Al Janahi v Victorian WorkCover Authority
[2021] VCC 246
•16 March 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-19-02445
| HAIDAR AL JANAHI | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 and 5 February 2021 | |
DATE OF JUDGMENT: | 16 March 2021 | |
CASE MAY BE CITED AS: | Al Janahi v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 246 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – impairment to the lumbar spine and left shoulder – pain and suffering and loss of earning capacity – credit
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited: Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Church v Echuca Regional Health (2008) 20 VR 566; Woolworths Ltd v Warfe [2013] VSCA 22; Cakir v Arnott’s Biscuits Pty Ltd [2007] VSCA 104; Kelso v Tatiara Meat Company Pty Ltd (2007) 17 VR 592; Peak Engineering & Anor v McKenzie [2014] VSCA 67; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Acir v Frosster Pty Ltd [2009] VSC 454; Advanced Wire & Cable Pty Ltd & Victorian WorkCover Authority v Abdulle [2009] VSCA 170
Judgment: Leave granted to bring proceedings for damages for pain and suffering and loss of earning capacity.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C W R Harrison QC with Ms J Zhu | Zaparas Lawyers |
| For the Defendant | Mr P D Elliott with Mr P Trigar | Thomson Geer Lawyers |
HER HONOUR:
1This is an application brought by Originating Motion by which the plaintiff applies for leave pursuant to the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) to bring proceedings to recover damages for injuries suffered by him arising out of his employment with EB Transport Pty Ltd (“the employer”) which occurred on or about 20 June 2016 (“the said date”).
2The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury”. The relevant body functions are the lumbar spine and left shoulder.
3Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.
4The impairment of body function must be permanent, in the sense it is likely to continue into the foreseeable future.
5Under the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments, may be fairly described (at the date of the hearing) as being “more than significant or marked” and as being “at least very considerable”.[1]
[1]Section 325(2)(c) of the Act
6I am required to consider the consequences to this particular plaintiff viewed objectively arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
7The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, the Act imposes specific burdens in relation to a claim for loss of earning capacity.[2]
[2]Section 325(2)(e)(i)-(ii) of the Act
8In this application, where there is a claim for loss of earning capacity, that loss must be to the extent of 40 per cent or more, both at the date of hearing and permanently thereafter. The formula by which loss of earning capacity is to be measured is set out in s325(2)(f) of the Act.
9Questions of rehabilitation and retraining must be considered in whether the 40 per cent loss has been established.[3]
[3]Section 325(2)(g) of the Act
10I have applied the principles edified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[4] and Haden Engineering Pty Ltd v McKinnon[5] in reaching my conclusions.
[4](2005) 14 VR 622
[5](2010) 31 VR 1
11The plaintiff relied on two affidavits and was cross-examined. Further, the parties relied on medical reports and other documents which were tendered. I have read all the tendered material, and also viewed video surveillance of the plaintiff during the hearing.
12The plaintiff’s focus was on the application in relation to the lumbar spine. Although the left shoulder application was not withdrawn,[6] submissions were made in relation thereto.
[6]Transcript (“T”) 2
13Credit was a significant issue in this application, as was the plaintiff’s capacity for employment.
The Plaintiff’s evidence
14The plaintiff is presently aged thirty-two, having been born in November 1988 in Iraq. He is married with three children. He is presently in receipt of Newstart payments, which commenced in February 2019.[7]
[7]Plaintiff’s bank records
15At the age of six, the plaintiff and his family fled to Saudi Arabia during the Kuwait War. After a year there, they moved to Iran, where the plaintiff was a refugee until about the age of nineteen. As a refugee, he was not entitled to formal schooling, and a neighbour’s daughter taught him the basics in Arabic.
16In Iran, the plaintiff sold clothes with his father, who came to Australia when he was about fourteen. The plaintiff stayed in Iran with his mother and siblings, selling clothes to support his family.
17In about 2008, the plaintiff did about three months of English lessons in Iran before arriving in Australia in about June that year on a reunion visitor visa to join his father. On arrival, he did a further three months’ English study at the TAFE division of Victoria University. In about 2009, his father became ill, so he stopped studying to care for him.
18In about 2015, the plaintiff completed a security guard course of about one-and-a-half month’s duration. He could not do anything before getting his security licence in 2015 because he had to look after his ill father. The security course went for a month. It was in English, but as his English was not good enough, he had to stay behind an extra week to finish the course. He attained a Certificate II. He also obtained a heavy rigid truck licence before starting security work. He thought he obtained the licence from DECA after a three-week course.[8] An interpreter helped him with his driving test.[9]
[8]T25
[9]T28
19Thereafter, the plaintiff signed up with an employment agency and after a few months, worked intermittently as a security guard on a casual basis at venues like the MCG. When working at the MCG, he just had to stand near a storage door. He worked odd days here and there at other places but could not recall where. Once he applied for work at a factory, and they sent him away because of his English. He thought he worked a couple of days.[10]
[10]T27
20Because the security work was not regular, he applied for a job with the employer, having heard about it through a friend who worked there.
21The plaintiff started with the employer in about early 2016. The job interview was in English. To work there, he had to buy a truck, but he was provided with a uniform and ID badge. He followed another driver for about four days to see how the documentation and deliveries worked.
22The employer paid per job. The plaintiff was given a list of jobs every morning. He worked Monday to Friday, usually from about 5.00am to 5.00pm or 6.00pm. As at the said date, he was earning about $1,028 gross on average a week.[11]
[11]Same figures in his second affidavit. However, the plaintiff relied on wages set out in claim forms.
23The plaintiff delivered a range of items, but mainly foodstuffs. He did deliveries solo after the pallets had been lifted onto his truck by a forklift. Sometimes, however, he had to unload the truck by hand if there was no forklift available. The parcels weighed from 10 kilograms to 30 kilograms. Particularly in the city, he had to manually carry parcels off the truck and put them on a trolley on the ground and push the trolley to the place of the delivery. The size of the delivery varied and it took about three hours to unload a full truck.
