in relation to whether Mr Ahmadi also injured his left shoulder in the fall and whether he now also suffers either psychological or psychiatric consequences.

34In the months following his right ankle injury, Mr Ahmadi described “struggling to get around” on his right ankle.[31] Mr Ahmadi was assisted by Mr Hamzaei, who paid him sick pay[32] until February 2017[33] and took him food and to medical appointments.[34] Mr Ahmadi hoped he would be able to return to work. Ultimately though, Mr Hamzaei ended his employment in early 2017.[35]
[31]Ibid at paragraph [16]
[32]Ibid
[33]Plaintiff’s second affidavit, sworn 6 July 2021, at paragraph [14]
[34]Unsworn affidavit of Ghulam Hamzaei, dated 11 February 2021, at paragraph [7]
[35]Plaintiff’s first affidavit, sworn 29 November 2019, at paragraphs [16]-[17]
35Mr Ahmadi began to receive Centrelink benefits in May 2017[36] and continues to receive them.[37]
[36]Ibid at paragraph [17]
[37]Plaintiff’s second affidavit, sworn 6 July 2021, at paragraph [20]
36He has not returned to work.
37Mr Ahmadi submitted a WorkCover claim on 10 May 2017. He received weekly payments of compensation and medical and like expense payments after the incident.[38] The weekly payments ceased in late 2019. [39] He continues to have his medical expenses covered by WorkCover.[40]
[38]Plaintiff’s first affidavit, sworn 29 November 2019, at paragraph [17]
[39]Plaintiff’s second affidavit, sworn 6 July 2021, at paragraph [19]
[40]Ibid

Medical treatment and injuries
38Immediately following the incident, scans were taken of Mr Ahmadi’s right ankle at The Alfred hospital. These revealed a displaced fracture. Mr Ahmadi spent eight nights as an in-patient in hospital and underwent two operations.[41]
[41]Plaintiff’s first affidavit, sworn 29 November 2019, at paragraph [14]
39After being discharged from hospital, Mr Ahmadi was treated by Dr Hamimi at his practice in Dandenong. Dr Hamimi had treated Mr Ahmadi since 2012 for various medical conditions including, in 2012 and 2013, for depression.[42] There was no history before 22 September 2016, of prior falls or accidents involving Mr Ahmadi’s right ankle. Dr Hamimi provided Mr Ahmadi with medical certificates, prescribed medication and referred him to other practitioners.[43]
[42]T36, L29 – T37, L3
[43]Plaintiff’s first affidavit, sworn 29 November 2019, at paragraph [15]
40Mr Ahmadi commenced physiotherapy on his right ankle in December 2016.[44]
[44]Ibid at paragraph [19]
41On 12 March 2017, Mr Ahmadi was involved in an altercation with two housemates. Following the altercation, on 20 March 2017, Mr Ahmadi underwent an ultrasound scan of his left shoulder which was reported to show a full-thickness tear of his supraspinatus tendon.[45] He was referred to Professor Ton Tran, orthopaedic surgeon, at Monash Health for opinion regarding the reported tendon tear on 22 March 2017.[46]
[45]Ibid at paragraph [21]
[46]Ibid at paragraph [22]
42On 24 March 2017, Mr Ahmadi, upon referral from Dr Hamimi, also underwent an x-ray of his right ankle. The x-ray showed an ununited fracture in the base of the lateral malleolus. He was referred to the Outpatient Fracture Clinic at Monash Hospital.[47]
[47]Ibid at paragraph [23]
43A further x-ray on 6 April 2017 showed poor union of the fibular fractures with margins sclerosed and no definite callous bridging.[48]
[48]Ibid at paragraph [24]
44When Mr Ahmadi commenced regular physiotherapy with Mark Foster at Foster Physio on 19 June 2017, he was complaining of pain, stiffness and swelling in his right ankle when standing, and particularly when walking.[49] Treatment included ankle taping, use of a TENS machine, ankle strengthening, range of movement and balance exercises.[50] His left shoulder pain on a pain scale was 5 to 6 out of 10.
[49]Ibid at paragraph [25]
[50]Ibid
45On 16 February 2018, a CT scan was taken of his right ankle. This was reported to show the distal fibular fracture with “very limited healing of the fracture at the anterior quarter of the fracture line”.[51]
[51]Ibid at paragraph [30]
46In February 2018, Mr Ahmadi was also seen by Mr Ash Chehata, an orthopaedic surgeon. Mr Chehata recommended an arthroscopic procedure on Mr Ahmadi’s left shoulder. The WorkCover insurer refused to cover the costs, as it said that the injury to Mr Ahmadi’s shoulder occurred in the argument with his housemates, rather than in the course of his employment.[52]
[52]Ibid at paragraph [26]
47In late March 2018, Mr Ahmadi received a cortisone injection into his left shoulder, which relieved some of his discomfort.[53]
[53]Ibid at paragraph [31]
48On 11 February 2019, an ultrasound scan confirmed that the full-thickness tear in Mr Ahmadi’s supraspinatus was still present.[54]
[54]Ibid at paragraph [33]
49Mr Ahmadi received another ultrasound-guided cortisone injection in his left shoulder on 8 April 2019.[55]
[55]Ibid at paragraph [34]
50On 12 March 2020, further radiology was undertaken at The Alfred hospital. When compared with a scan taken on 16 February 2017, there had been further bony bridging across the lateral aspect of the distal fibular fracture. The ankle mortise was noted to remain intact. There was a slight progression of osteoarthritic changes along the lateral aspect of the ankle. A prominent enthesophyte at the distal Achilles attachment was also noted.
51On the same day, Dr Arvind Jain, consultant orthopaedic surgeon, saw Mr Ahmadi in the clinic at The Alfred hospital. He referred to the “severe and complex injury” which had been sustained by Mr Ahmadi involving his distal tibia and fibula for which he had undergone open reduction and internal fixation. Dr Jain referred to Mr Ahmadi having had x-rays of his ankle which showed a “well healed fracture on both distal tibia and fibula” but noted “features of mild post traumatic arthritis in his ankle joint”. Mr Jain’s opinion was that Mr Ahmadi’s fracture was “both clinically and radiologically solidly united”. However, he noted that Mr Ahmadi had developed pain over the medial and lateral aspect. His belief was that the pain was “mainly due to the underlying metalware”. He referred to Mr Ahmadi having “some anterior pain” but suggested that this was “quite expected after the kind of injury and surgery he had”. Based on Mr Ahmadi’s overall presentation, Mr Jain recommended that he have the metalware removed. He suggested that would improve Mr Ahmadi significantly in terms of pain. His expectation was that Mr Ahmadi would have “approximately 80 per cent improvement in his symptoms”.
52On 30 November 2020, Mr Ahmadi underwent an operation on his right ankle at The Alfred hospital. Metal plates and screw components inserted during previous operations were removed.[56]
[56]Plaintiff’s second affidavit, sworn 6 July 2021, at paragraph [5]

Medical Panel Opinion
53Pursuant to s313(4) of the Act, for the purposes of determining any “question or matter” the opinion of a Medical Panel on a medical question referred to the Panel, is to be adopted and applied by any court.
54In this instance, the medical question referred to the Panel was “what is the worker’s degree of permanent whole person impairment resulting from the accepted injury/ies as assessed in accordance with section 54 of the Act and is the impairment permanent?” In respect of Mr Ahmadi’s right ankle, the opinion was the worker had a 10 per cent whole person impairment resulting from the accepted right ankle injury when assessed in accordance with s54. The degree of impairment is permanent.
55The defendant has accepted that Mr Ahmadi has a permanent impairment to his right ankle. That is the only relevance of the Panel’s opinion.
56The defendant has not accepted that Mr Ahmadi has a permanent incapacity for work. No questions were referred to the Panel in relation to Mr Ahmadi’s work capacity. Even if questions had been referred, the Panel’s opinion was premised on an acceptance of Mr Ahmadi’s history of right ankle pain and the fact that “no further treatment is planned”. As the Medical Panel Opinion was predicated on non-union of the right ankle fracture, which was not in fact correct, it should not be adopted. Accordingly, I find that the Medical Panel’s Opinion is not determinative of Mr Ahmadi’s work capacity.

