Ahmadzai v Fasco Australia Pty Ltd
[2023] VCC 798
•23 May 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-21-00296
| HAMID AHMADZAI | Plaintiff |
| v | |
| FASCO AUSTRALIA PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE GINNANE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15-16 November 2022 | |
DATE OF JUDGMENT: | 23 May 2023 | |
CASE MAY BE CITED AS: | Ahmadzai v Fasco Australia Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 798 | |
REASONS FOR JUDGMENT
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Subject:Workplace injury
Catchwords: Injury to spine – whether course of employment injury – whether frank work injury – identifying injury – causation - whether injury resolved - whether consequences unrelated to specific work injury – plaintiff’s credibility
Legislation cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases cited: Acir v Frosster Pty Ltd [2009] VSC 454; AG Staff Pty Ltd v Filipowicz (2012) 34 VR 309; Altona Bus Lines v Lococo [2002] VSCA 159; Ansett Australia Ltd v Taylor [2006] VSCA 171; Barwon Spinners Pty Ltd & OrsvPodolak (2005) 14 VR 622; Georgopoulos v Silaforts Painting Pty Ltd & Ors [2012] VSCA 179; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; HuntervTransport Accident Commission & Avalanche [2005] VSCA 1; Jones v Dunkel (1959) 101 CLR 298; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Peak Engineering & Anor v McKenzie [2014] VSCA 67; Sabo v George Weston Foods [2009] VSCA 242; Shah v VWA [2022] VSCA 95; TAC v Zepic [2013] VSCA 232; VWA v Brassington [2021] VSCA 236; Zlateska v Consolidated Cleaning Services Pty Ltd [2006] VSCA 141.
Judgment: Application granted
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Ingram KC and Mr B Hill | Shine Lawyers |
| For the Defendant | Mr D Churilov | IDP Lawyers |
HIS HONOUR:
1The plaintiff seeks the grant of a serious injury certificate pursuant to the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) to enable the commencement by him of common law proceedings for damages for pain and suffering. The plaintiff was represented by Mr Ingram of King’s Counsel with Mr Hill of counsel. The defendant was represented by Mr Churilov of counsel.
The application and the injury relied upon
2On or about 7 August 2014 whilst performing his work with his employer the plaintiff experienced severe lower back pain.
3The Particulars of Injury (after taking account of the abandonment of the claim under paragraph (c) of the definition) of “serious injury” were expressed as follows:
I. Small posterior disc protrusion at L2/3 with mild thecal sac compression
II. Disc bulge and protrusion at L4/5 with mild thecal compression
III. Mild left-sided posterior disc bulge and protrusion at L5/S1 with mild thecal compression involving the descending left S1 nerve root
IV. Disc lesions at L2/3, L4/5 and L5/S1
V. Aggravation of degenerative changes in the lumbo-sacral spine
VI. Dysfunction of the lumbo-sacral spine
VII. Disc bulges form C3 to C6
VIII. Aggravation of degenerative changes in the cervical spine…[1]
[1] Plaintiff’s Court Book (‘PCB’) 15.
Relevant legal principles
4The definition of “serious injury” contained in s325(1) of the Act and on which the plaintiff relies reads:
“‘Serious injury’ means –
(a) Permanent serious impairment or loss of a body function ….”
5The Court must not give leave to commence common law proceedings unless it is satisfied, on the balance of probabilities, that the “injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s325(1) of the Act.[2]
[2] Section 335(5) of the Act.
6To establish serious injury, the plaintiff must prove, on the balance of probabilities, that:
“the injury” suffered by him arose out of, or in the course of, or due to the nature of employment;[3]
“the injury” and resulting impairment must be “permanent” – that is, permanent in the sense that it is “likely to last for the foreseeable future”;[4]
the “consequences” of the impairment in relation to “pain and suffering” must be “serious” – that is, the impairment or loss of body function “when judged by comparison with other cases in the range of possible impairments … may be fairly described as being more than significant or marked, and as being at least very considerable”.[5]
[3] Section 327 of the Act; see also Barwon Spinners Pty Ltd & OrsvPodolak (2005) 14 VR 622 (‘Barwon’).
[4] Barwon (2005) 14 VR 622, 638 [33].
[5] Section 325(2)(c) of the Act.
7The requirement to satisfy these elements is sometimes referred to as the “narrative test”.
8The question of whether an injury satisfies the narrative test is largely one of impression or value judgment.[6]
[6] See Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592, 628; see also Sabo v George Weston Foods [2009] VSCA 242, [67].
9In determining the “consequences” of the injury, the Court is required to consider the consequences to this plaintiff, viewed objectively, arising from the injury.
10In determining the application, the Court:
must not take into account psychological or psychiatric consequences of “the injury” for the purposes of paragraph (a) of the definition of “serious injury” – these can only be taken into account for the purposes of paragraph (c) of the definition of “serious injury”;[7]
must assess whether “the injury” is a “serious injury” as at the time the application is heard;[8]
must give reasons that disclose the pathway of reasoning in dealing with the evidence and issues raised by the application;[9]
[7] Section 325(2)(h) of the Act.
[8] Section 325(2)(j) of the Act.
[9] See generally HuntervTransport Accident Commission & Avalanche [2005] VSCA 1, [23]-[26].
The plaintiff’s contention
11Mr Ingram’s primary contention is that the plaintiff has suffered an impairment to the function of the spine caused by the nature of his employment and in a specific incident on 7 August 2014. He further contends that it is fallacious to try and separate out one disc from another in an effort to distinguish the lumbar from the cervical spine, as he foreshadowed the defendant would endeavour to do, in an effort to argue that some part of the lumbar or cervical spine injury that occurred on or as a result of the 7 August 2014 incident had repaired, whilst other identifiably affected discs were not injury related. Furthermore, Mr Ingram submitted that once the defendant’s “injury” argument is overcome, then the pain and suffering consequences the plaintiff presents with as a consequence of his injury should be assessed as serious within the meaning of the Act.
The defendant’s contention
12Mr Churilov variously criticised the serious injury application as one that is compelled to fail. Mr Churilov principally contended that the plaintiff has not discharged his burden of proof that the injury suffered was sustained as a gradual process throughout the course of his employment and also the discrete incident of injury relied on as suffered on 7 August 2014 has resolved and that any remnant consequences the plaintiff is experiencing is not because of a compensable injury.
Plaintiff’s evidence
13The plaintiff’s evidence in chief in support of his application was expressed in the form of his two affidavits sworn on 11 September 2020,[10] and 20 May 2022.[11] In addition, the following evidence was tendered:
[10] Exhibit P1, PCB 5-14.
[11] Exhibit P1, PCB 24-31.
·Affidavit of Hamid Ahmadzai dated 11 September 2020[12] and Further Affidavit of Hamid Ahmadzai dated 20 May 2022;[13]
[12] Exhibit P1, PCB 5-14.
[13] Exhibit P1, 24-31.
·Affidavit of Farshta Sabri dated 4 June 2021;[14]
[14] Exhibit P2, PCB 18-21.
·Radiology Reports;[15]
[15] Exhibit P3, PCB 32-39 and 174-175.
·Letter from Charlotte Huerta dated 20 August 2014;[16]
[16] Exhibit P4, PCB 40.
·Letters of Dr Suzette Meshreky dated 3 September 2014,[17] and 24 October 2014;[18]
[17] Exhibit P5, PCB 41.
[18] Exhibit P5, PCB 42, 45-51, 52, 59, 64, 65-66, 77(date of report at PCB 77 in index is incorrect, correct date is 19 Feb 2021).
·Reports of Mr John McMahon dated 7 November 2014, 12 December 2014 and 24 February 2017;[19]
·Reports of Dr Kenneth Shum dated 2 September 2015 and 9 April 2017;[20]
·Report of Dr Ales Aliashkevich dated 24 August 2020;[21]
·Report of Dr Nathan Serry dated 8 February 2022;[22]
·Reports of Stephen Doig dated 24 March 2022 and 16 September 2022;[23]
·Reports of Mr Peter Scott dated 14 October 2014 and 21 October 2014;[24]
·Report of Dr Malcolm Brown dated 16 February 2015;[25]
·Worker’s Claim Form dated 9 April 2014;[26]
·Notice of Entitlement dated 9 October 2017;[27] and
·Affidavit of Omar Ahadi dated 16 July 2021.[28]
[19] Exhibit P6, PCB 43, 44, 67-72.
[20] Exhibit P7, PCB 60-61, 73-76.
[21] Exhibit P8, PCB 78-92.
[22] Exhibit P9, PCB 105-114.
[23] Exhibit P10, 115-121 and 122-123.
[24] Exhibit P11, PCB 124-132, 133.
[25] Exhibit P12, PCB 134-137 and 147-148.
[26] Exhibit P13, PCB 151-152.
[27] Exhibit P14, PCB 153-164.
[28] Exhibit P15, PCB 22-23.
Defendant’s medical evidence
14The defendant tendered the following material:
·Report of Dr David Elder dated 12 September 2017;[29]
·Report of Associate Professor Max Esser dated 14 June 2022;[30]
·Attendance Notes of Stud Road Medical Centre;[31] and
·Attendance Notes of O’Shea Medical Centre.[32]
[29] Exhibit D1, DCB 16-21.
[30] Exhibit D2, DCB 22-30.
[31] Exhibit D3, DCB 31-58.
[32] Exhibit D4, DCB 59-71.
15I have read and considered all of the material relied upon by the parties. I have also had regard to the oral evidence of the plaintiff and the addresses and submissions of counsel.
The plaintiff’s circumstances
16The plaintiff was born in Afghanistan. There he completed schooling to the equivalent of Year 12. He came to Australia in 2009 to join his wife who had been living here for many years. He completed a TAFE Certificate III in English. While completing this course he worked for about a week at Bunnings.
17On 19 April 2010 he commenced employment as a process worker/final tester for the defendant, an air-conditioning manufacturer. He said he was employed for 2 years as a full-time casual before being made permanent. He usually worked a 38 hour week and he earned approximately $685.00 gross per week.
Plaintiff’s prior health conditions
18The plaintiff deposed that in November 2009[33] he was diagnosed with a bilateral carpal tunnel syndrome. His long standing GP, Dr Suzette Meshreky prescribed Voltaren and referred him to Dr Kempster, neurologist for further opinion. By the time the plaintiff came to see Dr Kempster, he said that his condition had improved. The plaintiff said that he has no ongoing problems with his wrists.
[33] Exhibit P1, PCB 5-14.
19In February 2011, the plaintiff attended the Dandenong Hospital Emergency Department with a laceration to the webbing between his right thumb and index finger that he injured while grabbing a broken metal door handle.[34] He did not experience ongoing issues with the hand.
[34] Exhibit P3, PCB 33.