24The plaintiff had some difficulty with his job with the employer and had to sometimes call his manager to help. The delivery documents were prepared by the employer. The plaintiff took the delivery, got the client just to put their name and sign. Because the employer knew the plaintiff’s English was limited, they had put his orders in the order they were to be done. His English has improved slightly since then.[12]
[12]T32
25On the said date at about 8.30am, the plaintiff attended an Altona warehouse to collect a large pallet of juice concentrate. The drums each weighed about 33.5 kilograms and were stacked on top of each other. There were about thirty-two drums on the pallet, secured by a plastic wrap. The pallet weighed about 1.1 tonnes.
26The pallet was loaded onto the plaintiff’s truck by a forklift and he secured it to the truck tray with rope and then drove to another Altona warehouse. When he arrived there, he realised the plastic wrap had broken and the drums were everywhere in the truck. He started to repack the pallet, but halfway through repacking, the drums fell down again. While he was restacking he lifted two drums, one in each hand, and felt a sudden onset of lower back pain of a burning type. He also felt a sudden stabbing sharp pain in both shoulders, but the left was more painful (“the incident”).
27Due to his back and shoulder pain, the plaintiff called his manager and explained what happened, and was told to stay where he was. An ambulance came and took him to Sunshine Hospital, where tests were undertaken and he was given some painkillers during his three to four-hour attendance.
28The plaintiff was unable to go to work the next day because of pain, but went back after one or two days because he thought the pain would go away. The employer told him he needed a medical certificate clearing him for work, so they sent him to a specific doctor nearby. That doctor examined him and checked his level of movement and he was told he could go back to work. The plaintiff was keen to do so because he needed the money to support his family and also he thought the pain would slowly get better.
29The next day, the plaintiff tried to work for about half the day, but the pain was too great and he told his boss he could not continue. Either that day or the next, he saw a general practitioner at Medical One in Sunshine (“Sunshine”), whom he believed was Dr Mehtari, who gave him some painkillers and told him to have a CT scan.
30The plaintiff was offered a job with the employer working with computers and sorting some paperwork but he could not continue because of his pain and medication. He initially worked two hours a day, two days a week, and increasing to three hours a day, three days a week. He did these duties for maybe a month and a half, or two months, but he could not continue because of the pain in his back and shoulder and also the medications he was taking.[13]
[13]T34
31The plaintiff saw Dr Ali Ziabari at Sunshine, who told him he had a problem with his disc and referred him to a specialist and gave him some painkillers. He told the plaintiff he could not go back to work and gave him a certificate.
32In about August 2016, the plaintiff saw Mr Maartens, neurosurgeon, who told him he had a problem with his disc and needed surgery. He explained to the plaintiff there were two types of operations: one would cut the disc and the other would take it out altogether and replace it with a plastic one.
33The plaintiff was given similar advice by Professor Bittar from who he obtained a second opinion. He had not had the surgery as he was scared it would make things worse.
34In about November 2017, the plaintiff had a nerve block injection in his left shoulder and lower back. It provided temporary relief in his left shoulder but it did not help his lower back pain.
35In about February 2017, the plaintiff went for a multidisciplinary pain management assessment, however, this did not proceed, as surgery had been recommended.
36In about May 2018, the plaintiff’s general practitioner referred him to psychologist, Mr Sharpe, to help him with his sadness and his difficulty coping with pain. The plaintiff only saw him for a few months.
37As of 4 December 2018,[14] the plaintiff was generally seeing his general practitioner about once or twice a month, depending on his pain levels. He was having physiotherapy about fortnightly, but had reduced visits, as treatment was not helping. He also did hydrotherapy about once a week and saw a psychologist, Ms Jamal Chemaissem, every three to four weeks.
[14]First affidavit sworn
38Dr Ziabari prescribed Targin, one tablet twice a day for back pain. The plaintiff also took Endep, 50 milligrams, one tablet at night and in the morning, to help with the pain when he was sleeping and for depression. He took Lyrica, 300 milligrams, one capsule a day, to help with nerve pain.
39The plaintiff last saw Professor Bittar in about July or August 2020, when he reviewed his radiology. Professor Bittar no longer recommended the microdiscectomy surgery and there are now no plans to operate on the plaintiff’s back.
40The plaintiff had a further formal pain management program with Dr Ong in April 2020 for four weeks and continues under his care. For a while in mid 2020, he was seeing him weekly.
41The plaintiff continues to see Dr Ali Ziabari but last saw him a while ago because of COVID-19.[15]
[15]T65
42Dr Ong continues to prescribe the plaintiff’s medication but he has not seen him since mid November 2020. He saw his psychologist, Ms Chemaissem, until some time in 2019. He was awaiting a psychiatrist’s appointment organised by his general practitioner.
43As of November 2020,[16] the plaintiff took Lyrica, 750 milligrams, two tablets a day; Endep, a 150-milligram tablet and one 10-milligram tablet every day; Tramadol, 50 milligrams about two or three times a week; Panadol, a few tablets about three to four times a week, and Naproxen, one to two 750-milligram tablets as required, when experiencing increased pain.
