Ahmadizadeh v Danzante Pty Ltd and Ahmadizadeh v VB Sculli Pty Ltd

[2020] VCC 1284

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CI-20-00376
CI-20-00370

KIYAN AHMADIZADEH	Plaintiff
v
DANZANTE PTY LTD	Defendant

And

KIYAN AHMADIZADEH	Plaintiff
v
VB SCULLI PTY LTD	Defendant

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JUDGE:	Judge Pillay
WHERE HELD:	Melbourne
DATE OF HEARING:	19 August 2020
DATE OF JUDGMENT:	21 August 2020 (revised as of 24 August 2020)
CASE MAY BE CITED AS:	Ahmadizadeh v Danzante Pty Ltd & Ahmadizadeh v VB Sculli Pty Ltd
MEDIUM NEUTRAL CITATION:	[2020] VCC 1284

REASONS FOR JUDGMENT
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Subject:  Serious Injury Application

Catchwords:             Serious injury application - back injury - loss of earnings – pain and suffering – credit – whether consequences serious

Legislation Cited:     Workplace Injury Rehabilitation and Compensation Act 2013
Judgment:                Application granted.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Mighell QC, with Mr G Smith	Shine Lawyers
For the Defendant – Danzante Pty Ltd	Mr B R McKenzie	IDP Lawyers

For the Defendant – VB Sculli Pty Ltd Mr W R Middleton QC, with Mr S Scully Thomson Geer

HIS HONOUR:

1       Mr Ahmadizadeh is a Kurdish refugee from Iran. He arrived in Australia by boat from Indonesia claiming asylum in about 2011. Asylum was granted in 2012 and thereafter he made his way to Melbourne. Relevantly, he began employment with the Defendant Danzante Pty Ltd (known as “Barkers”) in September 2015. Barkers is the name of a fruit and vegetable company that operates warehousing and coordinates deliveries through the Epping fresh fruit and vegetable hub. Mr Ahmadizadeh was employed there as a labourer. He claims that he suffered injury to his lower back while working at Barkers. As a result he alleges that he has sustained a serious injury as to both pain and suffering consequences and loss of earnings consequences. His claim was brought solely as a subparagraph (a) physical injury claim. Initially his serious injury application began on the basis that he had sustained injury during the course of employment with another employer, called VB Sculli (“Sculli”), where he was employed for 6 weeks after leaving Barkers. That claim was discontinued during the course of the application before the court.

2       The Defendant, Barkers, denied that injury to the Plaintiff had been caused during his employment with them between September 2015 and when he left on 6 October 2016. They next argued that even if injury could be proved it was of a temporary nature and its effects had long since passed. In essence, they argued there were no long-term consequences and even if there were, they were of such a minor nature that they did not satisfy the serious injury test either for pain and suffering or loss of earnings consequences. Barkers put in issue the Plaintiff’s credit and his believability.

BRIEF FACTS

3       The facts in this case can be briefly stated. The Plaintiff was released from immigration detention and came to Melbourne in around 2012. Prior to that he gave a history that while in Iran he had had no formal schooling and only understood basic reading and writing as taught to him by his father. Once he arrived in Melbourne he did some farm work, painting and pushing trolleys. He gave evidence in cross-examination that only some of this work was  paid and he found this work dispiriting and disappointing. He then got a permanent job in a cabinetmaking facility where he said he worked for about a year. He was pressed about this in cross-examination as his tax records, as shown by the Barkers court book, showed during the years prior to 2015 only Centrelink income. The Plaintiff was unable to explain why there were no income records from this cabinetmaking job.

4       He gave evidence that he began working with Barkers in about October 2014. That fact was contested. The Defendant produced a group certificate indicating that work began in September 2015. There was no further evidence produced by the Defendant to support the assertion that there was not work before October 2014. Not much, in my opinion, turns on this discrepancy. The reason for this will become apparent.

5       The work the Plaintiff was doing he described in the following terms:

“I was working picking and packing boxes of fruit. This was very heavy and physically demanding work. I was lifting, manoeuvring and manhandling hundreds of boxes of fruit and manhandling pallets. A lot of the lifting was done at ground level. I had to regularly manhandle pallets which weighed in excess of 50 kg.”[1]

[1]Plaintiff’s Court Book (“PCB”) 33, Affidavit of Kiyan Ahmadizadeh sworn 25 September 2019 at paragraph [9]