Previous back and hip pain in 2011
20Approximately 3 ½ years before the incident at work on 7 August 2014, and on 2 March 2011, the plaintiff attended the Dandenong Hospital Emergency Department with back pain that had come on gradually while he was at work. He was provided with some analgesia and discharged home. That night pain increased and the next day he returned to the Emergency Department. Also in March 2011, he attended his GP complaining of left hip pain. He was prescribed Nurofen, Panadol and Endone. His GP identified signs consistent with left sided sciatica. A CT scan on 4 March 2011[35] revealed minor anterior osteophytes, that is to say, bone spurs at the front of the spine, that were forming at the L3/4 level of the lumbar spine. The plaintiff said that his pain resolved over time.
[35] Exhibit P3, PCB 32.
The work
21The plaintiff deposed in his first affidavit that his employment required him to test and assemble fans for motor vehicles as well as for household air-conditioners. He was also required from time to time to lift motors and other air-conditioning components and to stack them. The work he did could be heavy and was carried out manually.
The specific incident of injury
22On 7 August 2014 the plaintiff was unpacking a pallet that he said contained approximately 36 motors, each of which weighed between 12 and 35 kilos. He was lifting the motors from chest height and placing them on a pallet. While lifting a motor he said that he felt a sudden onset of sharp pain radiating from his lower back to his buttock and down the back of his left leg. He continued working and completed transferring the motors from one pallet to another but over that morning and during his morning tea break his pain increased to the point that he had difficulty moving his legs and so he left work early.
Treatment
23After leaving work the plaintiff attended Berwick Hospital. He was provided with painkillers. The following day he attended Dr Meshreky who referred him for physiotherapy.
24On 18 August 2014 the plaintiff attended Ms Huerta, a physiotherapist, for treatment.[36]
[36] Exhibit P4, PCB 40.
25The plaintiff continued to work on and off with the employer until 21 August 2014.
26The plaintiff attended Dr Meshreky on 2 September 2014[37] who referred him for a CT scan of the lumbosacral spine. The report of the CT scan of 2 September 2014 revealed the following:[38]
[37] Exhibit D3, DCB 39-40.
[38] Exhibit P3, PCB 34-35.
There is mild facet arthropathy[39] at L1/2 and L2/3 and other levels.
At L2/3, there is a small posterior central disc protrusion with mild thecal compression. This is more prominent slightly to the right of the midline.
At L4/5, there is a mild left-sided posterior and posterolateral disc bulge and protrusion with mild thecal compression and bulging of the lower portion of the left foramen which is slightly narrowed.
At L5/S1, there is a further mild left-sided posterior disc bulge and protrusion, with mild thecal compression involving the descending left S1 nerve root. There is slight bulging of the lower portion of the foramen which is slightly narrowed.
Conclusion:
Disc lesions[40] on the left side posterolaterally at L4/5 and L5/S1, and centrally and slightly to the right at L2/3.
[39] A form of arthritis of the spine.
[40] In ordinary parlance, disc damage.
27It may be immediately recognised that the Particulars of Injury filed in support of the plaintiff’s Origination Motion, reflect in part, the findings of the initial CT scan of the lumbosacral spine from 2 September 2014.
28On 3 September 2014 Dr Meshreky provided the plaintiff with a further no current work capacity certificate as a result of “multiple disc prolapse with nerve compression”.[41]
[41] Exhibit P5, PCB 41.
29By 24 October 2014 Dr Meshreky was relevantly prescribing the plaintiff Endone 5mg, 1 every 6 hours; Lyrica 75 mg, 1 tablet twice a day; Panadeine Forte, 2 every 6 hours and Voltaren 50 mg, 3 times a day.
30The plaintiff lodged a WorkCover claim form on 16 September 2014.[42] The details of injury expressed in it were, “back injury (low back, multiple disc prolapse,”[43] in other words, a description consistent with the findings of the CT scan of 2 September 2014. The circumstances of injury recited was that “I was lifting an object (motor) and I feel pain in my back.”[44] The Claim Form did not describe a methodology of injury that developed by reason of repetitive and or heavy work or work processes over time.
[42] Exhibit P13, PCB 151.
[43] Exhibit P13, PCB 151.
[44] Exhibit P13, PCB 151.
31The Workers’ Claim was accepted for weekly payments and medical and like expenses.
32Dr Meshreky referred the plaintiff to Mr John McMahon, neurosurgeon, and he was seen initially on 6 November 2014. Mr McMahon did not recommend surgery but told the plaintiff that if his symptoms did not improve then he would discuss a surgical treatment option of a left L5/S1 microdiscectomy and decompression of the left S1 nerve root. To date the plaintiff has not come to surgery.
33Also, at the request of Mr McMahon, the plaintiff had an MRI of his lumbar spine performed on 14 November 2014.[45] It reported these findings:
At L2/3, a minor disc bulge indents the thecal sac. At L3/4 and L4/5, the central canal and neural exit foramina are capacious.
At L5/S1, a tiny left paracentral disc protrusion contacts and most likely irritates the left S1 nerve. The neural exit foramina are also capacious.
The facet joints are normal. No pars defect is identified.
Conclusion:
Lumbar disc degeneration with a tiny left paracentral protrusion at L5/S1 contacting and most likely irritating the left S1 nerve.
[45] Exhibit P3, PCB 36.
34In addition to experiencing pain in his lower back and left leg, the plaintiff said that he commenced to develop neck pain, shoulder pain and headaches not long after the incident at work. He also had episodes of numbness in both hands.
35He was referred by Dr Meshreky for an MRI of his cervical spine on 4 March 2015.[46] Its findings were:
Cervical spine and cerebellar tonsil signal is unremarkable.
Normal alignment of vertebral height seen.
Minimal anterior and posterior spondylosis seen from C3 to C5.
Mild broad based disc protrusion seen from C3 to C6 in conjunction with posterior spondylosis causes bilateral C3/4 osseous neural exit foramen narrowing and likely bilateral C4 neural impingement.
Otherwise no evidence of spinal canal stenosis or neural impingement.
Remaining disc levels are unremarkable.
Prevertebral soft tissues are unremarkable.
[46] Exhibit P3, PCB 37.
36The plaintiff did not return to any work with his employer after 17 August 2015, and in about July 2016, his employment was terminated.
37The plaintiff said that his mood suffered as a result of his physical injury. He became frustrated and irritable and angry at home with his wife. He deposed to feeling hopeless. He became emotionally and socially withdrawn.
38The plaintiff was referred to Mr Mark Salter, psychologist,[47] whom he saw on 27 October 2014.
[47] Exhibit P5, PCB 42.
39In 2015, Dr Meshreky referred the plaintiff to Mr Poznanski, psychologist whom he saw on three occasions between April and June 2015 but he deposed that he did not find the treatment helpful and so his attendances stopped.
40The plaintiff deposed that his marriage broke down. Divorce followed. Subsequently their relationship improved and he and his former wife now cohabitate.
Post injury employment
41In 2016, the plaintiff found employment contracting with a telecommunications services company, Australian Fibre Tech Pty Ltd (“AFT”), that secured work through BSA Limited (‘BSA”). He was employed on a casual basis and worked approximately 15 to 20 hours a week and usually 5 days a week. The tasks involved laying cables for internet connections at residences throughout Melbourne. Jobs were each of approximately 20 minutes duration. He said he was able to take rest breaks regularly. Nonetheless, he found that laying cables was heavy work and it caused his lower back pain to flare up. He took Nurofen to control his pain during the day. He said that he was also taking Endep 25 mg at night; Lyrica 75 mg daily and between 2 and 3 Endone tablets per day.
42On 12 July 2017 the plaintiff registered his own company, Eyebright Fibre Tech Pty Ltd. He is the sole director. He performed NBN activation work. He said that the work was not akin to the heavy work associated with the installation of cabling he did with AFT but that that once or twice a week his brother assists him with more physically demanding jobs. He usually works between 3 and 4 hours a day, 5 days a week as this is about his limit physically. He deposed to earning between $2,000 and $3,000 gross per week.
43The plaintiff deposed how he thinks that since establishing Eyebright Fibre Tech Pty Ltd his mental state improved. He stopped receiving treatment for depression and Endep ceased being prescribed.
44In his first affidavit dated 11 September 2020 the plaintiff deposed that he continued to attend Dr Meshreky once or twice a month for prescription pain medicine. He said he was taking Endone up to 4 a week and Nurofen and Panadol 1 or 2 daily. He said he takes more medication in the cold weather because this is when his back pain is worse.[48]
[48] Exhibit P1, PCB 24 – 31.
45The plaintiff said that he was continuing to experience an almost constant aching pain in his lower back that fluctuated throughout the day depending on his level of physical activity. He described the pain as ranging from a constant, dull throbbing ache to a sharp stabbing pain. His back pain increases significantly if required to lift, and is accompanied by pain that radiates from his lower back into his buttock and down the back of his left leg. He said that an aggravation of his back pain can take up to a week to revert to a dull, throbbing ache.
46The plaintiff deposed to continuing aching pain in his neck and occasional headaches, especially after working for an extended period of time.
47The plaintiff said that lower back pain interrupted his sleep. His lower back will stiffen up overnight and he has difficulty getting up and moving in the mornings.
48The plaintiff deposed that prior to his injury he attended a gym on a regular basis and although he had tried to resume his gym work, he cannot run on a treadmill and has been unable to lift weights.
49The plaintiff deposed to difficulty undertaking any work in the garden. Weeding is difficult, as he cannot bend for too long or his back pain increases. He said he does not mow the lawn often and usually obtains assistance from his children.
50The plaintiff deposed that he had always been a family man and had not developed many hobbies and was not a great socialiser outside his family environment. However, he said that one of his few outlets prior to his injury had been playing soccer socially with his friends about every week or so. He said that since being injured he had been unable to do so because he struggles to run as he once did.
51The plaintiff is a father to 3 boys and 2 girls whose ages at the time of his first affidavit ranged between 1 and 10 years old. He said he had difficulty playing and interacting with them. He needed to be very careful lifting his youngest child up as doing so aggravates his back pain. It saddens him that that he is not able to play freely with them.
Second affidavit
52The plaintiff deposed in his second affidavit dated 20 May 2022[49] that in around February 2022 he moved home from Hallam to Dandenong. He said he continues to see Dr Meshreky every month. He still takes Endone at least once a week; but takes one or two Panadol tablets every two or three days. He also takes a Nurofen tablet at night and before bed.
[49] Exhibit P1, PCB 24-31.
53He deposed that he has seen a physiotherapist, Mr Fraig, but that the treatment administered by him aggravated his lower back pain and he stopped attending on him in early 2022. Concurrently he attended a local massage clinic and still does so every fortnight or thereabouts and he pays for his own treatment.
54The plaintiff deposed that his lower back condition has deteriorated since swearing his first affidavit. He said that he now suffers from a constant aching pain in his lower back which he assessed as usually 5 out of 10 but increases to 9 out of 10 when suffering a flare up. He said that a flare up can last up to three weeks and is accompanied by a shooting pain into his left buttock and down his left leg and occasionally with the pain shooting down his right leg.
55The plaintiff deposed that in early 2021 Eyebright Fibre Tech Pty Ltd ceased obtaining work from BSA because he struggled to do all the jobs allocated to him in his area. Also he had been doing smaller jobs and NBN activations using technologies which were lighter to deploy and were within his physical capacity to install, however, he was advised by BSA that it no longer had work requiring the use of these technologies.