[16]Second affidavit sworn
44The plaintiff no longer takes Tramadol because he had issues with it. He takes Lyrica and Endep, Panadol and also Naproxen prescribed by Dr Ong.[17]
[17]T33
45Medication helped the plaintiff to sit but there was still pain. After about 30 minutes, he started getting the pain. That was what he was experiencing during the hearing, but he was using a hot water bottle just behind his back.[18]
[18]T31
46The plaintiff’s doctor was trying to decrease the dosage, because his concentration level went really down.[19] His doctors were trying to cut down his medication. He knew it was “about [his] kidneys and how they were being affected badly”. In the past, he had had strong Endone, which he had stopped. He had also had Lyrica, which was also strong, and it had been stopped. He then said he was continuing on those medications, but their dosage had been changed. Tramadol had been ceased.[20]
[19]T31
[20]T60
47The plaintiff agreed he had had a lot of different types of treatment, starting with physiotherapy on his shoulder and back, but it made things worse, and that is why he stopped it, but he obtained some benefit from hydrotherapy. He continues to do one of the exercises his physiotherapist gave him.[21]
[21]T41
48The pain management programs helped him in some areas, like how to live with the pain. He confirmed he completed all of them when it was suggested to him that he had not. He attended most of his appointments, apart from those where he was really sick and unable to leave home.[22]
[22]T47
Pain
49As of late 2018,[23] the plaintiff had pain in his lower back and left leg nearly all the time. It fluctuated and sometimes was worse than at other times. It was a burning sensation and he often found he had numbness in his left leg which could go down to his toes. His right shoulder pain came and went but the pain in the left was there most of the time and the shoulder pain felt like a hot fire.
[23]First affidavit sworn
50The plaintiff felt discomfort and increased back pain and left leg numbness when he sat more than twenty to forty minutes in the same spot and needed to re-adjust his position and/or stand up. He also felt increased back pain when he walked for more than about forty to fifty minutes and walking on slopes could aggravate his back pain.
51Currently, the plaintiff continues to suffer from pain in the middle of his back and down his left leg. This is his worst current pain. It is always there, but sometimes it gets worse. It tends to be a burning sensation and he also gets numbness in his left leg. On a bad day, he struggles to even get out of bed.
52At times, he has severe pain where he cannot leave the bed for two or three days, but he has days when he is better and he can go out and go for a walk, so it fluctuates – good and bad days – but overall it is not much better than before.[24]
[24]T38
53Left shoulder pain continues and is constant. It is a burning type of pain and he often has a loss of grip strength in his left hand and drops things. Occasionally, he also has right shoulder pain. Again, some days are better than others. There are some days he cannot even hold a glass of coffee and loses his grip and it falls to the ground. On other days, he can lift and hold something small.[25]
[25]T39
Rehabilitation
54As part of his rehabilitation post-incident he did an English course at St Albans for a few weeks but could not continue because it involved sitting down for a long time. While doing that course he was taking a range of medication.[26]
[26]T29
55While the plaintiff could stand up at will during English classes, on some days he experienced very bad pain, to the point where he became very agitated and he wanted to hit his head against the wall.[27]
[27]T31
Work future
56Since the injury, the plaintiff had tried to go back to work, but his back and shoulder pain increased too much and he had to stop work. He was unable to work in his pre-injury duties and believed he would struggle to work in suitable alternative employment and as a reliable employee, because of his back and shoulder restrictions and symptoms
57If not for his work-related injuries, the plaintiff would have acquired a semitrailer in 2017, enabling him to do bigger jobs and for bigger companies. He also would have continued to work full time and work at least until aged sixty-seven.
58The plaintiff’s spoken English is moderate and he is not good at reading and writing in English. He sometimes needed help to fill out forms, depending on what is required. He understands and speaks some English, but his written English is poor. He does not have the experience and training needed for an office job and he does not believe he is currently fit even for part-time work.
59At home, he has used English-language tapes. His English is much better than before, but still limited. He was able to understand what was being said in court, but not everything.[28]
[28]T32
60The plaintiff continues to be off work. He has been in receipt of Centrelink since 2018. They have asked him to go for job interviews, but he has not been able to.
61Centrelink has asked him to look for work many times. They sent him to a company called “at Work”, and he was given a piece of paper and asked to list names and numbers and the type of work that he had been looking for, but he “was not able to continue with that”. They asked him what sort of jobs he was able to do in the past, and he told them security work and truck driving. He told them there was nothing else. He agreed he had been on Centrelink since 2018.[29]
[29]T38
62The plaintiff cannot bend over repetitively and struggles to twist his lower back. He can stand for about twenty to thirty minutes and sit for thirty to forty minutes. He can walk for about half an hour. After that, his pain increases and he needs to change positions frequently.
63The plaintiff finds he lacks concentration and memory, which he thinks might be an effect of his pain or medication.
64The plaintiff does not think he could do a security guard job because of “what … [he] was suffering right now mentally, and because of all the medications … [he] was on”. Sometimes he had episodes of crying, or sometimes he thought he became depressed, or isolated himself, even from his family.[30]
[30]T32
65The plaintiff has not looked for any work since because of his “medical condition, the pain experienced in … [his] back, shoulder, leg, and also … [his] mental condition”. He had pain in both shoulders, but now it is mainly on the left, and on the right “sometimes it got better”.[31]
[31]T34
66When asked whether he was prepared to give it another go to get a job, he said he is in the same condition, his pain and condition have not improved – “I was waiting for it to improve to try something, to try it again, but it’s the same condition I have then.”[32]
[32]T40
Weekly payments and taxation details
67The plaintiff thought his weekly payments were to going to cease in December 2018, but payments continued until 4 April 2019.[33] He received a paper telling him the payments were being stopped, and the employer called him and told him they would be stopped in December. He applied for Centrelink, because he had to pay his bills, and after that, he found out payments were still coming into his account from the employer. He told the lady manager he was still getting the payments, and they said “Yes, we do this payment. This is help for the drivers.”[34]
[33]December 2018 printout - $742 per week, ceased in June 2018
[34]T49
68The plaintiff was shown his taxation returns from 2016 to 2019. He had not worked at all since leaving the employer.[35] He sold his truck somewhere around 2017 or 2018.[36] He agreed he had to sign something when putting in his taxation return. He did not read it. He does not read and write well in English.[37]
[35]T52
[36]T53
[37]T55
69The plaintiff went to his accountant and asked him to do his taxation return. That is all he knew.[38] One accountant did his taxation return in 2017 and 2018, and another one in Glenroy did his more recent one.[39]
[38]T55
[39]T57
Activities
70Pre-injury, the plaintiff helped his wife with general housework. He helped a lot with looking after the children, including bathing them and changing nappies. He also helped around the house with tasks like vacuuming and did most of the outside work, mowing the garden, pruning the trees and growing vegetables.