Mr Ahmadi’s account of the consequences of his injuries
57In his first affidavit, Mr Ahmadi stated that he suffers persisting pain and restriction of movement in his right ankle.[57] He said he felt depressed as a result.[58] He described the pain he experienced in his ankle as “severe” and said that the pain correlates with the fracture sites, a condition known as tibialis posterior tendinopathy, peroneal tendinopathy and anterior talocrural impingement due to post-operative stiffness.[59] The pain varied in intensity from an intense ache to a sharp and deep piercing-type pain that felt as though the surgically inserted metalware and screws were contacting with his bones and nerves.[60] On a good day the pain was described as being 3 out of 10, but on a bad day as a 7 to 8 out of 10 when he experienced a sharp nerve like pain that gave the sensation of numbness, along with pins and needles.[61]
[57]Plaintiff’s first affidavit, sworn 29 November 2019, at paragraph [37]
[58]Ibid
[59]Ibid at paragraph [40]
[60]Ibid at paragraph [42]
[61]Ibid at paragraph [43]
58Mr Ahmadi said that the pain flared up after increased activity such as walking or standing. He experienced the worst pain in his ankles when he walked on uneven ground, downstairs or down a slope.[62] He found it difficult to squat.
[62]     Ibid at paragraph [51]
59Mr Ahmadi said that he took prescription medication, including Tramadol, which he had reduced to one tablet per day due to side-effects, such as impotence, as well as warnings from his doctor about its addictive properties.[63] He also said he was taking Panadol, two to four tablets per day, as well as a tablet which helps him to sleep and blocks his depressed feelings.[64]
[63]     Ibid at paragraph [44]
[64]     Ibid
60In his second affidavit, sworn shortly before the hearing, he described having had an operation to remove the metalware and screws from his ankle. He said that he had previously thought that the persisting pain in his ankle was from the metal plates and screws contacting his bones and nerves and had hoped that their removal would take the pain away. Sadly, it had not. He said that at most, there had only been a slight improvement in the level of pain he experienced in his ankle on some days, but the ankle swelled and generally hurt more since the operation.[65] He described the pain as having increased to 6 to 7 out of 10 when at rest, to 10 out of 10 when he stood or walked for a while. He described the pain as ranging from a severe ache to being a sharp nerve like pain, with numbness and pins and needles.[66]
[65]     Plaintiff’s second affidavit, sworn 6 July 2021, at paragraph [6]
[66]     Ibid at paragraph [7]
61Mr Ahmadi described continuing to take prescription medication daily to address the pain in both his ankle and his shoulder, as well as the stress and anxiety associated with the impact the injuries have had on his life.[67] He takes Brufen tablets morning, afternoon, and evening for inflammation. These replaced the Tramadol tablets he had been taking once a day. He takes Panadol tablets, two in the morning and two at night; dosulepin (75 milligrams per day) for depression as well as nerve pain, which recently replaced the Lexapro (30 milligrams per day) he was taking, as well as Somac medication for the upset stomach he experienced from the other medications. He otherwise applied creams and heat packs to his ankles.[68]
[67]     Ibid at paragraph [15]
[68]     Ibid at paragraph [17]
62Mr Ahmadi no longer drives.[69]
[69]     Plaintiff’s first affidavit, sworn 29 November 2019, at paragraph [52]
63His right ankle injury means he is unable to do and enjoy all the things he used to do because of limitations caused by the pain.
64He cannot do physically demanding activities involving being on his feet.[70] He can no longer run or skip to stay fit[71] but, to get out of the house, he continues to go on walks to his local park despite persistent pain.[72] He cannot carry any weight or loads, as he experiences pain in his ankle requiring medication.[73]
[70]     Ibid at paragraph [45]
[71]     Ibid at paragraph [46]
[72]     Plaintiff’s second affidavit, sworn 6 July 2021, at paragraph [10]
[73]     Plaintiff’s first affidavit, sworn 29 November 2019, at paragraph [48]
65In his first affidavit, Mr Ahmadi said that the injury to his right ankle negatively affected his sleep,[74] his mobility, his social life, and his ability to perform certain household chores and enjoy recreational pursuits.[75] He said he could not sleep without difficulty on either side as he found it hard to stop his legs from resting on one another and knocking together, which heightened his pain.[76] The lack of sleep made him groggy, limited his concentration and, as a result, he tended to be forgetful.[77] He socialised less with friends and family and did not like returning phone messages from family.[78] He said he was tearful at times thinking about his seemingly bleak future.[79]
[74]     Ibid at paragraph [49]
[75]     Ibid at paragraph [41]
[76]     Ibid at paragraph [49]
[77]     Ibid at paragraph [50]
[78]     Ibid at paragraph [53]
[79]     Ibid at paragraph [55]
66In his first affidavit, with respect to his left shoulder injury, Mr Ahmadi stated that he continues to experience left shoulder pain. He described being restricted by pain from his left shoulder –
“… to a much lesser extent than my ankle, but it does restrict daily activities that require reaching, pushing, pulling and carrying. … so even the task of retrieving items from overhead cupboards poses difficulties … .”[80]
[80]     Ibid at paragraph [38]
67He also experienced difficulty and pain at the time of, and into, the next day, when showering, washing, dressing, doing up zips and buttons, and most activities requiring elevation or reaching using his shoulder.[81] He described the pain as “more of an ache”, and he said that it varied in intensity and made it difficult to perform daily household activities such as hanging clothes on a clothesline, vacuuming, mopping the floor, attending to personal hygiene, or holding a book.[82]
[81]     Ibid at paragraph [39]
[82]     Ibid at paragraph [38]
68He could not carry any weight or loads as he experienced pain in his left shoulder, as well as his ankle.[83]
[83]     Ibid at paragraph [48]
69Mr Ahmadi described the pain he experienced in his left shoulder in his second affidavit as “constant” but said that it “flares in intensity when I use it to reach, push and lift things, swing it when I walk or even brush my teeth”. He said that he thought the pain in his shoulder had continued to worsen since swearing his first affidavit.[84] He described it as 3 to 4 out of 10 at rest and 7 out of 10 during a flare-up.[85]
[84]     Plaintiff’s second affidavit, sworn 6 July 2021, at paragraph [11]
[85]     Ibid at paragraph [12]
70Mr Ahmadi said in his second affidavit that doctors had told him that there are problems in his shoulder joint which make it unstable. He may also have arthritis. It was suggested that he may require surgery.[86]
[86]     Ibid at paragraph [23]
71In his second affidavit, Mr Ahmadi said not much had changed in relation to his right ankle and left shoulder. He continued to experience pain which negatively affected him.[87] He continued to find it difficult to be on his feet for long periods and occasionally, his ankle would give way when walking.[88] His sleep remains interrupted by pain in his ankle and shoulder, such that he usually wakes three to four times each night and often must put a pillow under his feet to ease the ankle pain.[89]
[87]     Ibid at paragraph [2]
[88]     Ibid at paragraph [8]
[89]     Ibid at paragraph [9]
72Mr Ahmadi expressed the view that, even if his right ankle and left shoulder are considered separately, taking into account his physical restrictions, lack of confidence, limited concentration and need to take rest breaks, together with his very limited primary school education and poor English skills, as well as his work experience in predominantly unskilled physically demanding jobs, it is probably unrealistic that he will return to work.[90]
Treating practitioners
[90]     Ibid at paragraph [27]
Dr Hamimi (general practitioner)
73Mr Ahmadi’s treating doctor provided a series of medical reports, the most recent of which was a report dated 15 January 2021. In that report, Dr Hamimi noted the following:
(a)   there was a fall on 22 September 2016 in which Mr Ahmadi sustained a displaced fracture injury to his right ankle after falling from a 3 to 4-metre high scaffold. The displaced fracture was treated but was later complicated by non-union, requiring a revision. Mr Ahmadi had surgery at The Alfred hospital and the screw from his right ankle was removed. The ankle had healed well. The ankle pain was better now and there was no need for further treatment;
(b)   Mr Ahmadi had a left shoulder supraspinatus tear diagnosed on 20 March 2017 which was treated conservatively. Mr Ahmadi had cortisone injections into his left shoulder, but his shoulder had still not improved. He is on the waiting list at Monash Medical Centre for a shoulder operation to repair the tendon tear;
(c)   Mr Ahmadi is suffering from anxiety and depression, diagnosed before his injury.
74Dr Hamimi also considered that Mr Ahmadi is now fit for suitable employment.
Dr Ali Kian Mehr (rehabilitation physician)
75Dr Mehr produced a report dated 22 December 2020 (“the first Mehr report”). Dr Mehr noted Mr Ahmadi’s history of a right ankle distal fibular fracture, his subsequent transfer to hospital and surgery. Mr Ahmadi’s foot had been placed in a cast for three months following the original surgery and he was not fully weightbearing for a further two months. Mr Ahmadi developed a chronic pain condition in his right ankle and foot and ultimately had a further operation for removal of the hardware on 30 November 2020.
76At the time Dr Mehr wrote the report, on examination, Mr Ahmadi had a restricted range of motion in his right ankle: his dorsiflexion was restricted to 10 degrees and his plantar flexion to 20 degrees. Dorsiflexion was quite painful and there was tenderness in the anterior aspect of the ankle joint line, the Achilles tendon and dorsum of the foot in the mid-foot area. Passive range of motion was better but still painful.
77The report also noted that Mr Ahmadi told Dr Mehr he had seen Dr Patrick Byrne, orthopaedic surgeon, in relation to his shoulder. Dr Mehr recounted that according to Mr Ahmadi, Dr Byrne had recommended surgical intervention which was rejected. Dr Mehr’s subsequent report dated 8 April 2021 (“the second Mehr report”), makes clear that the reference to rejection was a rejection by the insurance company, not Mr Ahmadi.
78Dr Mehr noted the range of motion of Mr Ahmadi’s shoulder was limited, especially in abduction, which was limited to 80 degrees. External rotation was 20 degrees. There was some subacromial tenderness, and an impingement test was positive.
79The impact of Mr Ahmadi’s injuries was noted by Dr Mehr to include a normal sitting tolerance. Interrupted sleep was noted, but Dr Mehr opined this was due to the psychological impact of the pain. Mr Ahmadi’s standing tolerance was 15 minutes, and his walking tolerance was 30 minutes. He could not drive due to left shoulder and right ankle pain. Significant limitation was recorded in respect of domestic activities, and, in particular, heavy work.