56Later in 2021, the plaintiff obtained NBN installation work after Eyebright Fibre Tech Pty Ltd subcontracted with his cousin’s company, Aus Fibretech. He described the work as casual, but on average, he works 5 days a week up to 3 hours a day attending approximately 3 jobs per day. His invoiced work varies between $7,000 to $18,000 per month from which he pays income tax, GST and equipment costs.
57The plaintiff deposed that on arriving home from work his back is usually very sore and he has to sit on the couch and rest. If he suffers a flare-up of his symptoms at work, it will be accompanied by referred pain into his buttocks and down his left leg. He also encounters difficulty walking.
58The plaintiff explained that his family and home life continues to be adversely affected by his lower back injury. His eldest child is aged 12. He is still unable to play too physically with his children and he needs to sit out some activities. He previously took his sons to the Doveton Soccer Club where he had tried to watch them play but the most he could manage was about an hour. He said that he finds standing around, especially in the cold, causes his back to stiffen up and to become very sore. During the Victorian Government imposed lockdown his sons stopped playing soccer and they have not returned to the club.
59The plaintiff said that he cannot kick the football with his boys any longer, a development which saddens him.
60He said he will occasionally assist his partner with the shopping but it is she who pushes the shopping trolley and it is she who lifts the heavy bags. In the garden, he mows the lawn when he has to, but he needs to break the job up with several rest breaks. His wife and older son help him with the mowing and the gardening.
61The plaintiff avoids moving furniture around the house, for example, if the carpet needs vacuuming, or furniture is being rearranged. He has hired a cleaner every week or so to assist with housework. The children help with hanging out the laundry.
62The plaintiff deposed that he has a constant low ache in his neck that medication usually is able to mask, but about once a month, he experiences an increase of the aching neck pain which shoots down his neck and into the back of his right shoulder. This can last for 2 or 3 days. Headaches, however, are no longer common.
63The plaintiff deposed that he might need to drive upwards of 150 km for work of a day. He said that his car is high off the ground and getting in and out is not too difficult to navigate but sitting in it for lengthy periods causes his lower back to stiffen and become very sore. He struggles to turn his head to perform mirror checks as it aggravates his neck pain. Because of his right shoulder pain he tends to drive awkwardly, hunched over the steering wheel, which in turn worsens his back pain.
64The plaintiff’s mother died in June 2021 in Afghanistan from COVID-19. He was not allowed to leave Australia to attend her funeral. The plaintiff said he suffers from a very low mood that is due mainly to his lower back pain. His relationship with his partner has been up and down. He is irritable and difficult to live with. He said that he is not the happy person he once was. He feels ashamed that his partner is called on to attend to almost everything around the house, including looking after the children. He feels isolated and he had not seen friends while locked down and when he does get out he feels excluded because he cannot participate in activities as much as he would like to because of his back pain.
65The plaintiff deposed to ongoing difficulties with sleep. He said that if he forgets to take medication before bed he will wake in pain during the night. He takes Endone to help him get back to sleep. He manages about 4 hours sleep most nights. For a while his partner and he stopped sharing a bed as he was too disruptive and was tossing and turning. Sometimes when he wakes his wife will apply Deep Heat or Voltaren to his back. He said he feels tired during the day and often has difficulty concentrating. His memory is not great.
66His partner helps him shower because he struggles to reach his back and to bend down to his lower legs. She helps him dress, in particular, with his shoes and socks, because he struggles to bend to reach that far.
67He deposed that he has not been to the gym for a year or more and he stopped swimming because it aggravates his lower back pain.
Affidavit of Farshta Sabri
68The plaintiff’s partner made an affidavit dated 4 June 2021.[50] Ms Sabri deposed that she is aware that the plaintiff’s back pain causes him restriction in what he can do and how he can move. She recognises whenever he is in pain because he groans and puts his hand on his back and scrunches up his face.
[50] Exhibit P2.
69Ms Sabri deposed that the plaintiff does not pick up and carry their children. He avoids heavier tasks around the home.
70Ms Sabri said that she is aware that the plaintiff struggles to sleep through the night because he wakes her up. She has to rub his back a few nights a week.
71Because of the plaintiff’s lower back pain their intimate life has been adversely affected.
72Ms Sabri deposed that prior to his injury the plaintiff was independent in his personal grooming and bathing but nowadays she will sometimes help him with showering because of his back pain.
73Ms Sabri deposed that the plaintiff had always been a family man and before his injury he would bathe the children and assist with housework including vacuuming, gardening and hanging out the washing. He was very house proud. Nowadays he struggles with housework and has hired a cleaner to assist.
74Ms Sabri said that her sister assists with housework twice a week. Their children also help by hanging out the washing whilst their eldest son helps with the gardening including the weeding and mowing of the lawns.
75Ms Sabri deposed that before his back injury the plaintiff socialised with his friends and he enjoyed swimming. She said that when the plaintiff is in a lot of pain his mood worsens which has a detrimental effect on her and the children.
Affidavit of Omar Ahadi
76Mr Ahadi swore an affidavit on 16 July 2021.[51]
[51] Exhibit P15.
77Mr Ahadi deposed that he is a close friend of the plaintiff and worked with him during 2017 at BSA. He referred to a group of about a dozen men, mostly NBN technicians, who play football, cricket and tennis together from time to time. Mr Ahadi said that he used to invite the plaintiff to play with them but most of the time he would decline to do so. Mr Ahadi said the plaintiff told him about his back problem sometime in 2018. Mr Ahadi deposed that whenever the plaintiff did play, he would only last about 10 or 15 minutes at a time. Mr Ahadi noticed that the plaintiff would often stop and sit down to rest, sometimes for up to 30 to 45 minutes, before coming back on ground, if at all. He said that he has witnessed the plaintiff put his hand on his back, or rub his back and stretch and twist his body during the course of a game as if to relieve pain. Mr Ahadi deposed that the plaintiff has not played with the group of men since approximately December 2020.
78Mr Ahadi said he had also attended the cinema with the plaintiff who seemed to struggle when seated and after a short time would stand up from his seat and walk to the back of the cinema and either return to his seat or leave the theatre.
79Mr Ahadi has on the rare occasion observed the plaintiff lying on the sand at the beach but never swimming.
80Neither Ms Sabri nor Mr Ahadi were required for cross-examination by the defendant.
An examination of the plaintiff’s post injury treatment [52]
[52] Numerous clinical entries contain grammatical and spelling errors but they have been reproduced as recorded by the author.
81On 8 August 2014, the day following the work incident, Dr Meshreky recorded:
has pain in his left hip, had injury at work during lifting presented to super clinic the day before on panadeine forte. o/e limitation of the left hip movement. tender and stiff over lumbar spine. Actions: Imaging request printed: left hip x ray & u/s. (pain in the left hip ??bone injury or tendon injury).[53]
[53] Exhibit D3, DCB 39.
82Dr Sadaf Khan, GP, recorded on 1 September 2014:
C/O back sore ..was doing gardening yesterday since than. No leg pain or numbness ..No other complain. Examination: Back No tenderness ... limited movement b/c pain. reast Normal. Reason for visit: Back pain. Actions: Voltaren 50 50mg Enteric coated tablet 1 Three times a dday with meals. Medical certificate given from 01/9/2014 until 01/9/2014.[54]
[54] Exhibit D3, DCB 39.
83The plaintiff attended Dr Meshreky on about 2 September 2014 who referred him for a CT scan.[55] Dr Meshreky recorded:
has trouble with his back. lower back pain increasing. the pain is referred to the thigh. Actions: …Imaging request printed: CT lumbar spine. (pain in the lower back?? disc prlapse). Prescription printed: Panadeine Forte 500mg; 30mg Tablet 2 Every 6 hours... Voltaren 50 50mg Enteric coated tablet 1 Three times a day with meals.
Recorded on 3/9/2014. missed work because of the pain. letter written to explain his situations. Actions: Results of CT lumbosacral spine given to patient. Medical Certificate given from 21/08/2014 to 03/09/2014.[56]
[55] Exhibit D3, PCB 40.
[56] Exhibit D3, DCB 40.
84Dr Meshreky provided the plaintiff with a medical certificate on 3 September 2014 that read:
Mr Hamid =Ahmadzai has a medical condition and was unfit for work from 21/8/2014 to 3/9/2014 inclusive. I have seen him yesterday, he told me he was unwell for the last 2 weeks and he could not go to work. yesterday he had ct scan to his lower back which showed multiple disc prolapse with nerve compression. that definitely will explain the pain that he suffers from. So although I have seen him only yesterday, I believe his pain is genuine as a result of the ct scan that he had.[57]
[57] Exhibit P5, PCB 41.
85Further clinical attendances on Dr Meshreky included:
16/9/2014. has numbness in the lower back. Increasing. not setteling down. Actions: Prescription printed: Lyrica75mg Capsule 1 Twice a day
17/9/2014. has severe lower back pain. cannot sleep. has trouble with his sex life. his wife suffer from depression. Actions: Prescription printed: Endone 5mg Tavlet every 6 hours. Prescription printed: Endep 10 10mg Tablet 1 In the evening. Prescription printed: Viagra 100mg Tablet ½ Daily.
22/9/2014. work cover. still not feeling good. still can not go to work. has lower back pain.
26/9/2014. Recommendation. avoid repetitive bending. avoid bending & repetitive time. half day work to start.
16/10/2014. Long consult. discussed the return to work plan. he is not happy. he still having pain. discussion about part time to start with. no lifting or bending. referral to specialist. hamid feels he has no capacity to work eight now. Actions: …Letter written to Mr John McMahon re Specialist referral.[58]
[58] Exhibit D3, DCB 40-42.
86The plaintiff attended a single session with Mr Mark Salter, psychologist on about 27 October 2014.
87Dr Meshreky recorded on 29 October 2014:
case conference with Mr Fraser Moore & Caroline Kennedy. hamid still having. headache. can not sleep at night. feeling very stressed. stomach ache from the medication. discussed psychological proplem with Hamid he started to see the counceller. appointment with neurosurgeon 6/11/2014. agree to try for 2 hours twice a week, slowly increase the hours.[59]
[59] Exhibit D3, DCB 42.
88On 7 November 2014 Mr McMahon reported back to Dr Meshreky in these terms:
Thank you for asking me to see Mr Hamid Ahmadzai, whom I saw on 6 November 2014. He is a 32 year old right handed male who does not have any relevant past history. I note that he works at Regal in air conditioning manufacturing. He has been employed at Regal for the last four years. His work involves air conditioner manufacturing and doing the final checks. He often has to lift air conditioners which weigh 15 kg, and this can occur sixty to seventy times each day. On or about 7 September 2014, he was repacking a pallet and moving motors around. At that stage, he developed left sided buttock and back pain which progressively worsened over the next few days, and he had severe pain involving his left buttock and posterior aspect of his left lower limb to his foot. He also had some foot sensory disturbance. He went to Berwick Hospital and was given some analgesics. Unfortunately, he has not been able to continue working and has ongoing symptoms.