6       Broadly the first record of the Plaintiff reporting back pain was to his treating doctor, Dr Yaraghi, on 6 September 2016.[2]  That showed a positive slump test and radicular pain. A CT scan was ordered and Panadeine Forte prescribed. On 8 September 2016, the Plaintiff returned to Dr Yaraghi and was advised to start wearing a back brace. He gave evidence that he continued to do so. He gave evidence that he was struggling at work with his back pain and began to contemplate working somewhere else. He had contact with Ms Kim Conway. She had worked with the Plaintiff at Barkers but had then moved to working for Sculli. The Plaintiff gave evidence that he wanted to move to Sculli as it was likely to be higher paid, but also less heavy work and of less volume. He gave evidence that he still had back pain and wore a brace while he was working at Sculli. His last day of work with Barkers was 6 October 2016 and he commenced on 7 October 2016 with Sculli. He ceased employment with Sculli on 17 November 2016. He has not worked since this time.

[2]Defendant’s Court Book – VB Sculli (“DCBV”) 85

7       Leaving the chronology there I will now turn to address the first of the issues between the parties, that of causation.

CAUSATION

8       The Defendant contended that the Plaintiff did not sustain an injury to his lumbar spine in the course of his employment with Barkers.

9       Having considered all the material and listened to the Plaintiff’s evidence carefully I must reject that contention. I do so for the following reasons:

a)    First, the work duties which are set out above are not contradicted by any evidence that the Defendant has produced. It speaks of heavy repetitive and physically demanding work. It involves reaching, lifting, bending and twisting. It is consistent with the complaints that the Plaintiff made regarding his injury. There was a dispute as to when the Plaintiff had started work with Barkers, but in my opinion this is immaterial. Even if the Plaintiff only began in September 2015, prior to the onset of his complaints to his treating Dr Yaraghi, there was still one year of this heavy repetitive and physically demanding work.

b)    Secondly, the reporting to the treating doctor is contemporaneous with his work duties at Barkers. These reports occur on 6 September 2016 and again on 8 September 2016.[3]  It is significant that the reporting of the symptoms is consistent with the doctor’s assessment. For example the treating doctor performed a slump test which was positive. This correlates well with the reporting of symptoms of the Plaintiff. The severity of the reporting also led the doctor to prescribe Panadeine Forte, a strong analgesic medication and also to be so concerned as to request a CT scan. The CT scan was performed and even though the treating doctor recorded it being unremarkable, it is to be noted that muscle spasm was found and the treating doctor recommended the wearing of a brace. The Defendant did note some inconsistency in the Plaintiff’s reporting of the injury. Particularly, the Defendant pointed to the report of Ms Fleischer,[4]  recording one year of back pain when she saw the Plaintiff on in June 2017. In my opinion, this is not a significant discrepancy given that the first report of injury was in fact in September 2016. In any event this was during the course of the Plaintiff’s employment with Barkers and would in fact support the overall allegation that the injury occurred throughout the course of that employment.

[3]DCBV 85, Patient Medical History

[4]PCB 54, Report of Dr Fleisher dated 9 August 2017

c)    Thirdly, the radiology is consistent with the initial complaints. The CT scan at Plaintiff’s court book 49 shows mild broad-based disc bulging.[5] This is consistent with the more sensitive MRI scanning done on 16 June 2017.[6] Mr Simm noted that the MRI showed a mild deformation of the left L4 nerve root.[7] His unchallenged opinion was that the MRI showed simply that which was present in the earlier CT scanning.[8] He did not believe it showed an aggravation, which is said by Barkers to have occurred during the employment with Sculli.

[5]PCB 49, Radiologist’s Report dated 6 September 2016

[6]PCB 51, eReports MRI report of 19 June 2017

[7]DCBV 50, Medical Report of Mr Rodney Simm, dated 20 March 2020

[8]PCB 49

d)    Fourthly, the work at Sculli was only for a short period, some five to six weeks. This is in comparison to the work which had occurred for at least one year at Barkers. The Defendant sought to argue that when the Plaintiff did come to make his WorkCover claim he in fact only nominated Sculli.[9] However it must be noted that the claim form was completed, as the Plaintiff said in cross examination, by the Plaintiff’s lawyer and it was that lawyer who nominated not only Sculli but indicated that the injury had occurred throughout the course of employment. I consider that not to be strong evidence one way or the other as to causation but rather a legal judgement as to how the lawyer considered the claim was best progressed. That is by nominating the last employer in time. Barkers also suggested that if the Plaintiff was in fact injured in the course of employment with them then he would not go to a similar job with Sculli. I reject this argument for the following reasons. The Plaintiff has deposed, and gave viva voce evidence, that he went to Sculli as he hoped it would have better conditions. He had been working with pain and a back brace while at Barkers but it is entirely consistent with his evidence that he would have sought a less strenuous job, such as that which he thought he was getting by moving to Sculli. That he did not get those conditions at Sculli should not be held against him. He made the effort to cope with his condition as best he could but when the job at Sculli was too much for him he then left. Rather than a sign that no injury occurred at Barkers it emphasises the seriousness of the condition that he suffered there, that he could not cope even with a change of employer.

e)    The medical opinion seems overwhelmingly to favour Barkers as the source of the Plaintiff’s injury. This can be seen from the reports of Dr Mutton,[10]  which note minimal contribution from employment at Sculli, the report of Mr Simm,[11]  who considers the employment at Barkers to be the significant contributor. I will deal with the opinion of Mr Kossmann later.