80Dr Mehr opined that Mr Ahmadi has “right ankle and foot pain, which is a post operation persistent pain”. He has “evidence of accelerated osteoarthritis as well as some evidence of a slight non-union in the fibular side, a part of fibular fracture, which may cause some movement in that area”. He also has “chronic left shoulder pain and a reduced range of motion due to the supraspinatus tendon rupture and subacromial bursitis”. Dr Mehr noted that Mr Ahmadi has “significant functional effect”.
81Dr Mehr concluded that he did not believe that Mr Ahmadi has any capacity for work due to his physical limitation due to chronic pain and injury. He cannot perform pre-injury work, nor any other physical heavy work. He also cannot perform alternative jobs due to language barriers, his age and lack of suitable qualifications and experience.
82The second Mehr report was prepared in response to a letter from Mr Ahmadi’s solicitors. According to the second Mehr report, it requested “an opinion regarding the stability of his right ankle condition”. After recounting the history of Mr Ahmadi’s right ankle injury, the report noted the conservative management and the fact that Mr Ahmadi “needs a painkiller to manage his condition and he has had a range of investigations”. The report noted, on clinical examination, Mr Ahmadi’s “gait was antalgic favouring his left side”. His range of motion of the right ankle was restricted in respect of dorsiflexion to 10 degrees and plantarflexion to 20 degrees. Dorsiflexion was noted to be “quite painful for him” and Dr Mehr noted that walking inclines was “quite difficult for him”.
83Dr Mehr’s conclusion remained the same as his previous report. There was right ankle and foot chronic pain which was post-operation persistent pain. There was evidence of acceleration to arthritis and some evidence of a slight non-union in the fibular side of the ankle and a part of the fibular fracture. The condition and functional consequences were said to be stable. It will not improve for the foreseeable future and the condition will not change.
Plaintiff medico-legal opinions
Dr Dominic Yong (specialist occupational physician)
84Dr Dominic Yong prepared two reports, dated 19 January 2021 and 15 July 2021.
85In his first report dated 19 January 2021, Dr Yong took a history of Mr Ahmadi’s presenting complaint of falling to the ground from a board which was like a temporary scaffold, 3 metres in the air. A colleague landed on him and he felt pain in his right lower leg and left shoulder. Mr Ahmadi was assessed at hospital and had two operations as an inpatient. He had ongoing pain in his right ankle. He was later reviewed by his doctor and orthopaedic surgeon and it was recommended that he have the metalware in his right ankle removed. This occurred on 30 November 2020.
86Dr Yong identified Mr Ahmadi’s past medical history, including that he had no previous right ankle problems or previous worker’s compensation claims.
87He detailed Mr Ahmadi’s current symptoms and treatment, including that he was predominantly troubled by right ankle pain. Mr Ahmadi’s right ankle had reduced movement and it became swollen on the inner aspect. It occasionally gave way when he was walking.
88Reference was also made to Mr Ahmadi’s social history.
89It was noted that Mr Ahmadi was taking Panadol Osteo, four tablets daily; Tramadol 100SR tablets, one daily; and Somac, one tablet daily. He was also doing home exercises occasionally.
90Dr Yong took a history of Mr Ahmadi’s employment and noted that he was not working.
91Dr Yong recorded that Mr Ahmadi had reduced tolerance for lifting items and could not carry more than 3 to 4 kilograms. He had trouble raising his left arm or reaching forwards. He could sit for an unrestricted time. He could stand for 10 minutes and walk for 20 to 30 minutes. He does not drive. He had trouble standing on tip toe, performing a heel stand or fully squatting.
92Inspection of the right ankle revealed a 9-centimetre longitudinal scar laterally and a 10-centimetre longitudinal scar medially. There was tenderness to palpation, medially, laterally, and anteriorly. The range of movement of the right ankle was mildly reduced for dorsiflexion, inversion and eversion.
93Mr Ahmadi did not bring any radiology reports with him, but some investigation reports were provided to Dr Yong. He noted the x-ray of the right ankle dated 24 March 2017, which demonstrated the internal fixation of the distal tibial shaft and the distal fibula and adjacent lateral malleolus with plates and screws. There was an ununited fracture in the base of the lateral malleolus but no significant bony abnormality elsewhere within the ankle joint.
94An x-ray taken on 30 March 2017 noted the internal fixation was in anatomical alignment.
95The further x-ray on 16 February 2018 noted the fracture of the distal fibula at the level of the ankle joint. There was no significant bone healing identified. This was also confirmed by a CT scan of the same date.
96An MRI scan taken on 19 February 2018 identified a full-thickness tear of the posterior fibres of the supraspinatus extending 4 x 13 millimetres. There was no evidence of subdeltoid bursitis. An x-ray taken of the left shoulder on 11 February 2019 did not identify any abnormal rotator cuff calcification. An ultrasound of the left shoulder taken on 11 February 2019 noted a full-thickness tear of the anterior and mid supraspinatus, with evidence of moderate subacromial bursitis.
97Dr Yong opined that there was an organic component to Mr Ahmadi’s pain. Mr Ahmadi required ongoing treatment for his right ankle. He continues to take medication for it and engages in a light exercise program.
98Mr Ahmadi’s right ankle and left shoulder symptoms, and subsequent level of function were unlikely to change significantly.
99Mr Ahmadi told Dr Yong he was independent in his activities of daily living, yet stated he was unable to do housework due to his right ankle condition, as he had trouble with prolonged standing, walking and crouching. This impacted upon his ability to vacuum, clean bathrooms and do large amounts of shopping. Dr Yong noted that Mr Ahmadi was not doing his hobbies of running, skipping and walking.
100Mr Ahmadi’s restrictions were likely to remain permanent and he had no capacity to return to his pre-injury employment.
101In relation to alternate employment, Dr Yong noted the vocational assessment undertaken by Recovre on 1 September 2010. In respect of both the packer and the assembler roles, Dr Yong did not consider that they complied with the recommended restrictions for Mr Ahmadi. He considered that it would not be suitable for Mr Ahmadi to perform these roles. Similarly, Mr Ahmadi could not perform roles as a crossing supervisor because of his limited standing tolerance of 10 minutes. Nor could he undertake courier deliveries, because he could not drive.
102Dr Yong considered that the roles Recovre had identified as a light packer or light product assembler, or a cashier for the Afghan community, would require individual assessment.
103Overall, however, Dr Yong’s opinion was that Mr Ahmadi would not be able to perform any meaningful work on a reliable and consistent basis. Therefore, he did not have a capacity to undertake suitable employment. He considered that the functional restrictions resulting from Mr Ahmadi’s conditions were such that there was no work for which Mr Ahmadi was currently suited.
104In his supplementary report dated 15 July 2021, Dr Yong recapped upon his earlier report and analysed the reports of Dr Mittal dated 19 March 2021 and Dr Mutton dated 17 June 2021. He also considered Mr Ahmadi’s affidavit sworn 6 July 2021, and his reference to persisting symptoms in the right ankle and left shoulder.
105Next, he considered the independent medical examination of Associate Professor Esser. Associate Professor Esser identified a healed right ankle fracture with involvement of the subtalar joint, an unstable acromioclavicular joint and some sensory loss in the medial aspect of the right ankle. He considered that the roles of packer, product assembler and tester/assembler would be beyond Mr Ahmadi’s functional limitations, but he may be able to perform the packer role identified on page 11 of the Recovre vocational assessment report.
106Dr Yong concluded that the permanent functional restrictions arising from Mr Ahmadi’s right ankle condition, the unpredictable nature of the symptoms, in conjunction with the lack of any structured medical treatment, the lack of recent workforce experience in addition to an absence of any recent or current rehabilitation program, made the employment options identified unsuitable for Mr Ahmadi.
Dr Meena Mittal (pain physician and specialist anaesthetist)
107Dr Mittal prepared four reports on behalf of Mr Ahmadi for the purposes of litigation dated respectively 22 December 2020, 18 January 2021, 14 February 2021 and 19 March 2021.
108In the report dated 22 December 2020, Dr Mittal referred to the right ankle and right foot pain reported by Mr Ahmadi while at rest and upon weight bearing. On weight bearing he referred to pain in the region of 7 to 8 out of 10 being present in the anterior aspect of the ankle joint, radiating to both malleoli, and towards the posterior aspect of the ankle, particularly in the region of the Achilles tendon. Mr Ahmadi’s walking tolerance was 30 minutes, and his standing tolerance was 10 minutes. His sitting tolerance was unlimited. The nature of the pain was sharp and stabbing and occurred on movement of the ankle with stiffness in the toes. Examination of the right ankle revealed numbness associated with mild allodynia in the regions of the scars only. There was increased tenderness in the lateral and medial aspect of the ankle just above the malleolus which was consistent with the location of the metalware.
109Dr Mittal’s opinion was that the pain in Mr Ahmadi’s right ankle was “essentially mechanical in nature since it was only present on weight bearing”. There did not appear to be a neuropathic component to his pain. The pain was most likely secondary to the non-union of his fracture and may also have been contributed to by the metalware that was present in the right ankle.
110Dr Mittal also noted the left shoulder pain which was mainly present in the superior aspect of the left shoulder, aggravated by repetitive utilisation of the left upper limb. At rest the pain was 3 to 4 out of 10, but it was aggravated by any shoulder movement to 6 to 7 out of 10. The shoulder pain was generally managed with medications. Mr Ahmadi had a lifting capacity of 3 to 4 kilograms with the left upper limb. Examination of the left shoulder revealed tenderness. Forward flexion was restricted to 130 degrees and abduction was restricted to 120 degrees.
111Dr Mittal’s opinion in relation to the left shoulder pain was that it was persistent pain secondary to an injury sustained on 22 September 2016. Mr Ahmadi was said to have sustained a full-thickness supraspinatus tear with ongoing subdeltoid and subacromial bursitis.
112Dr Mittal advised against activities such as squatting, repetitive bending, heavy lifting, twisting or turning activities. She also said that Mr Ahmadi was unable to lift or carry more than 3 kilograms or engage in repetitive pushing, pulling, or lifting involving the left upper limb. Her opinion was that Mr Ahmadi was not fit to return to work in his pre-injury employment as a labourer and she did not believe that he had any capacity to engage in those activities given the nature of his two significant injuries, as well as his limited English.
113I pause at this point to note that at the time Dr Mittal prepared this report, she did not appear to be aware that Mr Ahmadi had undergone surgery in November 2020 to remove the metalware. The first reference to that surgery by Dr Mittal is in her later report dated 19 March 2021.
114On the assumption that the metalware had already been removed when Dr Mittal prepared her first report in December 2020, it is apparent that Mr Ahmadi was, at that time, both reporting pain, but also had clinical signs on examination, of persistent organic pain.
115In her report dated 18 January 2021, Dr Mittal commented upon Dr Mutton’s assessment of Mr Ahmadi’s left shoulder injury. Dr Mutton had concluded the major area of pain and disability experienced by Mr Ahmadi was in his right ankle and that his left shoulder injury or pain were “fairly minimal”. Dr Mittal did not agree with this assessment. She considered the left shoulder pain from a full-thickness supraspinatus tear requiring surgery to be significant.
116On 19 March 2021, Dr Mittal reviewed Mr Ahmadi again. She referred to numbness associated with mild allodynia in the region of the scars as well as increased tenderness over the region of the lateral malleolus on deep palpation. He had increased tenderness on the medial aspect of the left Achilles tendon on deep palpation. There was increased tenderness on palpation of the anterior ankle joint line. Again, Dr Mittal was unable to find a specific neuropathic component to the right ankle pain based on history and examination. The pain appeared to again be worse on weightbearing whereas at rest the pain was not so significant. Dr Mittal noted that the pain may have been contributed to because of the non-union of the fracture and noted the pain could not be attributed to the metalware because the metalware had been removed.
117Dr Mittal continued to note the presence of the left shoulder pain as per earlier reports.
118Dr Mittal’s overall opinion and diagnosis did not change. She still believed that Mr Ahmadi has persistent dysfunction secondary to mechanical pain which was a result of malunion of his fracture and undergoing multiple surgeries to the right ankle. The diagnosis of the left shoulder also remained the same.
Defendant medico-legal opinions
Associate Professor Max Esser (orthopaedic surgeon)
119Associate Professor Max Esser examined Mr Ahmadi on 16 June 2021. His opinion was that Mr Ahmadi’s injuries – both his right ankle and his left shoulder – were consistent with a fall from height. He noted there was no functional exaggeration or psychological psychosomatic barriers.
120He concluded the findings on examination were consistent with the fact Mr Ahmadi had sustained a fracture to his right ankle which had been internally fixed, and he appeared to have had a good result from that. He had a well-maintained range of movement of the right ankle and subtalar joint.
121He opined that Mr Ahmadi had a healed right ankle fracture with some involvement of the subtalar joint which had resulted in some difficulty walking on slopes. He also had some tenderness, discomfort, and sensory loss in the medial aspect of his right ankle involving the right medial malleolus which caused his symptoms, as well as some tenderness in the posterior aspect of the distal tibia. There was also vague discomfort in the region of the right tendo-Achilles. Additionally, Associate Professor Esser noted some discomfort in Mr Ahmadi’s left shoulder. He opined that he had signs and symptoms of acromioclavicular joint subluxation.
122In relation to prognosis, Associate Professor Esser considered that Mr Ahmadi, with appropriate treatment of his subtalar joint, would be able to return to most of his pre-injury capacity. He concluded that Mr Ahmadi was suitable for other employment, although noted some numbness in the right foot and limitations in Mr Ahmadi’s educational or retraining capacity.
123He next considered the proposed jobs listed in the vocational assessments, particularly the Recovre report dated 1 September 2020. Of the occupations referred to, he considered that Mr Ahmadi’s left shoulder injury would restrict his ability to perform a role as a packer, a product assembler, a tester/assembler, although he suggested Mr Ahmadi may have some capacity for tasks of packing machine operator, and handling and laying plastic tubs dependent upon appropriate modifications to his footwear.
Dr Philip Mutton (consultant occupational physician)
124Dr Philip Mutton prepared four reports, dated 25 July 2019, 21 August 2019, 24 July 2020 and 17 June 2021.
125In the report dated 24 July 2020, Dr Mutton noted Mr Ahmadi’s history with respect to his right ankle and left shoulder injuries and specifically that he could stand for only 5 to 10 minutes and could walk for only 20 to 30 minutes before being limited by pain. He was experiencing pain over the Achilles and lateral malleolus area near the scar, with worse pain at night and in the cold at rest. He noted that over the preceding twelve months, Mr Ahmadi had been getting more of a sharp, stabbing pain over the medial aspect of the ankle. On clinical examination, Mr Ahmadi was tender over his Achilles and laterally, just adjacent to the scar. There were scars medially and laterally. Dr Mutton noted that there had been no improvement in the preceding twelve months and Mr Ahmadi remained “troubled with pain and discomfort which limited the amount of walking and standing” that he could undertake. From a clinical viewpoint, his opinion was that the ankle appeared stable with good range of movement. He had areas of tenderness as noted in the Achilles and laterally more recently medially.
126In relation to the left shoulder, Dr Mutton noted the history of Mr Ahmadi having had two corticosteroid injections. He noted pain over the lateral shoulder and posteriorly. He had a good range of movement, but it was associated with pain. On clinical examination, the left shoulder had crepitus. Mr Ahmadi could abduct 120 degrees and forward elevate 150 degrees with good internal/external rotation. Dr Mutton noted that Mr Ahmadi continued to have some ongoing issues with his left shoulder in terms of pain and mild loss of range of movement.
127Mr Ahmadi reported his right foot as being much more of a disability than the left shoulder in relation to his work capacity.
128Dr Mutton opined that Mr Ahmadi’s “major issue is his right lower limb in terms of return-to-work assessment”. In relation to his occupational capacity, Dr Mutton noted that Mr Ahmadi suffered from complications of the fracture of the tibia and fibula and there were issues of ongoing pain and discomfort and issues of non-healing of the fibular fracture. He noted the possibility of further treatment following an appointment at the orthopaedic clinic at The Alfred hospital, and the fact that without further treatment, Mr Ahmadi would have chronic pain in his right lower limb.
129Based upon a vocational assessment undertaken on 9 April 2019, Dr Mutton considered that Mr Ahmadi did have some capacity for employment. He accepted that he could not return to his pre-injury employment. He said this was “largely in relation to the ongoing issues with the right lower limb”. He considered that Mr Ahmadi had limited capacity for ambulation, standing and walking, but could undertake sedentary employment in a seated position, such as light packing work and light product assembly work.
130In the subsequent report from Dr Mutton dated 17 June 2021, he noted the further surgery to the medial and lateral sides of Mr Ahmadi’s right lower limb undertaken on 30 November 2020 to remove the metallic hardware. He recounted Mr Ahmadi’s uncertainty as to the benefits of the surgery, and his report of similar pain with numbness and burning over the medial ankle and into the Achilles. As per his earlier reports, Mr Ahmadi could walk for 30 minutes, and stand for 10 to 15 minutes. Mr Ahmadi’s sleep was interrupted.