On examination on 6 November 2014, he did not have any foot weakness.
A CT scan reveals some intervertebral disc degeneration at the L4/5 and L5/S1 level.
I feel that further investigations are required and I have organised a lumbar spine MRI scan with review appointment in two weeks’ time. I will keep you updated.[60]
[60] Exhibit P5, PCB 43.
89The plaintiff had the lumbar MRI referred to by Mr McMahon performed on 14 November 2014.
90Mr McMahon reported on 12 December 2014 that he had:
reviewed Mr Hamid Ahmadzai on 10 December 2014. He continues to describe intermittent left sided buttock pain which intermittently radiates to his posterior thigh and plantar aspect of his foot. The lumbar spine MRI scan reveals a very small left L5/S1 disc prolapse which appears to be immediately adjacent to the left S1 nerve root.
At the moment, his symptoms are on the milder side, and I do not feel that surgery is indicated. However, if his symptoms worsen, then I would be happy to see him once again to discuss the surgical option of a left L5/S1 microdiscectomy and decompression of the left S1 nerve root. I would hope that his symptoms will tend to settle over the next few months.[61]
[61] Exhibit P5, PCB 44.
91The plaintiff was seen by Dr Malcolm Brown, an occupational physician, who provided a report to the WorkCover agent on 16 February 2015. His report included the following:[62]
[62] Exhibit P12, PCB 135.
5. General History: …He continued at work for about a month after the onset of his symptoms but then ceased and has not returned...
6. Clinical history: Mr Ahmadzai had no prior history of back pain. He described onset associated with manual tasks at work in August 2014, with radiation into the left leg. He has refused surgery, and said his symptoms have improved a little…
7. Examination findings: Mr Ahmadzai moved cautiously but without any evident stiffness of limp. He is 170 cm tall, and weighed 82 kg clothed. There was no tenderness to palpation over the lower back and he was able to stand on his heels and toes without difficulty. Axial loading was positive. Spinal rotation was 20 degrees left and right, with side flexion of 15 degrees, minimal extension and flexion of 45 degrees. Straight leg raising in the supine position reached about 60 degrees bilaterally with some back pain on the left particularly. Examination of the hips was normal. Reflexes appeared to be normal.
Specific questions:
8.1. Mr Ahmadzai has low back pain with the radiological findings of disc pathology and nerve root involvement.
8.2. His condition appears to relate to his employment and there was no evidence of hobbies or sports that could be conducive to the development of his condition. His condition appears to relate to the repetitive bending tasks at work described in the documentation provided.
8.3-4. Based on the history given, his condition and associated incapacity still result from the injury sustained on 7 August 2014.
8.5. He does not have capacity for pre-injury duties at present.
8.6. He has capacity to return to appropriate duties now.
8.7. The exact ergonomic requirements of the tasks in the return to work plan are not clear, particularly with regard to standing and sitting. Mr Ahmadzai does not have capacity to do any standing tasks at present.
8.8. He does have a current work capacity but this is restricted.
8.9. Current treatment is described above but does appear to need some modification.
8.10. Duration of treatment will depend on his clinical progress.
8.11.Treatment should not be reduced, and in fact requires augmentation.
8.12. I think cessation of all treatment would adversely affect his capacity for work and activities of daily living.
8.13. He has capacity to drive to work for 15 minutes at present.
8.14. Timing for any future review of his work capacity will depend on his clinical progress.
8.15.There were no other obvious issues adversely affecting his recovery and return to work.
9. Conclusions: Mr Ahmadzai has signs, symptoms and radiological findings all consistent with discogenic low back pain with nerve root involvement. He has decided against surgery, and appears to be making gradual progress. However he still has significant symptoms and incapacity. The usual history in these circumstances is for gradual improvement over weeks and months. It appears this is condition relates to repetitive bending at work, as described in the documentation provided, including Mr Smith's statement, and the clinical records showing he attended his treating general practitioner on 8 August 2014 for lower back/hip pain.
With regard to treatment there is no physiotherapy or exercise program apparently at present, and this needs to be the focus of management. He needs a properly structured rehabilitation program supervised by a physiotherapist experienced in spinal rehabilitation, Given the cultural background, it is important that Mr Ahmadzai clearly understands that discomfort during exercise will not cause further damage to his back, and that a properly structured exercise program is central to his recovery.
With regard to work, Mr Ahmadzai does not have capacity for pre-injury duties which are done constantly standing. He does not have capacity to do any standing tasks at all at present. He has capacity for sedentary duties, for a couple of hours three times a week but does not have capacity to undertake a graduated return to work program at this time. The long-term outlook with regard to work remains unclear, as it is quite difficult to predict in such cases.[63]
[63] Exhibit P15, PCB 135-137.
92The plaintiff experienced episodes of numbness in both hands and on 25 February 2015 Dr Meshreky recorded, “Imaging request: MRI Scan- Cervical spine. (pain in the neck with signs of radiculopathy left hand ?? nerve compression)”[64]
[64] Exhibit D3, DCB 44.
93The plaintiff had a cervical spine MRI performed on 4 March 2015.[65] Dr Meshreky recorded, “5/3/2015- discuss the result. referral Actions: Results of MRI c spine given to patient. Letter to Mr John McMahon.”[66]
[65] Exhibit P3, PCB 37-38.
[66] Exhibit D3, DCB 44.
94The plaintiff attended Mr Joseph Poznanski, psychologist, for three sessions between April and June 2015. The plaintiff said he found them unhelpful.
95On 30 June 2015 Dr Wang, a GP, recorded that “Work ralated neck and low back pain need more medications as fololow. Actions: Endone 5mg Tablet ceased. …Endep 25 25mg Tablet 1 before bed. …Lyrica 75mg Capsule 1 Twice daily. …Voltaren 509 50mg Enteric coated tablet Three times a day.”[67]
[67] Exhibit D3, DCB 47.
96On 24 July 2015 Dr Meshreky recorded, “back to work. returning in modified duties. he is willing to try. still has the trouble with his wife with her depression. trial of paroxetine.”[68]
[68] Exhibit D3, DCB 48.
97On 31 July 2015, Dr Khan recorded, “came to get Medical certificate for GYM. as unable to continune for few months B/C back injury. on Wc as well.”[69]
[69] Exhibit D3, DCB 48.
98On 4 August 2015 Dr Meshreky recorded, “happy to go to try work. printed the last 3 certificate and gave to him. discussed return to work plan”[70]
[70] Exhibit D3, DCB 48-49.
99On 14 August 2015 Dr Meshreky’s entry recorded:
he went to work 3 days a week, he started to have the pain again. has sweating from the medivcation. he do assembling at work. he could not go to work today. more tightness in the neck & shoulder. plan. referral to Dr Thomas & review by Dr McMahon.[71]
[71] Exhibit D3, DCB 49.
100On 19 August 2015 Dr Meshreky recorded that the plaintiff “has an appointment with the specialist… he has severe lower back pain. could not go back to work”.[72]
[72] Exhibit D3, DCB 49.
101On 2 September 2015 the plaintiff was assessed by Dr Kenneth Shum, a Consultant in Rehabilitation and Pain Medicine, who reported back to Dr Meshreky as follows:
Thank you for referring this 33-year-old gentleman with chronic lumbar back pain following a WorkCover related injury about one year ago. Hamid previously worked as a factory assembly hand. He recently failed a trial of return to work a few weeks ago secondary to pain.
Hamid experienced an initial low back pain immediately following the lifting injury. Within a few hours, he felt he could not move his left leg. His current evolution of symptoms are described in the region of his low back with referral to his left hip, lateral thigh down his knee to the top of his foot.
I note a recent MRI done in November 2014 citing multiple degenerative changes with a paracentral disc protrusion possibly contacting the L5/S1 nerve root. Cervical spine findings described a C3-C4 osteophyte complex possibly causing C4 neural impingement.
Hamid has indeed recently complained of some axial neck pain with episodic paresthesias in both hands.
Medication wise, he is on Endep 25rng nocte, Lyrica 75mg bd, and Endone 2-3 p.r.n. He feels his medication does not always work. He remains averse to needle intervention or surgery.
On examination, his movements were stiff in his low back and neck. However, range was normal. He had pain in end range actively in his lumbar spine. Lower limb reflexes were normal. Straight leg raise was equivocal. Upper limb myotomes in C5-T1 were normal and Spurling's test was negative.
His symptoms are not clearly radicular in his cervical or lumbar spine and did not clearly correlate with his findings on imaging as reported.
I have discussed his condition and will refer him to a pain management program to help improve his movement mechanics and psychological coping. Physical reactivation strategies should be sustained. He will continue with his current medication regimen.[73]
[73] Exhibit P7, PCB 60-61.
102The plaintiff did not participate in the pain program.
103On 16 September 2015 Dr Baharam Bahrami Nejad, GP, recorded, “back pain. wants a letter for centrelink.”[74]
[74] Exhibit D3, DCB 50.
104On 19 October 2015 Dr Peter Semaan, GP, recorded that “Patient presents for a workcover certificate. Low back pain, currently seeing Melbourne pain group for management. No change of capacity since last review.”[75]
[75] Exhibit D3, DCB 50.
105On 3 May 2016 Dr Meshreky recorded that the plaintiff “has still lower back pain. referral to chiropractor. if not helping referral to specialist. Prescription: Voltaren. Lyrica.”[76]
[76] Exhibit D3, DCB 52.
106On 7 December 2016 Dr Meshreky provided a report to Shine Lawyers:
Hamid Ahmadzai presented to the clinic with lower back pain. He works at Regal in air conditioning manufacturing. he often left heavy air conditioners which weight up to 15 kg. On 7 September 2014, he was repacking a pallet and moving motors around when he had sudden onset of pain going to his buttock/posterior aspect of the left lower limb. Hamid presented to Berwick hospital with the pain. l have seen him after that with persistent pain where he had ct scan to his lower back, referral is made to Dr John McMahon[neurosurgeon].Hamid had MRI with the specialist, he is been diagnosed with small L5/S1 disc prolapse with adjacent to left S1 nerve root.
Hamid been given management in the form of analgesia & physio, surgery was an option if the pain persistent.
Hamid is better all the time except if he start to do any work include lifting, bending or sitting for long time.
regarding the prognosis it is good as much as he is not working but there is chance that he might need to go for the decompression operation if he start to do any manual work.
Hamid might need to go back see Dr McMahon for another assessment re his pain.
copy of all the specialist result is included.
His current medications are:
neuro fen daily prn
Endone 5mg prn
Endep 25 mg at night.[77]
[77] Exhibit P5, PCB 65.
107On 13 December 2016 Dr Meshreky recorded that the plaintiff was suffering from “pain in the lower back. \increasing. getting too tight. o/e. limitation of flexion. he request referral. Actions: Imaging request printed: ct lumbarspine. (follow up disc prolapse)”.[78]
[78] Exhibit D3, DCB 53.