[9] PCB 6, WorkCover claim form lodged 21 September 2017

[10]DCBV 44, Report of Dr Mutton, dated 31 January 2019. See also DCBV 57, Report of Dr Mutton, dated 30 June 2020

[11]DCBV 51, Medical Report of Mr Rodney Simm, dated 20 March 2020

10      The reports of Mr Rowe and Dr D’Urso do not make definitive comments. The only real support that the Defendant has for its position is that contained in the report of Dr Yaraghi who expressed an opinion offered to the accident compensation conciliation service on 15 December 2017.[12] I consider that opinion to be an outlier. Further, it is the opinion of a treating doctor and not a specialist orthopaedic surgeon or neurosurgeon. Balanced against the weight of the other opinion I would not prefer it. It was said by the Defendant that little weight should be given to the report of Dr Kossmann because there was no comment on the radiology and he was inconsistent.[13] On page 144 he stated “on the balance of probabilities Mr Ahmadizadeh would have been suffering from the injuries which he suffered during his employment with Barkers…”[14]  That finding is almost directly contradicted by his subsequent report.[15]  The reason for this inconsistency is unexplained and I would accept the Defendant’s submission that Mr Kossmann’s opinion carries little weight on this question. However, overall the weight of the opinion can clearly be seen to lie in favour of the cause of the Plaintiff’s injury being his employment by Barkers.

[12]PCB 55, Report of Dr Yaraghi, dated 15 December 2017

[13]PCB 136, Report of Dr Kossmann dated 16 April 2020. See also PCB 166, Report of Dr Kossmann, dated 6 August 2020

[14]PCB 144, at paragraph [10]

[15]PCB 168, at paragraph [4]

11      For all the above reasons I find that the Plaintiff has sustained injury in the course of his employment with Barkers. I find that that injury is a lumbar soft tissue injury with very mild disc bulging at L3/L4 and L4/L5 and chronic spinal pain syndrome.[16]

[16]Simm at DCB 53, D’Urso at PCB 114.

CONSEQUENCES

12      Turning then to the consequences of the physical injury sustained by the Plaintiff. The Defendant raised three matters in consideration of this topic. First, there was a claim that the Plaintiff’s credit was in issue, with that was allied the notion that there was a non-organic presentation of the symptoms that he presented with. Third, it was suggested that there were no ongoing consequences associated with any injury found, and particularly there were no real physical consequences for the Plaintiff after mid-2018, when he underwent treatment through the Alfred Hospital and Caulfield rehabilitation.

13      Dealing firstly with the issue of credit, it was suggested that the Plaintiff gave evidence which was inconsistent and exaggerated. It was suggested these matters were so significant that it should lead to a rejection of the Plaintiff’s evidence as to the consequences he suffers from as a result of the Barkers injury. The inconsistencies were said to arise and be shown by the following matters. The Plaintiff had given a history that after his injury he gambled and lost some $100,000. It was suggested that with his earnings since 2015, he had barely made $100,000 to lose. The Plaintiff’s evidence on this point was that he had not only exhausted any savings, but had borrowed both from family and also on credit cards. Of course losses from gambling are often those losses that are gained initially but then gambled away. While it could be said that $100,000 for a man of limited earnings is an enormous amount it is not entirely inconsistent with the sums of money that he was earning or the fact that he could borrow both from family and credit sources. The Defendant also mounted an attack that suggested the Plaintiff could only have earned sums of this level to gamble away by having another job since 2016. There is no evidence to support such an assertion and I deal with it no further. Second, surveillance video was shown of the Plaintiff on 2 occasions. The first from 9 October 2018 and the second of 9 February 2019 being exhibits D1 and D2. In my opinion, after viewing the videos, they do not show any inconsistency in the Plaintiff’s presentation. In fact they are entirely consistent with the Plaintiff’s evidence particularly as to his level of activity as disclosed to the Caulfield Hospital Rehabilitation centre in mid 2018.[17] 

[17]PCB 61, Initial Pain Multidisciplinary Assessment Report, dated 22 August 2018