131On clinical examination, Dr Mutton noted the medial and lateral scarring from previous and recent surgery. There was some numbness extending over the proximal aspect of the medial scar and there was slight loss of dorsiflexion in the right ankle, but good inversion and eversion. He walked with a normal gait but was uncomfortable standing on the right lower limb.
132In relation to Mr Ahmadi’s left shoulder, Dr Mutton reported that Mr Ahmadi considered that it was deteriorating, and he was concerned about pain over the acromioclavicular joint and pain with activity. However, on clinical examination, Dr Mutton noted that the left shoulder had a good range of movement and appeared to have improved.
133As per his previous report, Dr Mutton noted Mr Ahmadi’s confirmation that the right foot was more of a barrier to employment than the left shoulder, although Mr Ahmadi’s left shoulder was still a barrier and he could lift no more than 2 kilograms, particularly above chest height. Dr Mutton noted no evidence of functional overlay, exaggeration, psychosomatic or psychological factors.
134Dr Mutton opined that Mr Ahmadi had a current capacity for full-time employment taking into account the right foot/ankle alone. He would need to work to permanent restrictions. He would be limited to largely sedentary work with no heavy lifting so as not to load up the lower limb. He would also be limited to no more than two hours’ ambulation in an eight-hour working day. Dr Mutton suggested that jobs such as a packer or assembler may be appropriate and would be consistent with his upper and lower limb difficulties.
Recovre vocational assessment reports
135A report and a supplementary report were prepared by Larissa Griffiths, physiotherapist/injury management consultant; Janette Ash, occupational therapist/injury management consultant, and Robyn Willett, vocational consultant from Recovre, dated 1 September 2020 and 16 July 2021 respectively.
136The supplementary report noted that Dr Mutton had approved the packer role provided in the Recovre vocational assessment dated 1 September 2020, but that the tester/assembler role exceeded Mr Ahmadi’s standing tolerance. Dr Mutton consequently determined that role to be unsuitable. The report also recorded that Associate Professor Esser had commented that Mr Ahmadi may be able to manage the manual handling in the packer role but had noted that the other roles required manual handling greater than his capacity.