108On 24 February 2017, Mr McMahon provided a report to Shine Lawyers that addressed his involvement with the plaintiff:
When Mr Ahmadzai was reviewed on 10 December 2014, his left sided sciatica symptoms had been improving and I did not recommend surgical intervention at that time. However, I did recommend that if his symptoms worsened over the weeks and months to come, he would then require a left L5/S1 microdiscectomy and decompression of the left S1 nerve root.
I will address your specific questions in this report.
1. When did Mr Ahmadzai first seek treatment from you in relation to the injury and what was the stated cause of the injury, if any?
Mr Ahmadzai initially consulted with me on 6 November 2014. The cause of the injury had been that on or about early September 2014, he was repacking a pallet which involved physical work activities and he developed left sided buttock pain and back pain, and was subsequently found to have a left L5/S1 disc prolapse.
2. What was the initial diagnosis and what is the current nature of Mr Ahmadzai's injury/ condition?
Mr Ahmadzai's diagnosis is that of an acute left L5/S1 disc prolapse with compression of the left S1 nerve root. When he was last seen on 10 December 2014, he described ongoing left sided buttock pain which intermittently radiated to his posterior thigh and plantar aspect of his foot. This was completely consistent with the diagnosis as stated above. Due to his symptoms improving, he did not require surgical intervention.
3. Was the injury caused or materially contributed to by the nature of his employment?
Mr Ahmadzai has been involved in very physical work activities at Regal in air conditioning manufacturing. He is required to lift repetitive weight of approximately 15 kg multiple times each day. He did not have any relevant past history of previous lumbar spine symptoms or pathology prior to being involved in the work-related accident. I therefore would conclude that his work at Regal is a significant contributing factor to the development of the disc prolapse.
4. Is Mr Ahmadzai suffering, or has he suffered, from incapacity to work by reason of his injury/injuries?
Mr Ahmadzai has been unable to work since early September 2014 due to ongoing pain and lower limb sensory disturbance. His work involves physical work activities and it is therefore reasonable that he has had to remain away from work because of the risk of aggravation and worsening of his symptoms.
5. When did Mr Ahmadzai last seek treatment from you and what, in your view, was his capacity for work at that time? Were there any restrictions on Mr Ahmadzai's capacity for work and if so, what were they?
Mr Ahmadzai was last seen on 10 December 2014. At that time he was totally incapacitated from returning to any of his previous work activities or any other type of physical work activities. If his symptoms had continued to settle over the next few months, then he could return to work with very light work activities and various work restrictions. Desk and office-type work would therefore be possible depending on any ongoing symptoms.
6. What treatment have you provided to Mr Ahmadzai and is there any further treatment proposed by you? If so, what is the nature of that treatment?
The mainstay of Mr Ahmadzai's treatment is that of pain management including analgesic and anti-inflammatory medications as required. He has not required any form of surgical treatment, although if his symptoms did worsen and persist, then he was to be reviewed for consideration of a left L5/S1 microdiscectomy and decompression of the left S1 nerve root. Other treatments such as physiotherapy and hydrotherapy may well be beneficial in the future.
7. Do you anticipate that Mr Ahmadzai will be able to return to his previous employment? If so, when?
This is a very difficult question to answer. Given his ongoing symptoms, I feel that he probably will remain totally and permanently unable to return to his previous work activities at Regal where is expected to lift weight up to 15 kg, sixty to seventy times each day. I feel that this type of physical work, which would involve a lot of bending and twisting, and work below knee height and work above head height with excessive weight, would put him at risk of further disc prolapse and nerve root compression. I therefore would conclude that Mr Ahmadzai is likely to require permanent light work activities with various restrictions. These would include not being involved in repetitive work below knee height, repetitive work above head height and trying to minimise bending and twisting. He would also have a lifting restriction of 5 kg to 10 kg in the future.
8. What are the current effects of the injury/injuries on Mr Ahmadzai's lifestyle and ability to perform normal activities of daily living, if any?
Mr Ahmadzai has been mild to moderately inconvenienced with regard to his recreational activities and activities of daily living. An assessment by a Chronic Pain Management Specialist or Rehabilitation Specialist could better address this question.[79]
[79] Exhibit P6, PCB 67-69.
109On 9 April 2017, Dr Shum provided a report to Shine Lawyers that addressed the following questions he had been posed:
A. My diagnosis: Hamid presented with chronic non-specific low back pain in the setting of a work injury. He did not fulfill criteria for complex regional pain syndrome or neuropathic pain. Hamid was at moderate risk of maladaptive cognitive and psychological barriers contributing to his pain.
B. Whether the injuries are consistent with his stated cause? Yes according to his prior recorded history.
C. An estimate of Hamid's present and future capacity for work:
Within my relatively brief contact of care with Hamid, my understanding of his functional capacity for work is limited.
Within the scope of average daily activities of daily living, in personal domestic and basic community tasks, Hamid is independent.
However, I believe at time of assessment that he was not able to perform activities in a useful, sustained manner of a usual duration required for the physical nature of his work such as in bending, lifting, pushing, pulling, overhead activities, kneeling, squatting or crouching.
Hamid can be considered for capacity in alternative duties, but this should be independently accessed within occupational tasks.
D. Prognosis and estimate of future medical treatment: Hamid would benefit from multidisciplinary Input to facilitate management of pain education, mechanical aspects of his low back pain, psychological and mood adjustment to a chronic pain condition and prevention of further disability.
A return to work plan should be formulated in conjunction with his progress.
His prognosis Is limited by the chronicity of his history, and a previous failed attempt at return to work.
E. Whether Hamid is receiving appropriate treatment and what other assistance is available to provide benefit? At time of assessment he was receiving appropriate treatment and referral to a multidisciplinary pain management service. Further medical review is required to assess ongoing needs in pain management.[80]
[80] Exhibit P7, PCB 74-75.
110On 4 July 2017, Dr Meshreky recorded that the plaintiff “has lower back pain. increasing. discussed physio. back on lyrica”.[81]
[81] Exhibit D3, DCB 54.
111On 15 March 2018, Dr Meshreky recorded that the plaintiff presented with “lower back pain. chiropractor. Action: Prescription printed: Endep 25 25mg Tablet 1 Daily... Lyrica 25mg Capsule Twice a dday... Endone 5mg Tablet 1 in the evening p.r.n... Viagra 100mg Tablet Stat p.r.n”.[82]
[82] Exhibit D3, DCB 55.
112On 2 October 2019 Dr Dilruba Wadud GP recorded, “pain in left arm mostly at night. nil chest pain. nil SOB. had CT cervical spine. There is no focal disc protrusion seen at any level. There is no bony encroachment of the spinal canal or neural exit foramina. No evidence of neural compromise. Minor anterior osteophytes are noted at the L3/L4 level. discussed. advised to have Physiotherapy. analgesia. Reason for visit: Left arm pain”.[83]
[83] Exhibit D3, DCB 57. The note appears to comprise a mix of matters noted on attendance and earlier imaging.
Dr Ales Aliashkevich
113Dr Aliashkevich is a neurosurgeon and spinal surgeon who provided a medico legal report for the plaintiff dated 24 August 2020.[84] In his report Dr Aliashkevich addressed the plaintiff’s background, explained the examination he performed, recounted the imaging that he had been supplied and expressed his opinions in answer to questions posed by the plaintiff’s solicitors.
[84] Exhibit P8.
114Dr Aliashkevich said that he performed a limited visual examination of the plaintiff as it was conducted via Zoom, but nonetheless, he wrote that the plaintiff was observed to mobilise freely. He could squat halfway. The range of movements of his lumbar and cervical spine was almost normal with the lumbar flexion possible to 90°, extension possible to 15° and lateral tilting possible to 30° to both sides.
115Dr Aliashkevich considered the imaging he had been sent and recited the findings of the same as follows:
Lumbar CT on 4/3/2011 (Dr Mark Cooper, radiologist):
Multi-planar images were obtained.
There is no focal disc protrusion seen at any level. There is no bony encroachment of the spinal canal or neural exit foramina. No evidence of neural compromise. Minor anterior osteophytes are noted at the L3/L4 level.[85]
[85] Exhibit P8, PCB 88.
Lumbosacral CT on 2/9/2014 (Marina Radiology ID: 310275):
Findings: Scans were performed from the T12/L1 level to the top of S2.
There is mild facet arthropathy at L1/2 and L2/3 and other levels.
At L2/3, there is a small posterior central disc protrusion with mild thecal compression. This is more prominent slightly to the right of the midline.
At L4/5, there is a mild left-sided posterior and posterolateral disc bulge and protrusion with mild thecal compression and bulging of the lower portion of the left foramen which is slightly narrowed.
At L5/S1, there is a further mild left-sided posterior disc bulge and protrusion, with mild thecal compression involving the descending left S1 nerve root. There is slight bulging of the lower portion of the foramen which is slightly narrowed.
Conclusion: Disc lesions on the left side posterolaterally at L4/5 and L5/S1, and centrally and slightly to the right at L2/3.[86]
[86] Exhibit P8, PCB 89.
Lumbar MR on 14/11/2014 (MIA ID: 12.29155721):
Technique: Sagittal T1 and T2 and axial T2 and fat saturated T2 imaging of the lumbar spine.
Findings: At L2/3, a minor disc bulge indents the thecal sac. At L3/4 and L4/5, the central canal and neural exit foramina are capacious.
At L5/S1, a tiny left paracentral disc protrusion contacts and most likely irritates the left S1 nerve.
The neural exit foramina are also capacious.
The facet joints are normal. No pars defect is identified.
Conclusion: Lumbar disc degeneration with a tiny left paracentral protrusion at L5/S1 contacting and most likely irritating the left S1 nerve.[87]
[87] Exhibit P8, PCB 89.
Cervical MR on 4/3/2015 (Marina Radiology ID: 310275):
Clinical Details: Pain in neck with signs of radiculopathy of the left hand. ? nerve compression.
Technique: Saggital T1, T2. Axial T2.
Findings: No previous imaging available for comparison.
Cervical spine and cerebellar tonsil signal is unremarkable.
Normal alignment of vertebral height seen.
Minimal anterior and posterior spondylosis seen from C3 to C5.
Mild broad based disc protrusion seen from C3 to C6 in conjunction with posterior spondylosis causes bilateral C3/4 osseous neural exit foramen narrowing and likely bilateral C4 neural impingement.
Otherwise no evidence of spinal canal stenosis or neural impingement.
Remaining disc levels are unremarkable. Prevertebral soft tissues are unremarkable.
Impression: Mild anterior and posterior spondylosis from C3 to C5. Small broad based disc protrusion from C3 to C6. Bilateral C3/4 osseous neural exit foramen narrowing due to osteophyte disc complex likely causing bilateral C4 neural impingement.[88]
[88] Exhibit P8, PCB 89-90.