14      It was suggested that the Plaintiff had a condition which had morphed into a non-organic presentation. Evidence of this was said to be the opinion of Dr Yaraghi, who opined that there was multifactorial reasons for the ongoing pain,[18] Mr D’Urso, who commented of functional components,[19] and Mr Mutton.[20]  Dealing with these matters in turn I note that Dr Yaraghi was a treating doctor and I have not accepted her opinion as to causation, as set out above. Mr D’Urso’s opinion seems reasonably isolated when one considers that Dr Mutton’s opinion is expressed simply as that the video surveillance shows the Plaintiff undertaking recreational activities and daily activities without significant lower back or lower limb dysfunction.[21] That by itself is not a comment of functional overlay or abnormal illness behaviour. Rather as I found above the video surveillance is simply consistent with the Plaintiff’s reporting to doctors at the time. In those circumstances I do not accept Mr D’Urso’s opinion.

[18]Ibid, Note 11

[19]PCB 114, Report of Dr D’Urso dated 18 October 2019, at paragraph [7]

[20]DCBV 80, Report of Dr Mutton dated 17 July 2020.

[21]Ibid, at paragraph [3]

15      This view is fortified by my assessment of the Plaintiff.  In the witness box he attempted to give answers openly and honestly.  He struggled with English at times.  He did his very best, resorting to the interpreter only when absolutely necessary.  In recounting his experiences of being treated dishonestly and being discriminated against at work he broke down. He recovered and gave evidence again. He made admissions in cross-examination when documents were put to him. Some of those were against interest, as in the starting date of his employment. He made those admissions freely and without prompting. Overall I formed the impression that he was an impressive witness. To support this assessment of him overall there are other factors as well. First, he obviously has a strong work ethic. This is made out by the fact that after moving to Melbourne he obtained work. He was a good worker by all accounts and worked very hard while with Barkers. Even though he was in pain while with Barkers he obtained a back brace and continued to work with pain. When that was too much for him, rather than go off work, he attempted to find other work which was more suitable. This was work at Sculli which he hoped would be more suitable, but which was undoubtedly still physical labour and could be expected to cause some discomfort. Still he worked on. Even when the work at Sculli did not work out he attempted to return to work as a painter. This limited effort was not met with success either. Undeterred he then commenced a security guard course, which he completed. He realised during that course that the security guard work was difficult and so he did not persist with it further. He did however undertake both computer courses and photography courses subsequently. He has endeavoured to improve his English, as Mr Mutton has commented upon, and the effort he has put in has clearly borne fruit given the fact that he was able to give evidence on his own. All in all, it is a remarkable story of a worker persisting in the face of disadvantage and injury. He ought be given credit for this. I would not accept the Defendant’s position that he has not demonstrated a willingness to attempt to retrain and return to work.

16      The Defendant put that at worst the difficulties the Plaintiff faced physically had ceased by about late 2018 when he began treatment through the Alfred Hospital and Caulfield Hospital Rehabilitation Centre. Of particular note, the Defendant called in aid the report dated 22 August 2018 from the multidisciplinary rehabilitation team which noted good improvement in functional capacity of the Plaintiff physically and that he would like to return to work safely however was concerned with how he would be treated. I consider that to be simply one moment in time.[22] The evidence after that indicates that the Plaintiff’s condition has deteriorated. Mr Simm makes this point clearly in his report dated 20 March 2020.[23] I accept that and while there has been no progression radiologically there has been a deterioration in the Plaintiff’s symptoms and pain.

[22]Ibid, Note 15

[23]PCB 53, Medical Report of Mr Rodney Simm, dated 20 March 2020, at paragraph [6]

17      Setting out those matters I now turn to make findings as to the consequences that the Plaintiff suffers.       

18      Mr Ahmadizadeh takes medication in the form of tramadol, two per day, and Panadol Osteo. In addition, he takes Codapane Forte for 3 to 4 times per week. These are strong medications. He complains of constant low back pain and radicular pain to the left leg. In the past he has had a pain management course and gave evidence that the purpose of the course was to teach them how to live with pain which will be with him permanently. He has had CT guided injection at L4/5 for nerve block with no effect. He has had physiotherapy immediately after the injury and would like to continue with physiotherapy currently but cannot due to Coivd-19 restrictions.

19      His affidavit talks of the effect of his pain on his ability to sleep. His affidavit makes clear that he wakes up because of lower back pain.[24] He now describes waking up at night pain from his lower back.

[24]PCB 37, Affidavit of Mr Kiyan Ahmadizadeh, sworn 25 September 2019, at paragraph [36]

20      His relationship with his partner has broken up due in part to his low back injury.  His injury has affected his intimate life.