Submissions
137In assessing Mr Ahmadi’s current physical capacity for employment, counsel on behalf of Mr Ahmadi submitted that because the defendant has conceded that Mr Ahmadi has pain and suffering consequences from the compensable injury to his right ankle that meet the requirements of paragraph (a) of the definition of “serious injury”, the only impairment which was relevant was the impairment to Mr Ahmadi’s right ankle. It was submitted that Mr Ahmadi makes no claim that the shoulder injury constitutes a “serious injury” and, consequently, it is not relevant to the inquiry to be made under s325(2)(e)(i). He further submitted that even if the left shoulder injury was relevant, and I did need to consider it, the evidence was too sparse for the Court to determine when the shoulder injury occurred.[91] He also submitted that pursuant to s325(2)(h) of the Act, the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purposes of paragraph (c) of the definition of “serious injury” and not otherwise. As there was no claim under paragraph (c) of the definition of “serious injury”, it was submitted the psychological or psychiatric consequences should not be taken into account.
[91]        T104, L30 – T105, L23
138Mr Batten, on behalf of the defendant, conceded that Mr Ahmadi has three prominent and significant comorbidities – the right ankle, the left shoulder[92] and the psychiatric condition[93] – of which only the right ankle injury has been accepted by the defendant as being injury related. It was submitted that Mr Ahmadi’s shoulder injury, and psychiatric injury, should be “stripped away” or “disentangled” from Mr Ahmadi’s right ankle injury for the purposes of assessing whether Mr Ahmadi has established the required 40 per cent loss of earning capacity.
[92]        T83, L25 – T84, L5
[93]        T95, L4-7
139The defendant further submitted that Mr Ahmadi has a residual work capacity to work as a packer or assembler, and consequently does not meet the requisite loss of earnings threshold.
140In respect of the psychiatric injury, consistent with s325(2)(h) of the Act, it was submitted that it was impermissible to take account of any pre-injury or post-injury psychiatric impairment Mr Ahmadi may have suffered. Alternatively, because any psychiatric condition was longstanding and unrelated to the incident, there was no need to consider any question of psychiatric impairment. In this respect, Mr Batten relied on the opinion expressed by Dr Mutton in his report dated 17 June 2021, that “there is no evidence of functional overlay, exaggeration or psychosomatic factors or psychological factors” involved and that Mr Ahmadi has a purely physical injury with purely physical consequences.
141In respect of the shoulder injury, it was submitted that the injury did not occur during the incident, but rather first occurred later, on 12 March 2017, during a fight or an assault on Mr Ahmadi by two housemates[94] when Mr Ahmadi was pushed.[95] In short, the submission was that the consequences of the left shoulder injury needed to be disentangled, because the shoulder injury was not caused by the incident. Alternatively, even if the left shoulder injury was relevant, or it was found to have occurred during the incident, relying on Lu v Mediterranean Shoes,[96] it was not permissible to aggregate the effects of the injuries to the separate body functions. The Court’s task, it was submitted, was to disentangle the three comorbidities by removing the consequences of the left shoulder impairment, and any pre-existing non-organic psychological/psychiatric component,[97] from the analysis of whether Mr Ahmadi meets the required 40 per cent test and has capacity for suitable employment with respect to his right ankle only.[98]
[94]     T47, L13-18
[95]     Plaintiff’s first affidavit, sworn 29 November 2019, at paragraph [20]
[96] (2000) 1 VR 511 per Chernov JA
[97]     T87, L15 – T88, L15
[98]     T96, L28-31
142With respect to the psychiatric component of the claim, the defendant suggested that this was a very large issue, and that I should find that it should be disentangled from the right ankle injury in the assessment of pecuniary loss. I accept that Mr Ahmadi has had a longstanding psychological condition. Depression was diagnosed in 2012 and he has received ongoing treatment from Dr Kavianpour since 2017. However, when I strip that back and consider the effects of the right ankle injury only, the medical evidence makes clear that the psychiatric condition is not what is impairing Mr Ahmadi’s capacity for work. Both Dr Mutton and Associate Professor Esser considered there to be no functional overlay, exaggeration, psychosomatic or psychological factors involved in Mr Ahmadi’s presentation. They concluded that Mr Ahmadi had a purely physical injury with purely physical consequences. This was consistent with Dr Mittal’s conclusion that Mr Ahmadi demonstrated clinical signs on examination of persistent organic pain.
143In relation to the shoulder injury, Mr Ahmadi was cross-examined at length about when his left shoulder was injured. It was put to him that he had not made any report of injury to his shoulder before 14 March 2017,[99] that he had fabricated the account of how the incident occurred and that he had never been told by Mr Hamzaei not to report the injury as he suggested in his affidavit. Mr Ahmadi was asked:
Q: “Mr Ahmadi, you have told doctors that your employer Mr Hamzaei came to you in hospital and told you not to report the problem, a problem with your left shoulder?---