116Dr Aliashkevich diagnosed the plaintiff as presenting with:
Chronic lower back pain
Chronic left leg pain
Chronic neck pain
Intermittent upper and mid back pain
Chronic pain syndrome
Suspected central sensitisation
Cervical and lumbar spondylosis
L5/S1 disc degeneration, annular tear and left paracentral protrusion with S1 nerve root irritation
Bilateral C3/4 foraminal stenosis with C4 nerve root impingement
History of work-related injury on 7/8/2014 and in the course of employment
History of depression.[89]
[89] Exhibit P8, PCB 90.
117Dr Aliashkevich considered the plaintiff’s employment in general, and the stated incident in particular, as materially contributing factors to a significant exacerbation of a pre-existing degenerative condition of the lumbosacral spine. However, Dr Aliashkevich was unable to identify strong evidence that the plaintiff’s neck pain was related to the stated incident.
118In response to the question if he considered the diagnosed injury to have an organic basis for contributing to the plaintiff’s chronic pain, Dr Aliashkevich said:
aggravation of the pre-existing degenerative disease and annular tear at L5/S1 with nerve root irritation could be considered as the likely organic contributors to your client's chronic pain. Although I'm not a qualified pain specialist or rheumatologist but based on the character of your client's symptoms with widespread pain distribution I had an impression that the injuries have started a cascade of chronic pain syndrome, typical for central sensitisation. In my opinion, your client is experiencing the pain amplification/distortion from the development of central sensitisation on a background of maladaptive nociceptive response which is outside of my neurosurgical expertise.[90]
[90] Exhibit P8, PCB 91.
119Dr Aliashkevich was asked if he believed that the plaintiff’s diagnosed organic injury is likely to deteriorate in the long term, or contribute to a higher rate of degenerative change than usual. Dr Aliashkevich said that:
With the chronic character of your client's symptoms and with his reduced tolerance of exercises, he is likely to experience further deconditioning of his muscles, spine and joints. It may lead to a deterioration of his condition with the progression of degenerative spinal change. It may also have a deteriorating impact on his working, social, domestic, and recreational life. I cannot rule out the possibility of him to require ongoing physical and medical therapy, and even possible pain interventions to manage such deterioration.[91]
[91] Exhibit P8, PCB 91.
120Dr Aliashkevich recommended that the plaintiff pursue conservative treatment such as obtaining an up-to-date MRI of the whole spine in order to visualise the anatomy of the nerve roots, intervertebral discs and facet joints; flexion/extension x-rays of the cervical and lumbar spine to rule out possible underlying instability; a consultation with a neurosurgeon/spinal surgeon to analyse the results of the suggested investigations and depending on the results of the above investigations, to consider diagnostic/therapeutic interventional pain strategies (e.g. steroid injections) or surgery. He recommended a neurologist with regards to the plaintiff’s chronic headaches; a consultation with an occupational specialist and a pain specialist in order to consider participation in a multidisciplinary pain management program as well as ongoing treatment with a psychologist or psychiatrist. He suggested Pilates, physiotherapy, hydrotherapy, exercise physiology, occupational therapy, myotherapy and cognitive behavioural therapy.
121Dr Aliashkevich believed that the plaintiff’s prognosis was guarded because, as he explained it, the plaintiff:
suffers from chronic back and neck pain and requires further investigations and treatment, as outlined above. He has several prognostic red flags and predictors of unfavourable long-term outcome:
-only partial response to previous conservative treatment,
-depression,
-possible central sensitisation,
-involvement in a work-related injury, and
-litigation.
I am uncertain whether he will be able to achieve full functional recovery in the foreseeable future.[92]
[92] Exhibit P8, PCB 92.
Defendant’s medical evidence
Dr Elder
122Dr Elder is a Specialist Consultant in Occupational & Environmental Medicine who conducted a physical examination of the plaintiff. In a report dated 12 September 2017 he said that he “performed an impairment assessment for the accepted lumbosacral spine injury…”[93] He addressed the plaintiff’s history of presenting conditions, current symptoms, current treatment, past medical history, occupational history, social history and his activities of daily living.
[93] Exhibit D1, DCB 18.
123In addressing the plaintiff’s social history, Dr Elder wrote that the plaintiff told him that his hobby had been to attend the cinema a lot but now he can only do so occasionally. The plaintiff told him that that he was not undertaking any exercise and has no sports.
124In recording the plaintiff’s account of his activities of daily living, Dr Elder wrote that the plaintiff is able to drive any type of vehicle. He is unrestricted in his activities of daily living and is completely independent in self-care. The plaintiff did not describe any sitting, standing, or walking restrictions.
125On physical examination, Dr Elder reported that in his opinion, the plaintiff presented with abnormal illness behaviour with his range of motion being diminished but not congruent between formal and informal examination. The plaintiff, Dr Elder said, was able to undertake a seated straight leg raise of 90° with no discomfort and he preferred to sit forward with his legs outstretched rather than lying down when Dr Elder was testing sensation.
126Dr Elder reported an absence of abnormality in power, sensation, reflexes, clonus, or plantar response and there was no asymmetry in the plaintiff’s limb measurements. He identified guarding and dysmetria, that is to say, an abnormal coordination of movements, in the right side erector spinae musculature.
127Dr Elder’s assessment was that the plaintiff “has mechanical low back pain with no clinical evidence of radiculopathy.”[94] In short, Dr Elder was unable to identify the plaintiff’s pain as attributable to an underlying cause.
[94] Exhibit D1, DCB 18.
Associate Professor Esser
128In a medico legal report prepared at the request of the defendant’s solicitors and dated 14 June 2022,[95] Associate Professor Esser, Orthopaedic Surgeon, detailed the plaintiff’s accident, his present complaints, his regime of medications, his social life and recreational interests, his employment history together with findings on examination.
[95] Exhibit D2, DCB 22-30.
129Associate Professor Esser said that he was not aware that the plaintiff had any pre-existing injuries. He made the following diagnosis:
I think this man does not have any significant lumbar spine signs, but has significant symptoms. I thought there was a significant variation in this man's presentation to when he walked in, and when he walked out, which was suggestive of illness behaviour. This man has had an episode of lumbar intervertebral disc pathology, but I do not think he continues to present with any convincing signs of this condition.[96]
[96] Exhibit D2, DCB 28.
130Associate Professor Esser considered it unlikely that the plaintiff’s current situation had been materially contributed to by his accident. With respect to treatment in relation to the lumbar spine he reported that “I think this man needs to be managed non-operatively with appropriate psychological, or perhaps psychiatric help. I think a modification of his employment goals would be appropriate.”[97]
[97] Exhibit D2, DCB 28.
131Associate Professor Esser thought that the plaintiff’s prognosis was “fair only.”[98] He noted that the plaintiff had “been diagnosed with depression, and he was off work up until about 2016 with this condition.”[99]
[98] Exhibit D2, DCB 28.
[99] Exhibit D2, DCB 28.
132On examination he reported:
He had a somewhat subdued and depressed affect throughout the entire interview. He was extremely slow to take his clothes off, and get on and off the examination couch, and walked slowly around the room.
…
I note his gait was normal, but somewhat slow, and he was slow to take his clothes off. He was also slow to put his clothes back on again.
I thought his range of lumbar spine movements were somewhat excessively reduced to approximately 50 percent of the range of lumbar spine flexion, extension, lateral flexion to the right and left, and rotation to the right and left.
On examination of his lower limbs, power, tone and reflexes were equal and normal. There was no sensory deficit that I could detect in either the right or left lower limbs.
Both quadriceps and ankle reflexes, were equal and normal. The plantars were downgoing in both lower limbs.
I noted at the end of the interview, this man walked out of the room quite quickly, and confidently, a marked contrast to when he walked into the room.[100]
[100] Exhibit D2, DCB 25-26.
133Associate Professor Esser said that he thought that there was very little by way of objective signs from his physical examination of the plaintiff from which he could determine that the plaintiff was feigning illness or exaggerating but “however, there was a significant difference from his appearance in the examining room, and walking out of the examining room, which is very suggestive of illness behaviour, or feigning of illness.”[101] Associate Professor Esser concluded that the plaintiff “has a combination of depression and illness behaviour, and he has no significant signs suggestive of continuing lumbar spine pathology.[102]
[101] Exhibit D2, DCB 28.
[102] Exhibit D2, DCB 29.
The plaintiff cross-examined
134Mr Churilov in the course of his opening, foreshadowed that so much of that part of the defendant’s case that addressed the question of “range,” as it is sometimes colloquially referred to, would not represent the highwater mark of the defendant’s case, although his submissions on the point would address the extent of the plaintiff’s retained capacities, including for lighter physical work, and the level of the pain that the plaintiff suffers by his own account and the manner in which it has been described by doctors who have examined the plaintiff, along with his prescribed regime of medication and his credit. It was to this suite of issues that Mr Churilov’s cross-examination was largely directed.
135The plaintiff was questioned about the period in March 2011 when he experienced back pain and left hip pain that had commenced at work and Dr Meshreky’s opinion that he had presented with signs of left-sided sciatica. The plaintiff said that this pain resolved. When asked if from about March 2011 and after this initial pain resolved and until 7 August 2014, he recalled having pain anywhere in his spine, he said, he did not.
136Following the incident on 7 August 2014 he said that he developed lower back pain that radiated down his buttock and down the back of his left leg.
137He said he had no specific memory of Ms Huerta, the physiotherapist to whom he was referred by his GP and of whom he deposed to in his affidavit, but said that he was willing to accept the truth of her comment that he had reported to her experiencing minimal symptoms for three days, but previous to that having pain with restricted movement. The plaintiff also agreed that he had deposed in his first affidavit that his symptoms temporarily improved with Ms Huerta’s physiotherapy treatment.
138Ms Huerta on 20 August 2014 recorded that the plaintiff was feeling significantly better, and was wanting further physiotherapy. The plaintiff said he could not remember this and he was unwilling to accept the accuracy of her assessment.
139The plaintiff agreed that he attended on Dr Sadaf Khan on 1 September 2014 for a sore back when gardening the previous day.
140The plaintiff accepted that he saw Dr Meshreky recorded on 2 September 2014, “Has trouble with his back, lower back pain increasing, the pain is referred to the thigh”.[103]
[103] Exhibit D3, DCB 40.
141The plaintiff was challenged about the accuracy of paragraph 18 of his first affidavit and the prescribing of medication by Dr Meshreky on 2 September 2014. He deposed that, “She prescribed me Endone, five milligrams every six hours, Lyrica, 75 milligrams twice a day, Panadeine Forte, two every six hours and Voltaren, 50 milligrams, three times a day”.[104] However, Mr Churilov told the plaintiff that there is no record that Dr Meshreky prescribed Endone or Lyrica that day. The plaintiff maintained that he had been prescribed Endone by Mr Meshreky on his first attendance but added, “maybe on the first week, because I couldn’t work, I couldn’t…”[105]
[104] Exhibit P1, PCB 9.
[105] T24, L4-6.
142The plaintiff was asked if he recalled whether by the time he saw Mr McMahon on 10 December 2014 his left sided sciatica was improving in light of Mr McMahon’s report that, “Mr Ahmadzai was reviewed on 10 December 2014, his left side sciatica symptoms had been improving, and I did not recommend surgical intervention at that time.”[106] The plaintiff disputed this and said that his left sided sciatic symptoms were worsening and not improving.[107]
[106] Exhibit P6, PCB 67.