71Post incident, he had found it difficult to help his wife with housework. It hurt too much to vacuum. It was difficult mowing because of pain in both his shoulders and back, but occasionally he did some light gardening, such as watering plants. He now relied on his brother or neighbours to help him mow the lawn.
72The plaintiff can now do light chores at home, like making coffee or cooking eggs, but his wife does the heavier chores like vacuuming. He can do some light gardening on a good day.
73Pre-injury, the plaintiff kept chickens and quails for laying eggs and took care of them with his children. Post-injury, he had to get rid of the birds because they required lifting which was difficult with his back and shoulder pain.
74Pre-injury, the plaintiff regularly went shopping with his wife and children and helped her with the groceries. Post-injury, he went shopping a lot less as he found lifting the shopping aggravated his back and shoulders.
75Pre-injury, the plaintiff enjoyed playing with his children when he arrived home after work. He used to pick them up and swing them around and generally be physical with them and push them on the swings. He looked forward to coming home to play with them. Post-injury, because of his back and shoulder pain, he was not able to be as physically involved with them as he used to be and that made him sad. These difficulties continue.
76Pre-injury, the plaintiff had a regular sleep pattern of between seven to eight hours a night, but since then found it more difficult to get to sleep, and after having done so, would wake after about two hours because of back and shoulder pain and would constantly move positions to try and get more comfortable. This situation also frustrated his wife and, as a result, they recently started sleeping in separate rooms so she could get a good sleep.
77The plaintiff’s sleep continues to be disrupted and he frequently wakes with pain and finds it hard to concentrate and feels tired during the day.
78The plaintiff’s pain has also had a large effect on his intimate relationship with his wife. Pre-accident, they had an active sex life, but it was now significantly reduced because of his pain and also because he was usually in a bad mood or difficult to get along with because of his pain, and this usually meant his wife was not interested in being intimate with him.
79Post injury, because of back pain and also his medication, the plaintiff’s concentration and memory had reduced and he found he forgot a lot of things he was told or meant to do.
80Pre-injury, the plaintiff was quite fit and active. He played volleyball once a week. He sometimes played indoor soccer with friends and went swimming about fortnightly. Post-injury, he found it difficult to play volleyball due to back and shoulder pain. It was also difficult to play soccer, and he rarely went swimming.
81Before the injury, the plaintiff had an active social life and often went on picnics and barbecues with other families. Post-injury, he was involved in these activities a lot less because he found the lifting required aggravated his shoulder pain. He also avoided social interaction because the pain in his back and shoulders made it difficult for him to concentrate and socialise. These difficulties continue.
82Pre-injury, the plaintiff was a happy, healthy and fit person. Thereafter, he found he was more short-tempered and not as tolerant. His confidence was reduced, he felt frustrated with people and his pain caused him general unhappiness. He feels anxious and depressed about his situation and ongoing symptoms and restrictions and worries about his future and ability provide for his family.
83Pre-injury, the plaintiff enjoyed driving. The family went often on drives to see friends or go to the beach. Post-injury, he was only able to drive for shorter periods. Generally, the longest was up to an hour. Doing so could be quite uncomfortable for his back and legs. Now, after driving, his back was stiff, and he needed to stretch to reduce the pain. His left leg could become numb. He still used both hands to drive, but if his left shoulder was particularly painful, he tended to use the right more and sometimes if the back and/or shoulder pain were severe, he would not drive. His wife did not have a licence, so the family went out on less trips.
84The plaintiff agreed he tended to drive locally, and that driving more than 30 minutes brought on pain,[40] but there were a few times where he drove “for a bit”.[41] He had a car and he could drive it. The family have two cars. His wife is learning to drive in the second car.[42]
[40]T39
[41]T64
[42]T62
85On a good day, the plaintiff wakes up at about 10.00 or 11.00am, has a coffee and breakfast and takes his medication. He either sits down or rests on the couch, or goes out in the backyard, or to a doctor’s appointment. That is nearly what he would do in the morning. His wife is at home looking after their children, now aged two, four, and six. She takes them to school very nearby. Sometimes he picks them up when he can. During the day, he watches television when he can.[43]
[43]T59
86The plaintiff does things at home. On a good day, he goes out the front yard or the back yard or goes for a walk. He does things, but it depends when he has the ability to do so. Sometimes he cannot walk around the back yard. He can do a bit of cooking, make some coffee or light things. He goes shopping with his wife and drives her to the shops whenever they need food. When he is feeling good, he can drive, and he takes his wife. He can lift the shopping when he does not have a strong pain in his back. He can take out a small bag and help her and put it in the back of the boot. He was aware Dr Ong had imposed a 5‑kilogram lifting limit. It is possible it would only be lighter bags that he would put in the car, and his wife would put in the heavier ones.[44]
[44]T63
87The plaintiff had an accident in August 2020, when his brother was mowing the lawn and asked him to help with the mower. Having been asleep and taken his pain medication, which made him a bit hazy and confused, the plaintiff accidently put his left hand under the running mower and suffered a big cut on the side of his left ring finger. He went to hospital. His finger was operated on the day after the accident, temporarily attaching it to the middle finger. Three weeks later, further surgery was required to separate the finger and apply a skin graft.
88The plaintiff needed to see a hand therapist until October 2020. He still gets occasional pain in the left hand and has difficulty bending the ring finger.
Surveillance
89The first film of the plaintiff was taken on 18 May 2019.[45] He was shown getting two baby seats out of the back of the car. He was next shown at a Caltex petrol station filling his car with petrol.