A: Yes, Mr Hamzaei told me this.
…
Q: I put to you that you made up in May of 2017 that you injured your shoulder in this fall in September of 2016, you just fabricated that?---
A: Dr Hamimi is aware of this and I’ve been having a lot of tablets to get relief from this pain and he knows about this pain.”
[99] T53, L22-31

144It was suggested that his shoulder was not injured during the incident, but rather was hurt during an assault on him by his housemates on 12 March 2017, and that Mr Ahmadi had not been truthful about the assault.
145Mr Ahmadi was cross-examined about the circumstances of the incident on 12 March 2017. It was put to him that his description of the fight as a verbal argument was incorrect and it was in fact an assault.[100] It was further put to him that a knife was involved in the assault[101] and Mr Ahmadi was chased around;[102] Mr Ahmadi attended the hospital with bruises on his face following the incident on 12 March 2017;[103] Mr Ahmadi reported to the hospital that the shoulder injury occurred during an assault;[104] Mr Ahmadi reported an assault to the police,[105] and Mr Ahmadi told the psychologist, Dr Kavianpour, that he had been offered $10,000 to settle the dispute.[106]
[100]      T46, L29 – T47, L1
[101]      T47, L13-21
[102]      Ibid
[103]      T47, L13-18
[104]      T54, L1- 6
[105]      T47, L22-24
[106]      T50, L10-12
146While an attempt was made to discredit Mr Ahmadi, Mr Ahmadi did not dispute that an altercation occurred with his housemates on 12 March 2017. Although there seemed to be initial resistance to the description of the incident as an assault,[107] and to the suggestion that his face was bruised, and that a knife was used,[108] Mr Ahmadi agreed he was pushed[109] which, in any event, was what he had said in his affidavit.[110] Mr Ahmadi accepted that he made a complaint to the police,[111] that the Afghan community became involved, and he was offered $10,000 to settle the dispute.[112]
[107]      T46, L29 – T47, L1; T47, L13-18
[108]      T47, L19-21
[109]      T48, L3-5
[110]      Plaintiff’s first affidavit, sworn 29 November 2019, at paragraph [20]
[111]      T49, L6
[112]      T49, L16 – T50, L12
147It remains unclear to me when Mr Ahmadi’s left shoulder injury occurred. On the one hand there is evidence that neither The Alfred hospital’s notes from Mr Ahmadi’s eight-day inpatient stay following the fall, nor Dr Hamimi’s subsequent consultation notes before the consultation following the 12 March 2017 fight, disclose a complaint of shoulder pain occurring in the fall (as conceded by Mr Brett on behalf of Mr Ahmadi).[113] Further, Mr Ahmadi’s description of the argument as a “verbal argument” when he also said he was “pushed”, supports this position. However, there is also evidence that Mr Ahmadi had complained of shoulder pain before the incident and had been prescribed Panadol Osteo in respect of it. It is possible, given the nature of the fall, as he said, that there was aggravation of a pre-existing shoulder injury, or a new shoulder injury in the incident, the effects of which were obscured due to the pain he was experiencing from the injury he sustained to his right ankle during the incident. It is also possible that the shoulder pain did “flare up” because of the fight in March 2017.
[113]      T77, L28 – T78, L6
148Having had the opportunity to observe Mr Ahmadi via Zoom, I consider that notwithstanding attempts to discredit his account of events, overall, he was a truthful witness who endeavoured to be frank. In my view, he was as accurate as he could be, bearing in mind the limitations faced because of the use of an interpreter via Zoom. While I accept that there may be some doubt about whether the shoulder injury occurred during the incident, I do not consider the evidence goes far enough for me to make an adverse credit finding against Mr Ahmadi. Like the medical practitioners who examined him, I consider that he was not exaggerating his symptoms.
149Additionally, I do not need to determine the issue of causation of the shoulder injury. My task, as required by s325(2)(e)(i) of the Act, is to determine whether Mr Ahmadi’s loss of earning capacity – by reference to his right ankle only – was “40 per cent or more” measured as set out in s325(2)(f). Taken together with the other elements of the test, this requires me to be satisfied, among other things, that Mr Ahmadi’s right ankle injury, of itself, caused a loss of earning capacity to the required degree. I accept that this requires me to exclude the contribution of the other medical conditions and the psychiatric or psychological consequences of the right ankle injury as they currently exist – regardless of how caused – when considering whether Mr Ahmadi has established the required 40 per cent loss of earning capacity. If I am satisfied that the requisite loss of earning capacity has been established, as the authorities demonstrate, there is no need for me to disentangle further.
150The defendant submits that the onus was on Mr Ahmadi to demonstrate he had the requisite loss of earning capacity in respect of his right ankle injury, and that when the left shoulder injury and the non-organic component relating to the anxiety and Adjustment Disorder with Depressed Mood were “stripped away”, Mr Ahmadi does not have capacity for suitable employment. The submission was that he has failed to discharge his onus.