[107] T25, L14.
143The plaintiff was questioned about the onset of neck pain. Mr Churilov identified that neck pain was first recorded by Dr Meshreky many months after the 7 August 2014 incident and on 25 February 2015. The plaintiff described “a minor neck pain…so maybe I didn't notice.”[108]
[108] T28, L14-15.
144Dr Meshreky referred the plaintiff for an MRI scan of the neck on 25 February 2015 that was performed on 4 March 2015. The plaintiff recalled discussing the results of the MRI of the neck with Dr Meshreky. The plaintiff agreed that although Dr Meshreky referred him back to Mr McMahon, he did not take up the referral.[109]
[109] T30, L24.
145The plaintiff was asked about Dr Shum. The plaintiff deposed that he attended Dr Shum in September 2015 for potential admission into a pain management course at the Victorian Rehabilitation Centre. The plaintiff’s affidavit evidence included that Dr Shum told him that he did not need to attend the pain management course because he was receiving appropriate treatment. However, in his oral evidence the plaintiff said Dr Shum asked him to undertake pain management but he was unable to afford it due to “my family commitments”.[110] The plaintiff said that a few months ago he tried to obtain entry into pain management but it was not approved by WorkCover.
[110] T30, L31.
146Mr Churilov put to the plaintiff that his attendances for medical care at the Stud Road Medical Centre, in the period from 20 October 2015 to 25 April 2016, did not record references for either back, or neck pain, however, in February 2016 he saw a doctor for a sore throat, and attended for dental pain in March 2016. Mr Churilov further put to the plaintiff that based on clinical notes from 4 May 2016 to 13 December 2016, he had not attended for lower back pain.
147Mr Churilov put to the plaintiff that on 30 June 2015 Endone ceased being prescribed and that the most recent prescription of Endone prior to 30 June 2015 was given on 30 December 2014. When asked how often he was taking Endone at the end of 2014 and in the first half of 2015, the plaintiff said two or three a week.[111]
[111] T34, L17-18.
148Mr Churilov also put to the plaintiff that in the period 1 July 2015 to 25 April 2016, that is, a period of almost 10 months, he was not prescribed Voltaren, Lyrica or Endone. The plaintiff said that there may not have been “much on medication because I was at home, nothing to do”.[112]
[112] T35, L26-27.
149On a clinical attendance on her by the plaintiff on 7 December 2016[113] Dr Meshreky recorded that she stopped prescribing Panadeine Forte, Endep for his mental state, Paroxetine, an anti-depressant, Voltaren and Lyrica.
[113] Exhibit D3, DCB 53.
150The plaintiff accepted that from 2016 to 2020 he had performed cable laying work, first whilst directly employed by Australian Fibre Tech Pty Ltd and then via his company, Eyebright Fibre Tech Pty Ltd. He agreed he did heavy work.[114]
[114] T43, L14-23.
151Mr Churilov directed the plaintiff to a report from Dr Meshreky to the plaintiff’s solicitors dated 7 December 2016[115] in which she wrote that the most recent occasion that the plaintiff presented with back pain prior to her report was in May 2016. The plaintiff agreed that from May to December 2016 he had been working.
[115] Exhibit P5, PCB 65.
152Mr Churilov directed the plaintiff to his attendance on Dr Meshreky on 13 December 2016 with pain in his lower back and which prompted Dr Meshreky to refer him for a CT scan.
153In January 2017 Dr Meshreky once again prescribed the plaintiff Lyrica for the plaintiff’s pain.
154The plaintiff next attended Dr Meshreky in July 2017. In the period between January and July 2017 the plaintiff agreed with Mr Churilov that he had been working although he maintained that he was only laying cables “maybe once a - once a week, or…It was very rare, yes.”[116]
[116] T50, L31-T51, L3.
155Mr Churilov questioned the plaintiff about the examination conducted by Dr Elder on 12 September 2017. The plaintiff said that although he could not recall if Dr Elder asked him about his activities of daily life, he agreed Dr Elder correctly reported that he was independent in his activities of daily living and he also agreed with Mr Churilov that this has remained the case but he qualified his answer by adding that when he experiences pain his wife helps him in activities of personal care.[117]
[238] Exhibit P3, PCB 174.
314Although radiological evidence supports a reabsorbed protrusion at L5/S1, that is, a reduction in volume of herniation, I accept as Mr Ingram put it, that this is evidence that it has been reabsorbed “to a certain extent”[239] but I also accept that I should be reluctant to conclude that the result means that the L5/S1 disc does not remain a damaged disc in light of the plaintiff’s symptoms consistent with such injury and, moreover, when there is evidence to support the proposition that the L4/5 was also damaged in the incident on 7 August 2014 and itself represents a weakness in the function of the spine.
[239] T142, L23-24.
315However, I do not accept the broader principle expressed more generally by Mr Ingram and contended for as part of his subordinate submission which is that it follows that “subsequent evidence of revision of that disc that was first identified and progress in respect of other discs that may not have been implicated initially is no bar to a grant of serious injury for a spine injury.”[240] In my judgment, such a state of affairs may constitute a bar to the grant of relief, and it will depend on the evidence in each case, but that in any event, this is not such a case because I am satisfied that there is sufficient evidence to find that there was damage to more than a single disc in the injury in August 2014 and that the progression and deterioration seen between 2016 and 2021 as opposed to between 2014 and 2016, for example, is not a bar to this finding.
[240] T145, L2-6.
Jones v Dunkel
316An aspect of the case that the deferent submitted was relevant in a determination of the seriousness of the plaintiff’s injury was the criticism Mr Churilov levelled at the plaintiff’s failure to adduce evidence from witnesses and a submission that I should draw an adverse inference in accordance with the principles expressed in Jones v Dunkel.[241] Mr Churilov identified Dr Meshreky and the plaintiff’s brother both of whom are in the plaintiff’s “camp” from whom relevant evidence could have been expected to be adduced but was not.
[241] (1959) 101 CLR 298.
317The most recent reporting by Dr Meshreky to the plaintiff’s solicitors is from December 2021. Mr Churilov submitted that it would be open to me to infer that a more recent report by Dr Meshreky would not have been supportive of the plaintiff’s claim. I do not accept this submission.
318The ordinary course in the disposition of the hearing of a serious injury application is for a report by the treating doctor and having usually been obtained by the plaintiff’s solicitors to be tendered in evidence along with the production of the doctor’s clinical record or a combination of such evidence. This is the course that has been adopted in this application. Hence there is relevant evidence before the Court from the plaintiff’s treating doctor. It strikes me that the defendant’s criticism is better characterised as a failure by the plaintiff to have procured a more recent report from Dr Meshreky. This then directs attention to the sufficiency of evidence adduced by the plaintiff on the question of the currency of his of treatment and the form it has taken for the consequences of his injury rather than to enlivening the drawing of an adverse inference.
319The other person from whom the defendant submitted an adverse inference should be drawn by reason of the non-provision of evidence is the plaintiff’s brother. The plaintiff testified in his affidavit and in response to questions asked of him in cross-examination that he has had and he continues to need to call on his brother on occasions to assist him with executing heavy work. Mr Churilov argued that the fact of the plaintiff’s expressed need to do so in consequence of pain from any compensable injury is directly relevant to an assessment of pain and suffering and that it would be reasonable to have expected the provision of evidence from the plaintiff’s brother. Mr Ingram sought to meet the criticism by noting that at a basal level the plaintiff was not challenged on his evidence of pain when undertaking certain work activities. Accordingly, Mr Ingram submitted, the question whether the plaintiff required his brother to assist him with heavier work does not arise because of the plaintiff’s unchallenged evidence of the experience of pain at times in his work and, therefore, the omission is not one that should give rise to the principles governing the drawing of an adverse inference. I accept Mr Ingram’s submission.
Plaintiff’s credibility
320It is convenient at this stage to address the issue of the plaintiff’s credibility which the defendant brought into play to a considerable degree. I accept that there are discrepancies in aspects of the plaintiff’s oral evidence arising from cross-examination when compared with his affidavit evidence. However, not all of the variations in evidence that Mr Churilov highlighted are of an equal measure of importance. For example, I am not persuaded that the difference between the contents of the plaintiff’s affidavit evidence that he had not played soccer since the incident in August 2014 and his oral evidence that he had played soccer with his children in the backyard and with people other than his children but that he estimated had lasted no longer than 10 minutes and occurred possibly one or two years ago is of much moment and the same may be said of the accounts given of swimming.
321Of greater relevance is the reliability of the plaintiff’s account of the extent of his consumption of medicines and the nature and constancy of his pain in light of the evidence from the subpoenaed records of the prescribing of medication and the periods of non-attendance by the plaintiff on his local doctors for complaints of back pain despite attendances by him for other conditions.
322Variations in the number of prescriptions for medication to ameliorate the plaintiff’s back pain, and the extent of their consumption by him in light of his evidence, is relevant as it may affect the overall picture whether the plaintiff has proved that the consequences not only as they impact him but when assessed according to the range of consequences for like impairments are serious. Allied to this is an assessment of the evidence concerning the frequency of the plaintiff’s attendances on Dr Meshreky or other doctors at the O’Shea Medical Clinic.
323It is reasonable that the defendant challenged the accuracy of the plaintiff’s description of the disabling effects of his pain in light of the frequency and reasons for his attendances on doctors. The plaintiff agreed with Mr Churilov that he had experienced pain at times that coincided with the occasion of a number of doctors attendances for unrelated health matters and he agreed it could be expected he would have complained of the same, and yet on the dates Mr Churilov identified, there is no reference to back or to neck pain. I am satisfied that on the occasions the plaintiff saw a doctor for other matters his back pain was not of such an order to have been raised by him or, if it was, then it was not recorded by the doctor and, inferentially, at least, because the doctor did not think it warranted the same. I am satisfied that encompassing the times during which there was no attendance on a doctor and on the dates the plaintiff attended a doctor for other health matters, he was working, and one may also reasonably infer from the plaintiff’s evidence that he was likely to have encountered occasions during these times when work would have triggered exacerbations of his pain.
324It is unfortunate that the plaintiff’s affidavit deposing to a frequency of medical attendances for his back injury and of prescribed medication proved unreliable and in some respects wrong. Of course, it need not follow that the absence of specific attendances for back pain during the periods of time referred to, or of complaint of the same on occasions of other attendances, means that the plaintiff was not living with pain of the nature he described. He was receiving alternative therapy and he said he was paying for his own massage treatment and he was taking over the counter pain medications. I accept that logically there have been periods of time that he could not have been taking Endone as frequently as he deposed based on an examination of the clinical records referred to by Mr Churilov.