[45]Exhibit 1
90The plaintiff could not remember driving to Portarlington Road, Leopold, that day. He could not remember the man he was shown on the film talking to there and giving some money.[46] He “could not see it properly, it was very, very slow”. He could not remember any of this. He could not recall what he was talking to the man about.[47]
[46]T67
[47]T70
91The plaintiff then said he remembered now, but he could not remember the place. One of the boxes contained a small air-conditioner.[48] He thought the man was asking him for help to put the box in the car, and he explained to him about his shoulder and his back. He was bending, showing the man where he had pain and how he could not help him. He just remembered it now, after he saw the box. He remembered he got to the place by GPS and obtained the address from Facebook. He paid the man $250 for the item.[49] He could remember driving to this location.[50] The man asked him to help him. The plaintiff explained to him, as you could see in the video, he was bending and showing him he had a pain in his back, lower disc back, and the problem he had with his shoulder.[51]
[48]T70
[49]T71
[50]T72
[51]T73
92The plaintiff no longer has the air-conditioning unit. He did not recall what had happened to it. It was three years ago. It was sitting in the garage, and he thought maybe his nephew took it. He did not remember if he sold it or gave it to his brother. He denied he could have sold it to someone.[52] He has not bought items on Facebook and sold them for profit.[53]
[52]T73
[53]T74
93Further film on 26 November 2020[54] showed a number of cars outside the plaintiff’s house. The yellow car was his and the white car belonged to his brother. The plaintiff agreed he had moved a battery from one car, and he was putting it into another – his brother’s car, and he had taken it out of his own car. He then said he could not see it and that he could not remember what he was doing. He had no idea if he was fitting it in the other car – “[He] just put it on the floor and that was it.”[55]
[54]Exhibit 2
[55]T76
94The plaintiff then agreed that there was a battery on the ground. He could not remember what was happening with it. He thought he was trying to close the bonnet, but it did not close. When he was asked whether he had a tool in his right hand, he said he thought he was trying to close the bonnet.[56] He then said he did not put the battery in his brother’s car, he “put it on the floor.” He did not recall what was the situation, but he thought “maybe I wanted to get rid of it or something”.[57] He denied that the battery sitting on the ground could be the old battery he had taken out of the car.[58]
[56]T76
[57]T77
[58]T77/78
Treatment
95The ambulance reports set out that the plaintiff –
“... was lifting some heavy items on his truck when he felt a sudden burning pain in his lower back and R) shoulder blade. No fall, head strike or LOC. Pt walked to tea room and became SOB. AV called.”
96The plaintiff then reported pain at 10 out of 10 but was able to walk to the ambulance without assistance. Lumbar region pain was described as “burning” – he “denied radiation – and aggravated by inspiration and movement”. Right scapular pain was described as “burning”.
97When the plaintiff presented to the Emergency Department at Sunshine Hospital, his problem was lifting heavy weights from trucks, sudden onset burning, lower lumbar pain. An x‑ray of the shoulder was undertaken.
98The diagnosis was “loin pain / low back pain / low back strain / lumbago”. The plaintiff was complaining of back pain and right scapular pain. He was discharged with Panadeine Forte and ibuprofen, and the general practitioner was to review in two days and refer to physiotherapy.
99Dr Ziabari from Medical One Sunshine (“Sunshine”), has treated the plaintiff since about December 2015. The plaintiff presented on 27 June 2016 with low back pain when seen by a colleague. Dr Ziabari took over the plaintiff’s care on 4 August 2016.
100As of 6 November 2016, Dr Ziabari thought that the plaintiff was not fit for any duties due to his lumbosacral disc prolapse. He would be suitable for modified duties absent his back condition, despite his shoulder conditions. This work would involve no heavy lifting or no repetitive movements.
101As of November 2017, he thought the plaintiff had a current work capacity and was fit for part-time light duties as specified in the Certificate of Capacity. In December 2017, he thought the plaintiff was fit for work as a rental officer, customer service officer, weighbridge attendant, motor vehicle spare parts interpreter, and CCTV patrol security officer, subject to the certificate.
102As of 4 June 2018, Dr Ziabari thought, as a result of his lumbar condition, the plaintiff was not fit for any work. He confirmed this view in a document dated 10 September 2018, setting out he thought the plaintiff suffered from severe pain of the lower back with poor mobility, rendering him unfit for work. At that time, the plaintiff was exploring surgical options.
103In his report of 16 October 2018, Dr Ziabari confirmed the plaintiff was presently not fit for any work as a result of his back.
104In his January 2021 report, Dr Ziabari noted from 30 September 2019, the plaintiff failed to visit for regular follow-ups until 5 August 2020, when there was a Telehealth consultation. The plaintiff advised of the left hand injury at that last appointment.
105Dr Ziabari understood during that period the plaintiff was having pain management. Since August 2020, he and the plaintiff had had three consultations, with two over the phone and one in person. Therefore, his answers would be based on past experience as well as medical reports from other doctors.
106Dr Ziabari diagnosed L5‑S1 disc prolapse disease with S1 radiculopathy pain, bilateral shoulder injuries, and bursitis and supraspinatus tendinitis, and depression secondary to chronic pain. He answered “No” as to whether there was an organic basis for the plaintiff’s left shoulder, right shoulder or spine symptoms.
107Dr Ziabari considered the plaintiff’s employment had been a contributing factor to the pathogenesis of his right and/or left shoulder condition. He thought the plaintiff would likely be precluded or restricted from the following because of his left shoulder injury:
· pushing, pulling or lifting
· repetitive pushing, pulling or lifting
· overhead activities
· gripping, holding or carrying
· typing, writing, or use of tools
· any other physical functions or motions.
108These restrictions would be to a moderate extent, and incapacity will continue for the foreseeable future.
109Dr Ziabari thought there were similar restrictions relating to the low back injury but to a severe extent, and that the incapacity will continue for the foreseeable future.