Loss of earning capacity
151To satisfy the statutory formula, the measure of the claimed loss of earning capacity requires a comparison of two things:
(a)   the gross income the worker is earning, or is capable of earning, in suitable employment at the date of the hearing (“after injury earnings”); and
(b)   the gross income that the worker was earning, or was capable of earning, in suitable employment “during that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity had the injury not occurred” (“without injury earnings”).[114]
[114] Section 325(2)(f) of the Act
152The first step requires a determination of what were the plaintiff’s “without injury earnings”. Mr Ahmadi, in his Worker’s Injury Claim Form, disclosed his usual pre-tax weekly earnings were $1,200 per week. This equates to gross annual earnings of $62,400.[115] There may have been incremental pay rises and some increase to the level of “without injury earnings” in the three-year period after the injury, or there may have been reductions in earnings. I do not need to explore those further; however, because helpfully, during submissions, the parties agreed that the amount of Mr Ahmadi’s “without injury earnings” were $50,000 gross annual earnings.[116]
[115]      Exhibit P1
[116]      T101, L24 – T103, L12
153Gross annual earnings of $50,000 means that the relevant 60 per cent figure is $577 per week.
154Accordingly, if the plaintiff “with injury” has a capacity to earn more than $577 per week, then the claim for pecuniary loss for a serious injury must fail. The resolution of this issue requires an assessment of what is the plaintiff’s current physical capacity for suitable employment (including how many hours per week, if any, he can currently work), and the relevant rate of pay for any residual capacity for “suitable employment”.

Suitable employment
155Counsel for Mr Ahmadi submitted that the concept of “suitable employment” is very specific. He relied on Richter v Driscoll,[117] in support of his submission that determination of the “current work capacity” of Mr Ahmadi required consideration beyond his physical capacity for the tasks required in a particular role. It was contended that regard must be had to Mr Ahmadi’s personal circumstances, including their education and employment history, age, location and the length of any period of time out of the workforce. Counsel for Mr Ahmadi submitted that Mr Ahmadi has no capacity for suitable employment.
[117]Supra
156Counsel for the defendant, on the other hand, accepted that Mr Ahmadi has been unable to return to his pre-injury employment, but submitted that Mr Ahmadi had a residual capacity for alternative suitable employment.
157The defendant relied upon jobs said to be “suitable employment” for Mr Ahmadi, as set out in vocational assessment reports prepared on behalf of Recovre dated 1 September 2020 and 16 July 2021 by Ms Larissa Griffiths, physiotherapist/injury management consultant, Ms Jeanette Ash, occupational therapist/injury management consultant, and Robyn Willett, vocational consultant, (“Recovre reports”). Specifically, the most recent of the Recovre reports suggests that Mr Ahmadi would be suitable for roles as a packer and as an assembler.[118]
[118] T113, L13-18
158The defendant submitted that even accepting a graduated return to work, on a permanent basis, each of the jobs which it was said Mr Ahmadi was able to perform, working light duties, earned over $600 gross per week and, therefore, exceeded the 60 per cent threshold of $577 per week. Accordingly, the submission was that Mr Ahmadi could not discharge the onus he bears to establish that he (at the date of the hearing) has suffered a 40 per cent loss of earning capacity, which will continue permanently to be productive of financial loss of 40 per cent or more.
159The defendant relied on Associate Professor Esser’s opinion that Mr Ahmadi’s ankle had been fractured but that it had healed. He noted that he may experience some difficulty walking on slopes, but that Mr Ahmadi did not report any significant difficulty on examination and there was a full range of movement with respect to his right ankle. The difficulties observed by Associate Professor Esser, it was submitted, were in relation to Mr Ahmadi’s left shoulder. Mr Batten submitted that Associate Professor Esser’s opinion was that Mr Ahmadi has a capacity for work.
160The defendant also relied upon the various reports from Dr Mutton, occupational physician, who also concluded that Mr Ahmadi had a capacity for work.
161In relation to Dr Yong’s reports, Mr Batten suggested that the bulk of the restrictions placed on Mr Ahmadi by Dr Yong – matters such as avoiding repeated above shoulder height tasks, repeated firm pushing, pulling with the left hand, lifting – related to the left shoulder and consequently were required to be disregarded.
162Further, the defendant relied upon a report of Associate Professor Ivor Jones that, from a psychiatric perspective, there was no incapacity. Mr Batten referred to matters such as Mr Ahmadi’s inability to socialise, poor mood, loss of enjoyment of life, sense of guilt, withdrawal from others and his poor relationship with his wife as being suggestive that the real reason Mr Ahmadi had not returned to work was due to a lack of motivation arising out of his longstanding psychological problems as opposed to any incapacity due to his right ankle impairment. Further, even if the psychological problems were a secondary component to the physical injury, Mr Ahmadi had not disentangled them and had, therefore, not discharged his onus in this regard.
163In arriving at a conclusion as to whether Mr Ahmadi has discharged his onus of establishing that he has suffered a permanent loss of earning capacity of 40 per cent or more, various matters are relevant. I take them into account.
164First, as I noted above, I had the opportunity to observe Mr Ahmadi give his evidence via Zoom. He was at times clearly uncomfortable even sitting. He appeared to be in pain.