21      He cannot go to the gym as he used to.[25] While he has a dog and can walk with it, this is no longer at the level he used to walk and exercise.  His brother bought him the dog after his injury in an effort to get him out.

[25]PCB 39, Affidavit of Mr Kiyan Ahmadizadeh, sworn 25 September 2019, at paragraph [43]

22      Socially he deposes to being more isolated.  He lives with his brother and deposes to only being able to do very limited tasks around the house.

23      Occupationally it is universally accepted he cannot return to his old physical work. 

24      He has done a diploma in photography and is engaged in a Bachelors course in that same discipline at Torrens University – a relatively obscure academic institution. He was able to attend classes but now it is all online with Covid-19.  The contact hours were never great and now he can sit stand and move as he wants during classes. 

25      For a young vigorous man who derived so much pleasure from his physical state these are very substantial restrictions and consequences of the injury to his lumbar spine.  I find they meet the definition of being serious.

LOSS OF EARNINGS

26      The Defendant’s case is that the Plaintiff has a capacity for work as outlined by Mr Mutton[26] and the Workable report.[27] They further draw support from Mr D’Urso who opines that with some retraining the Plaintiff can return to work, at least on a part-time basis.[28] The Defendant argues that the Plaintiff has really not tried to deploy this capacity

[26]DCBV 79, Report of Dr Mutton, dated 17 July 2020

[27]DCBV 128, Workable Consulting Labour Market Analysis Report dated 23 June 2020

[28]PCB 115, Report of Dr D’Urso dated 18 October 2019, at paragraph [11]

27      The starting point for this argument is that of the Plaintiff’s physical condition. I find that the Plaintiff’s condition is such that he is unable to return to work in his former occupation as a labourer. So much is reasonably non contentious. What is really in issue is whether the Plaintiff has a capacity to work in suitable employment.  That suitable employment was really identified by Mr Mutton as being work as being a photographer, photographer’s assistant, security guard, customer service officer or data entry clerk.[29]

[29] DCBV 79-80, Report of Dr Mutton, dated 17 July 2020

28      I would immediately note that Mr Mutton makes the point that a security guard position could not be where there would be a risk of interactions with clients. I am completely uncertain what that means or what possible security guard work would be left. I would also note that substantial time on his feet would be incompatible with the Plaintiff’s lumbar spinal  injury. I put that position to one side. Both the customer service officer and the data entry clerk require proficiency in English. Mr Mutton notes that even with his improved English this remains a barrier. As I found the Plaintiff has made every effort to improve his English to this point and has exhausted his improvement for the foreseeable future I consider this to be such a barrier to these two positions that they need not be considered further. The positions of photographer and photography assistant both have physical demands for lifting, carrying, holding and repetitive movements. While the Plaintiff has an interest in photography, it is another thing to work in the field and comply with its job requirements. Even on Mr Mutton’s outline of the position it seems beyond the Plaintiff, physically. I find that he cannot perform these positions given his physical limitations.

29      For those reasons I would consider the Plaintiff to have no capacity to return to work for the foreseeable future in suitable employment. I am bolstered in that view by reason of the opinion of Mr Rowe the occupational physician.

30      Even if I’m wrong as to that and was to consider that the Plaintiff had a capacity for work, for example as a photographer’s assistant or photographer,it would not be in a full-time position. That much is made clear by the Plaintiff’s ongoing low back condition, need for medication and physiotherapy. The evidence suggests that the capacity that he would have, would only be part-time. Perhaps up to 20 hours as Mr D’Urso opines. 

31      Before considering this matter further, I make the finding that the appropriate without injury weekly earnings figure that most appropriately reflects the Plaintiff’s earning capacity in the 3 years before and the 3 years after the relevant injury in September 2016 would be that equivalent to the earnings at Sculli. This was the sum of $1050 gross per week and the 60% level is $630. This figure is calculated on 5.5 weeks of earnings at Sculli from 7 October 2016 to 14 November 2016.  For this period he earned $5779.  I prefer this calculation as it reflects the Plaintiff’s without injury earnings given he had a demonstrated capacity to move jobs from Barkers to a better paid position utilising his skills. 

32      The Defendant tendered figures a photographer earned $23.09 per hour. Even assuming 20 hours work per week this is only $461.08 per week.  This is well below the threshold and demonstrates a loss of earnings of 40% or more.

33      Given this, I will grant the Plaintiff a serious injury certificate in respect of pain and suffering and loss of earnings arising from the injury sustained throughout the course of employment with Barkers and in particular, in September 2016.