110In his view, as a result of the plaintiff’s recent work-related injury, he was likely to be precluded or restricted in relation to social, domestic, and/or recreational activities. The plaintiff was unable to enjoy most activities that would use his upper body. This incapacity was to a severe extent.
111To a moderate degree, the plaintiff’s pain, restriction, disability and incapacity relating to both shoulders derived from the physical or organic injury to the left shoulder. The incapacity will continue into the foreseeable future.
112Leaving aside any mental or behavioural aspects, and looking at the organic effects of the back injury only, the plaintiff’s pain, restriction, disability and incapacity derived from the physical or organic injury to the back to a severe extent. The plaintiff will continue to suffer the consequences and incapacities of the physical back injury for the foreseeable future.
113Dr Ziabari’s aim was to reduce the plaintiff’s dose of medication over a prolonged period. He thought the plaintiff is at an increased risk of degenerative change or osteoarthritis in relation to the lumbar spine injury, where there is a risk of secondary degenerative changes, but he was unsure about this issue in relation to the shoulders. The conditions were chronic, and the plaintiff had developed a severe secondary depression due to his chronic pain.
114Dr Ziabari was personally against surgery, as it was unlikely to provide any meaningful outcome, noting the plaintiff’s hesitancy to undergo surgery suggested by Professor Bittar and Mr Maartens but advised against by Dr Ghaly.
115In his most recent report in February 2020, Dr Ziabari explained that he had earlier misunderstood the meaning of “organic”, thinking that word meant the cause of the condition was not work related. He therefore amended his earlier report and stated that the plaintiff’s back and shoulder conditions had an organic basis and were related to his work.
Professor Bittar
116Professor Bittar first saw the plaintiff on 3 January 2017 at the request of his general practitioner for assessment of his back pain, which soon became associated with left leg pain. The plaintiff was later seen in March and July 2017, August and October 2019 and April and July 2020.
117Professor Bittar noted the results of the August 2016 MRI scan and the latter MRI scan in February 2017 demonstrated a left-sided disc prolapse at L5-S1, compressing the S1 nerve root.
118At the time of the initial review, Professor Bittar recommended a repeat MRI scan and review by pain specialist, Dr McCallum.
119On review in March 2017, the plaintiff continued to be troubled by lower back pain and left sciatica and remained totally incapacitated for work. An L5-S1 microdiscectomy was discussed.
120On review in July 2017, the plaintiff indicated a desire not to undergo surgery, and Professor Bittar recommended he be reviewed by Dr McCallum.
121The plaintiff returned in August 2019 on referral from his general practitioner. His symptoms had deteriorated over the previous two years and he reported ongoing lower back pain and left sciatica. Up to date radiological investigations and nerve conduction studies were arranged.
122On review in October 2019, in addition to complaining of lower back pain, the plaintiff was also complaining of neck pain and shoulder pain. Professor Bittar recommended that his lumbar spine be dealt with before looking too closely at his neck.
123The plaintiff returned in April 2020 complaining of neck pain radiating to his left arm, as well as lower back pain into his left leg. Professor Bittar recommended an opinion from neurologist, Dr Ghaly, in relation to the neck complaints. That practitioner subsequently recommended conservative management.
124On review in July 2020, there had been no significant change in the plaintiff’s condition. He had completed a pain management program and was seeing Dr Ong. He reported ongoing lower back and left leg pain.
125Professor Bittar then thought the plaintiff was currently totally incapacitated for work and he did not see this changing in the foreseeable future.
126In Professor Bittar’s view, the plaintiff presented with ongoing lower back pain and leg pain secondary to aggravation of lumbar spondylosis. He considered employment had been a continuing contributing factor, specifically the incident injury. In relation to his prognosis, the plaintiff had developed a significant chronic pain condition and was likely to continue to experience significant pain and disability into the foreseeable future.
127Professor Bittar thought the plaintiff had an organic basis for his lumbar spine related symptoms. He had sustained an aggravation of his pre-existing lumbar spondylosis and had most likely injured the intervertebral discs.
128As a consequence of the plaintiff’s back injury, he is likely to be precluded in relation to employment or activities involving forceful pushing or pulling or heavy lifting, repetitive pushing, pulling or heavy lifting, repetitive sustained bending, reaching, twisting or stooping and prolonged sitting or standing. This incapacity will continue for the foreseeable future.
129Professor Bittar thought the plaintiff does not have any current fitness for pre-injury employment or alternate suitable duties as a result of his spinal injury only. He did not consider that the plaintiff could be realistically employed in the open labour market as a settled and reliable worker, taking into consideration his back injury only.
130Professor Bittar concluded that the plaintiff’s condition is an aggravation of a pre-existing degenerative change and osteoarthritis. It is likely that those conditions will continue to progress as he ages, but it is difficult to predict the impact of the ageing process and the plaintiff’s work-related injuries on his long-term clinical course. On balance, he thought the plaintiff will most likely remain significantly symptomatic at around his current level into the foreseeable future.
Tyson Sharp
131Tyson Sharp, psychologist, reported in August 2017 about the plaintiff’s progress in the first pain management program.
132The plaintiff was diagnosed with an Adjustment Disorder with Mixed Anxiety and Depressed Mood in the context of injury, and a persistent pain condition.
133Mr Sharp noted the plaintiff did not complete the program. He was discharged in the context of making limited progress physically and psychologically. It was recommended he have his psychological symptoms monitored by his general practitioner with ongoing medical management of his condition.
Dr Ong
134Dr Malcolm Ong from Advance Healthcare first saw the plaintiff in February 2017 for further opinion and management of his multiple body area problems and related psychological trauma problems. He was seen mainly for pain management for his low back issues.
135After his four-week trial in the program, the pain team reviewed the plaintiff’s progress, and then a couple of weeks later it was decided he was unable to participate adequately and that he had failed to make any useful progress, and he was discharged.