325On the matter of prescribed medication the plaintiff produced medications in re-examiantion. I see no reason to exclude a finding that the plaintiff continues to receive Endone under prescription and that he has received Endone in the period following the last of the dates of the subpoenaed clinical records. The date on the box from which the medicine was produced is supportive of the plaintiff being prescribed pain relief other than Endone after the date of the tendered clinical records although a date for the Endone the plaintiff had with him in Court could not be ascertained. Certainly a better ascertainment of the regime of medicine could have been obtained by an updated report from Dr Meshreky but I am not persuaded that the lack of the same results in the state of the evidence as so lacking as to exclude me arriving at a conclusion that the plaintiff has an ongoing requirement for prescribed pain relief.
326After consideration of the evidence overall, and having observed the plaintiff and listened carefully to his evidence, I am not satisfied that the discordance between his oral evidence and his affidavit evidence reflected an intention to give untruthful evidence. Had this been his intention it would have proved a forlorn exercise given the subpoena powers to produce clinical records as transpired. I am satisfied that the plaintiff intended to give an honest account of himself. In arriving at this conclusion, I have made some allowance for the fact that the plaintiff did not exhibit ease with the English language. I have also assessed favourably the plaintiff’s honesty by also taking into account that several of his answers could be construed as against interest.
Seriousness
327There is no single factor alone against which the seriousness of the consequences of an injury may be determined. The verb “range,” that is so often deployed in a consideration of serious injury applications, is underscored by appreciating that there are gradations within a range and in order to succeed it is not a requirement that one need not be assessed as falling at the top of the range, so long as properly judged, the consequences are within range. Furthermore, the oft quoted passages from Haden Engineering Pty Ltd v McKinnon[242] (‘Haden’) bear repeating:
The evidentiary basis of the pain assessment will ordinarily comprise the following:
(a) what the plaintiff says about the pain (both in court and to doctors);
(b) what the plaintiff does about the pain (eg medication, rest, seeking medical treatment);
(c) what the doctors say about the extent and intensity of the plaintiff’s pain; and
(d) what the objective evidence shows about the disabling effect of the pain.
As to (a), the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility. The Court will make its own assessment of the plaintiff’s credibility if he/she gives evidence, and will also take into account views expressed by examining doctors about the reliability of the plaintiff’s accounts of pain.
As to (d), the cases recognise that some plaintiffs may be more ‘stoical’ than others. This means that such a plaintiff is, to an unusual degree, prepared to endure pain in order to maintain a desired level of function. The injury suffered by the ‘stoical’ plaintiff is not to be viewed as any the less serious merely because he/she manages to remain more active than might have been expected given the level of pain. In such a case, the ‘objective’ evidence of the disabling effect may be of less significance than usual.[243]
[242] (2010) 31 VR 1.
[243] Ibid [11]-[13] (citations omitted).
328In addressing the disabling effect of pain, the Court of Appeal said:
As to the disabling effect of the pain, it is necessary to identify the extent to which the pain limits the plaintiff’s physical functioning, and interferes with the plaintiff’s enjoyment of life. As this Court (per Ashley JA) said in Dwyer (No 2): ‘… [I]mpairment is concerned with what has been lost. But the significance of what has been lost … may be informed, to an extent, by what is retained.[244]
[244] Ibid [14].
329Also, the Court of Appeal said this:
Capacity for work aside, assessing the extent to which the pain interferes with the ordinary activities of life will typically involve consideration of its effect on the plaintiff’s:
• sleep;
• mobility;
• cognitive functioning (whether directly because of the pain or indirectly because of the effects of pain-relieving medication);
• capacity for self-care and self-management;
• performance of household and family duties;
• recreational activities;
• social activities;
• sexual life; and
• enjoyment of life.
Whether and to what extent the matters listed are relevant to the court’s task in a particular case will, naturally, depend on the circumstances of the case.
When judging the pain and suffering consequences for the plaintiff by comparison with other cases, it is relevant to look at the plaintiff’s life expectancy in order to determine the likely period for which those consequences will be experienced.[245]
[245] Ibid [16]-[17].
330Bearing in mind the guidance that is afforded me from authorities such as Haden, I now address the considerations that emerged from the evidence on the question of seriousness.
331Ms Huerta on 20 August 2014 recorded that the plaintiff was feeling significantly better, and he was wanting further physiotherapy. The plaintiff said he could not remember this and nor was he willing to accept the accuracy of Ms Huerta’s assessment of his presentation. Given the fact plaintiff would continue to receive prescribed medicines for his back pain, I am of the opinion that such improvement as Ms Huerta reported, and the plaintiff experienced, was transitory at best. His quarrel on her assessment of him at that time is not significant.
332Dr Meshreky 3 September 2014 recorded, “Has trouble with his back, lower back pain increasing, the pain is referred to the thigh”.[246]
[246] Exhibit D3, DCB 40.
333In 2015 the plaintiff told Dr Brown that his symptoms had improved somewhat and Dr Brown thought that the plaintiff appeared to be making gradual progress, however, Dr Brown also reported that the plaintiff still had significant symptoms and incapacity. In December 2016 Dr Meshreky reported that the plaintiff could not undertake his routine activities without pain and that he was unable to play sport as doing so aggravated his pain.
334In September 2017 in recording the plaintiff’s account of his activities of daily living, Dr Elder wrote that the plaintiff was able to drive any type of vehicle and was unrestricted in his activities of daily living and completely independent in self-care. Dr Elder wrote that the plaintiff had not described to him any sitting, standing, or walking restrictions. It is unclear from the report if Dr Elder intended to convey that having asked the plaintiff questions on these specific matters the plaintiff did not disclose any restrictions, or if Dr Elder meant no more than the plaintiff had not volunteered restrictions in these abilities.
335The plaintiff said that although he could not recall if Dr Elder asked him about his activities of daily life he said he was independent in his daily living and that this has remained the position, although, he qualified his answer by adding that when he experiences pain his partner helps him in certain activities of personal care. There are other evidentiary accounts that disclose adverse effects on the plaintiff’s activities of everyday life that are more consistent with accounts the plaintiff has given as opposed to Dr Elder’s expressed absolutism.
336In re-examination, and in addressing the reporting by Dr Serry of the plaintiff’s account to him of pain, Mr Ingram elicited that the plaintiff’s minimum pain level is 4 out of 10 and that he is prone to experience flare ups of pain up to 10 out of 10 and if Endone is taken it will dull the pain to a 7 or 8 out of 10.
337I am satisfied that the plaintiff’s pain can vary in intensity from a low to a mid-level pain and such a variable extent of pain is the norm but that he also continues to experience episodes that can be intense and last for some time that Endone can diminish somewhat. I am satisfied that to function of a day with chronic pain experienced at the levels described by the plaintiff, and whose account of its frequency and variable intensity I accept, is a significant matter.
338I am satisfied that the plaintiff’s work, to which he has commendably remained committed, is on occasion, a trigger for pain. I do not consider it to be realistic for the plaintiff to invariably be able to call on his brother to help him in the event there is heavier work to perform or that assistance in a familial form will always be available to him. In short, it is because of the ongoing effects of the compensable injury that the plaintiff experiences flareups when undertaking work. I consider that it is a significant matter that in the working years that lie ahead of him the plaintiff will need to be on guard and will require the ability to be able to access assistance when required.
339I accept that the evidence does not support a finding that prior to his injury the plaintiff participated in a broad range of recreational or sporting pursuits, something that so often features prominently in serious injury applications but neither did the plaintiff did seek to portray himself in such a way. The evidence from his partner, for example, suggests that the plaintiff was very committed to his children, and when coupled with work, his discretionary time was understandably restricted. However, the plaintiff spoke of his participation in soccer, swimming and the gym. I accept that in regard to each of these that he has fundamentally lost the ability to engage in them as he could have expected but for the effects on him of the damage to his spine.
340I find that the plaintiff’s back condition has impacted his capacity as a father to interact in play with his children. However, naturally enough, as his children grow, the ordinary shiacking that he might have been involved with in their younger years will lessen.
341It does seem from the preponderance of evidence that the plaintiff is capable of attending to many of his personal needs largely unassisted. However, the plaintiff’s partner’s affidavit explained that on occasions she needs to help him with his showering because of his back pain and to walk him into the shower where he sits on a chair while she bathes him. The plaintiff also deposed that he receives her assistance to shower because he struggles to reach his back and to bend down to his lower legs, and as well, that she helps him dress, in particular, with putting on his shoes and socks because he struggles to reach that far.
342The plaintiff’s partner needs to be on hand to apply anti-inflammatory cream to his back. She also addressed the adverse effects on their intimate life in consequence of the plaintiff’s pain.
343The plaintiff deposed to experiencing unrefreshed sleep but there is evidence to suggest that this has improved.
344The plaintiff is restricted in being able to undertake heavy shopping and he must rely on his partner for tasks that an able bodied person may take very much for granted such as lifting groceries into the boot of car or assisting with heavier tasks about the home. The plaintiff despite endeavouring to do what he can to manage the garden is dependent to a large degree on his oldest son for the mowing of the lawn.
345The plaintiff is relatively young, and there is greater reason than not, to anticipate that he will continue to carry his level of impairment and pain and restriction into his future life.
346I am satisfied that the plaintiff’s injury is permanent. Given the nature of the defendant’s defence it is understandable that no submission to the contrary was advanced.
347Because of my principal findings, it has not proved necessary to address a number of other of the plaintiff’s submissions. For example, Mr Ingram placed store in the acceptance by the defendant of the plaintiff’s Injury Claim Form for multiple discs. Mr Churilov submitted that in any event liability was accepted for the lower back and psychological condition[247]. Had it been necessary to do so, I would not have been persuaded that the principle discussed for example, in Ansett Australia Ltd v Taylor[248] was enlivened by the acceptance.
[247] Exhibit P14.
[248] [2006] VSCA 171.
348Because I am satisfied and find that that the plaintiff suffered an organic injury on 7 August 2014 that remains the author of the consequences experienced in his ongoing life he was not required to have undertaken a disaggregation. I am not satisfied that the plaintiff was required to and therefore failed to adduce evidence from a pain specialist or rheumatologist to support a diagnosis of chronic pain syndrome to account for symptomology as was adverted to by Dr Aliashkevich. Furthermore, I am not satisfied that observations by defendant practitioners of “abnormal illness behaviour” represents an empirical diagnosis of the condition referred to.
349I find that the condition of the cervical spine is not attributable to the work processes in which the plaintiff was employed or by the lifting incident on 7 August 2014 incident and I have excluded the consequences attributable to the neck in assessing pain and suffering consequences not because the cervical spine calls to be separated out from the lumbar spine but because the evidence of injury in this region of the spine regardless of the two constructs of injury the plaintiff advanced is lacking and, moreover, the plaintiff attributes little at all to the effects in his neck.
Conclusion
350For the reasons expressed, I am satisfied that the plaintiff is entitled to the grant of a certificate for pain and suffering due to injury to his back sustained in his employment on 7 August 2014 with the same having caused an impairment to the function of the plaintiff’s spine and which injury is permanent and has brought with it consequences that when judged by both their effect on the plaintiff and according to the range of like impairments is more than significant or marked, and is at least very considerable.
351I will hear the parties on the final form of orders and costs.
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