165Secondly, Mr Ahmadi’s own accounts of pain demonstrate that he has persistent pain in his right ankle.[119] He described the pain as having increased to 6 to 7 out of 10 when at rest to even 10 out of 10 when he stands or walks for a while, and it ranges from a severe ache to a sharp nerve-like pain with numbness and pins and needles.[120] Pain at a level of 10 out of 10 would have an inevitable impact on Mr Ahmadi’s ability to perform any type of employment.
[119]      Plaintiff’s second affidavit, sworn 6 July 2021, at paragraph [6]
[120]      Ibid at paragraph [7]
166It was put to Mr Ahmadi in cross-examination that one of the reasons he had not returned to work was because he had a lot of issues and pain from his shoulder. He agreed that he could not return to work, but said it was because of both his foot and his shoulder.[121] He did not seek to exaggerate the pain caused by his right ankle injury nor downplay his shoulder injury, but fairly identified that both caused him pain and incapacity for work.
[121]      T39, L27 – T40, L1; T41, L24-29; T42, L29 – T43, L8
167Thirdly, Mr Ahmadi described continuing to take prescription medication daily to address the pain in both his ankle and his shoulder, as well as the stress and anxiety associated with the impact that the injuries have had on his life.[122] He takes Brufen tablets in the morning, afternoon, and evening for inflammation, which replaced the Tramadol tablets he had been taking once a day. He takes Panadol tablets, two in the morning and two at night.
[122]      Plaintiff’s second affidavit, sworn 6 July 2021, at paragraph [15]
168Fourthly, the medical experts all accept that Mr Ahmadi has ongoing issues of persistent organic right ankle and foot pain. It was submitted for the defendant that because Mr Ahmadi did not call Dr Jain, I should draw an adverse inference against him, that any evidence Dr Jain might have given to the effect that the right ankle fracture had clinically and radiologically, solidly united, would not have assisted Mr Ahmadi. In my view, it is unnecessary for me to draw that inference or make a specific finding about whether the right ankle fracture had clinically and radiologically stabilised in March 2020 because the pain persists now. While Dr Jain had an expectation when he saw Mr Ahmadi on 12 March 2020, that the pain would subside upon removal of the metalware, based on the opinions of Dr Mittal, Dr Mehr, Dr Mutton and Associate Professor Esser and subsequent examinations of Mr Ahmadi’s right ankle after removal of the metalware, unfortunately the pain did not subside. Consistent with Dr Mutton’s observations, the right ankle pain is now at least as significant, and possibly more significant, than Mr Ahmadi’s shoulder pain. It emanates from complications of the right ankle distal fibula fracture because of the “severe and complex” right ankle injury as described by Mr Jain.
169It is not necessary that I identify the precise cause of the pain, but for completeness, I note the evidence of accelerated osteoarthritis referred to by Dr Mehr; the “prominent enthesophyte at the distal Achilles attachment” referred to in the 12 March 2020 radiography report; the reference to “anterior pain” in Dr Jain’s letter dated 12 March 2020; the description of “tenderness of Mr Ahmadi’s left Achilles tendon” in Dr Mittal’s report; “pain with numbness and burning still remaining over the medial ankle and into the Achilles” referred to by Dr Mutton, and some tenderness, discomfort and sensory loss in the medial aspect of Mr Ahmadi’s right ankle involving the right medial malleolus referred to by Associate Professor Esser.
170Fifthly, while there were competing medical views about Mr Ahmadi’s capacity for suitable employment, all medical experts agreed that Mr Ahmadi could not return to his pre-injury employment or work in a labouring role again. That is a significant pecuniary loss consequence.
171Dr Mehr did not believe that Mr Ahmadi has any capacity for work. Similarly, Dr Yong concluded that the functional restrictions resulting from Mr Ahmadi’s conditions, when considered in conjunction with the suitable employment criteria, are such that there is no work for which he is currently suited, which could be performed on a reliable and consistent basis.
172On the other hand, Dr Mutton, while noting that Mr Ahmadi could not return to his pre-injury employment, largely because of “the ongoing issues with the right lower limb,” and his limited capacity for standing and walking, considered that Mr Ahmadi could undertake sedentary employment in a seated position.
173Associate Professor Esser, likewise thought that with appropriate treatment of his subtalar joint, Mr Ahmadi would be able to return to most of his pre-injury capacity. He concluded that dependent upon appropriate modifications to his footwear, Mr Ahmadi was suitable for other employment and may have some capacity for the tasks performed by a packing machine operator, and for handling and laying plastic tubs.
174I accept that, based purely on the physical injuries which Mr Ahmadi has, theoretically, he may have some capacity to perform a role as packer such as that referred to in the Recovre report. However, I must also be satisfied that Mr Ahmadi is “capable of earning” in suitable employment and will not have a loss of earning capacity which will be productive of financial loss of 40 per cent or more. Further, that he will ever be able to perform any role reliably and continuously.[123]
[123]      Richter v Driscoll (supra)
175On the assumption that Mr Ahmadi is physically able to perform a job such as packer, in addition to the persistent pain he lives with, he has other limitations which, in my view, mean it is inherently unlikely that he will ever be able to perform any role reliably and continuously.
176Mr Ahmadi is fifty-one years old, with very limited education and training. He had only three years’ formal education in Afghanistan.
177Despite attempts to learn English, he can barely speak, read, or write English. At various times in his evidence, Mr Ahmadi said, through the assistance of an interpreter, that his “mind is not functioning well so it’s very dim and not learning much”.[124] Why that was the case was unclear, but it is the unfortunate position in which Mr Ahmadi finds himself.
[124]      T70, L24-26
178Mr Ahmadi has no vocational qualifications and previously worked as an unskilled labourer for members of the Afghan community. Although he had only been working in his role with Mr Hamzaei for a short time when the incident occurred, Mr Ahmadi’s incapacity was the direct result of the incident which occurred. It has had a direct impact upon his earning capacity. He can no longer do manual work or employment requiring long periods of walking or standing. Even sitting seems difficult at times. He probably cannot work in a shop and, by reason of his ongoing right ankle condition, Mr Ahmadi is suited only for very limited types of work.
179Of the roles identified by the vocational assessment reports, including packer, product tester/assembler – wage and labour market information, and production clerk (labeller), in my view, Mr Ahmadi would be unable to do the product tester/assembler – wage and labour market information, and production clerk (labeller) roles because they require either too much standing and walking, or use of a computer, which he said he had never been trained to operate and did not know about. Additionally, he has never worked in a factory. Taking into account his right ankle injury only, I consider it unrealistic to expect that he would be able to learn all the various skills required to perform the roles suggested, given his other significant functional limitations.
180Mr Ahmadi has made attempts to secure alternate employment. He said in cross-examination that in 2018 and 2019, he had been looking for a job with the help of IPAR, but there were no suitable roles available for him. He rejected the suggestion that he was not genuinely seeking to obtain the jobs suggested by IPAR. He pointed to his injuries as the reason why he had been unable to obtain employment. He said in cross-examination, “I cannot go back to work now because of my right foot and also left shoulder as well, and especially during the cold weather it’s really bad for me”. He said he was unable to perform the heavy duties he used to perform due to both “my shoulder and my leg”.[125]
[125]      T41, L24 – T43, L5
181Finally, the defendant suggested that Mr Ahmadi had capacity for work and that Mr Ahmadi is not genuinely motivated to obtain a job. It relied on the evidence of Dr Hamimi, particularly medical records of 1 February 2017 to the effect that Mr Ahmadi was contemplating a return to work.[126]
[126]      T89-90
182Mr Ahmadi’s evidence was that he could not understand English, he was unable to read the notes Dr Hamimi wrote and that he did not have a discussion with Dr Hamimi about returning to work. His evidence was that Dr Hamimi told him he was unable to go to work and he gave him a medical certificate.
183Mr Ahmadi accepted that a sitting job might be suitable employment if it involved light duties. He said that he was “trying to get a suitable job”. He said he had “been to few Afghan shops around and no one can employ me because of my medical condition”. He referred to the problem with his foot and with his ankle and said “also because of my language issues. No one would employ me”.[127] I consider this to be evidence of bona fide attempts by Mr Ahmadi to obtain employment.
[127]      T30, L13-26
184Having considered the defendant’s submissions carefully, together with my review of the transcript and other evidence, I have reached the conclusion that Mr Ahmadi is not capable of earning in suitable employment and has consequently suffered a loss of earning capacity of 40 per cent or more by reference to his right ankle only.

Is the loss of earning capacity permanent?
185If the requirements of s325(2)(e)(i) are met, which I find that they are, I am next required to consider whether Mr Ahmadi will continue permanently to have a loss of earning capacity which will be productive of financial loss of 40 per cent or more.
186The Medical Panel Opinion was that Mr Ahmadi’s right ankle impairment was permanent. Although not determinative of itself, Dr Mehr also concluded that he did not believe Mr Ahmadi has any capacity for work due to his physical limitation due to chronic pain and injury. He cannot do pre-injury work or any other physical heavy work.
187While other medical experts considered that Mr Ahmadi’s injuries were not permanent, on balance I accept that they will last at least for the foreseeable future. In that sense, I find that they are permanent.

Conclusion
188Accordingly, leave shall be granted to Mr Ahmadi to commence a proceeding for pain and suffering damages and for loss of earning capacity damages with respect to his right ankle.
189I will hear argument with respect to costs.

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[2021] VCC 1902

30 November 2021