136Dr Ong noted the plaintiff would need to wean his opiates and try to stay away from them long term. He was currently having issues with dependence, tolerance and addictions to opiates.
137Dr Ong thought the plaintiff’s projected capacity remained limited, with lifting under 5 kilograms, no repetitive duties, and no prolonged sit or stand. His maximum hours were two to three days a week, and three to four hours a day, in an office-based or sedentary role only. He was unfit for pre-injury duties where he was truck driving. These determinations were in relation to his physical injury.
138Dr Ong noted on 24 February 2017, the plaintiff currently felt he was unable to work due to pain and his limited capacity due to both his physical injury and secondary psychological condition alone or in combination. He noted the plaintiff had been moderately diligent with instructions.
139Dr Ong provided a further report in November 2020.
140After discharge initially in 2017, the plaintiff was referred back in October 2017 due to ongoing pain issues and opiate medication issues and for further management. Multiple different treatments and medications were tried, but he did not respond to them or the side-effects were to bothersome. Eventually, he felt he was ready to trial another program and hopefully to complete it in full. He was again assessed by the entire team, and later started on a program, but once again experienced difficulties with progress and medication issues and opiate addiction and reliance. He managed to do a few more weeks of the second pain program, but was unable to gain significant benefit or grasp the full potential and requirements of the program. He was an early discharge for the second time from the pain program in May 2020.
141The plaintiff completed the initial trial period for about four weeks, and later went to the second, more intense part, with the hope to escalate treatments further and provide him with more tools and education and methods to help him improve. The second part of the pain program commenced in April 2020, but the plaintiff managed to only participate in this for a few weeks, and then had the proper pain program cut short and was discharged in May 2020 to return to his usual treaters.
142Dr Ong again noted that the plaintiff had been advised to try to wean medications for many months, but he had a dependence on high doses and multiple medications and had trouble reducing or weaning them due to his pain level. Currently, the plaintiff still experiences physical symptoms and limitations, but is trying to manage his condition better, but having significant difficulty.
143The plaintiff’s main issues remain compliance issues, pain-focused mood disorder and reduced function. He also has medication issues and is unable to moderate his medications properly.
144The plaintiff was then, as a result of his left hand injury and also his back injury, precluded from any pre-injury duties. The plaintiff reported predominantly low-back pain and that his shoulder issues were either settled or resolved.
145With regard to his back, Dr Ong thought the plaintiff would be very limited with employment opportunities and unfit for either part or full-time employment. With any suitable duties being very limited, current capacity remained limited.
146Dr Ong noted the CAC 130‑week vocational report listed several duties, but most would be a limited possibility for the plaintiff with the necessary restrictions of lifting under 5 kilograms, no prolonged positions, no repetitive duties, no overhead or floor-level work, no bending or twisting duties, and maximum hours of two to three days a week, and three to four hours per day, with breaks. In those circumstances, it made it unlikely the plaintiff would be employable. He would be encouraged to keep weaning to a self-managed program after his pain program, but he was then having ongoing difficulties and had been slowly managing with this.
147As of November 2020, taking into account just the physical injury alone, the plaintiff had some, but very limited, capacity for very limited hours in either office-based or sedentary work.
148Dr Ong was generally in support of an occupational rehabilitation provider to assist in a return to work, but realistically, given the plaintiff’s conditions, his age, his limited education, his limited specialised skills, geographical location, availability, and choice of employment options and multiple other demographic factors, sourcing alternative other new employment would be a challenge in an open market.
149In his January 2021 report, Dr Ong commented on the AMA Consulting Labour Market Analysis. He noted that the three potential jobs of security concierge in the corporate environment, security concierge in a luxury apartment, and control-room security operator, appear to be appropriate for the limitations the plaintiff has with his shoulders; however, it must be within the restrictions previously suggested.
150Dr Ong noted, in respect of the lower back, that the injury the plaintiff sustained also affected his spine, so the same restrictions applied, especially with heavy lifting or repetitive bending or twisting tasks. He had a similar view as to the plaintiff’s capacity to do those jobs as in relation to his shoulders.
151The three options appeared to be appropriate for the limitations the plaintiff has with his lumbar spine; however, it must be within the restrictions previously outlined. Also, as mentioned above, some of it may appear appropriate, but some may not be suitable depending on the practical aspect of the job, and may only become apparent when the plaintiff commences the task to then assess if he is safe and able to perform that job.
152Dr Ong thought the plaintiff’s prognosis remains guarded, but it is likely he will suffer persistent pain symptoms, pain-related issues, secondary psychological concerns, and limited capacity for the foreseeable future.
Psychologist
153The plaintiff was referred to Ms Jamal Chemaissem, psychologist, by his general practitioner in July 2018. She diagnosed a Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood and thought the plaintiff was unfit for work from a psychological perspective.
Investigations
154The plaintiff had a lumbar CT scan in June 2016.
155It was reported there was broad-based posterior annular L4‑5 disc bulge without nerve-root compression. There was moderate left L5‑S1 bony foraminal stenosis that could impinge onto the left L5 nerve roots, with symptoms of left sciatica. It was suggested a CT‑guided left L5‑S1 foraminal nerve block with consultation can be performed for symptomatic relief. There was a broad-based posterior annular L4‑5 disc bulge without nerve root compression.
156There was an MRI scan of the lumbar spine in August 2016.
157It was reported there was left paracentral foraminal disc protrusion at L5‑S1 resulting in compression of the descending left S1 nerve in the subarticular recess and mild left neural exit foraminal stenosis.
158Professor Bittar organised an MRI scan of the lumbar spine in February 2017.
159It was reported there was left L5‑S1 disc bulge contacting and compressing the traversing left S1 nerve root in the subarticular recess with some accentuation of compression on weight bearing.
160A CT‑guided left L5‑S1 epidural was performed in November 2017.
161Professor Bittar arranged a further MRI scan of the lumbosacral spine in September 2019.
162At L4‑5, on the background of a shallow disc bulge, there was a focal central disc protrusion, no spinal canal narrowing, no compromise of the exiting L4 nerve roots, minor abutment of the traversing left L5 nerve root and mild lateral facet joint osteoarthritis. There was a shallow disc bulge at L5‑S1. There was no spinal canal narrowing or compromising of the exiting L5 nerve roots. There was a minor abutment of the traversing S1 nerve roots by the intervertebral disc. No significant changes were noted in the extent of the aforementioned disc contour abnormalities, when comparing standard and weight-bearing sequences.
163Following a left shoulder ultrasound in July 2017, it was reported there was probable subacromial bursitis, although no bursal bunching occurred with dynamic scanning, and there was no rotator cuff tear or tendinosis.
164A left shoulder x‑ray of 6 September 2017 revealed no bony joint or soft-tissue abnormality. An ultrasound of the left shoulder in September 2017 showed rotator cuff tendons were intact. The impression was no discrete rotator cuff tear identified.
165There was an ultrasound-guided left shoulder cortisone injection in November 2017. Left shoulder ultrasounds were carried out on 10 October 2019 and 17 June 2020.
Medico-legal evidence
166Dr Meena Mittal, pain physician and specialist anaesthetist, saw the plaintiff in August 2019.
167The plaintiff then reported low back pain to be the most severe rating, at 7 out of 10 at rest and 10 out of 10 on movement. There was a complaint of bilateral shoulder pain, with the complaint of pain on the left worse (5 out of 10 at rest), with 3 out of 10 in the right.
168Low back pain was most likely myofascial with underlying facet joint pain. Left lower limb pain was secondary to the left S1 nerve root compression and irritation. Shoulder pain was secondary to underlying bursitis.
169Dr Mittal considered there was definitely an organic basis for the plaintiff’s pain.
170Dr Mittal listed physical activities in relation to which he was likely to be precluded or restricted in relation to employment. With the spine, those included pushing, pulling, or lifting; repetitive pushing, pulling or lifting; bending, reaching, twisting or stooping; prolonged sitting, standing or walking; and any other physical functions or motions. With the upper limbs, those included pushing, pulling or lifting; repetitive pushing, pulling or lifting; overhead activities; gripping, holding or carrying; typing, writing, use of tools; any other physical functions or motions.
171The extent of incapacity was severe for the lower back, and less severe for the left and right upper limb. This incapacity was likely to continue for the foreseeable future; however, it could be reviewed once the plaintiff had had further treatment. She also thought he was likely to be precluded or restricted in relation to social, domestic and/or recreational activities to a severe extent.
172Dr Mittal did not believe the plaintiff was at an increased risk of degenerative change or arthritis. His prognosis was poor, as he had had an extended period of time over which he had had chronic pain without adequate treatment.
173When re-examined in October 2020, the plaintiff had completed the pain management program, which he reported was of minimal benefit.
174On examination, there was obvious paravertebral muscle spasm and restricted flexion
175Dr Mittal confirmed her earlier views as to the plaintiff’s employment capacity.
176Mr Awad, neurosurgeon and spinal surgeon, examined the plaintiff in September 2019.
177The plaintiff then told him of constant lower back pain, varying from 6 to 9 out of 10, and being ultimately bedbound when it was at the higher level.
178On examination, lumbar movement was restricted and painful.
179The diagnosis was aggravation of lumbar spondylosis.
180Mr Awad considered, in the plaintiff’s current state, he did not have the physical capacity to undertake pre-injury employment full time. In theory, he had some capacity to sedentary work, three to four hours per day, for a maximum of two to three days a week, if a suitable job was available. In practice, however, taking into account his age, education, training skills, work experience and limited English, as well as the nature and severity of his lumbar spine condition, it would be unlikely the plaintiff would be able to procure any suitable full-time employment. If he did, it would be unlikely that he would be able to carry it out in a reliable and consistent manner.
181Mr Awad thought the prognosis was such that the plaintiff is likely to suffer the consequences of this injury now in the form of some degree of pain and disability into the foreseeable future.
182In his opinion, by far the majority of the plaintiff’s symptoms arise from the organic effects of the spinal injury. He is now likely to be precluded or restricted from any form of pushing, pulling, bending, twisting, repetitive lumbar spine movements and prolonged sitting or standing for the foreseeable future.
183Dr Jennifer Flynn, orthopaedic surgeon, examined the plaintiff in September 2019.
184The plaintiff then described low back and left sciatica. The low back pain was constant, rating at 9 out of 10. He advised that his back and shoulder had not improved despite treatment, and currently he had pain in both shoulders, with the left being worse than the right.
185On examination, there was tenderness in the area of L5-S1, left leg wasting and restriction of lumbar movement.
186Dr Flynn diagnosed bilateral shoulder bursitis and right supraspinatus tendinosis, left biceps tendinitis, and L5‑S1 disc prolapse with axial and radicular pain.
187Dr Flynn thought the plaintiff is restricted in relation to employment activities involving pushing, pulling, lifting or doing so repetitively, overhead activities, carrying, use of tools, bending and reaching. The incapacity is significant and likely to be ongoing for the foreseeable future. He is also restricted in relation to social, domestic and recreational activities to a significant degree. She thought the prognosis was guarded and that the plaintiff may be at risk of degenerative disease in the lumbar spine.
188Dr Robyn Horsley, occupational physician, examined the plaintiff in October 2019.
189The plaintiff then described chronic back pain varying from 5 up to 7 out of 10, and at times 10. He continued to experience left greater than right shoulder pain.
190On examination, there was restriction of lumbar movement and straight leg raising.
191Dr Horsley thought the plaintiff presented with ongoing mechanical back pain.
192Dr Horsley thought it would be of interest to review him at the end of his pain management program and upon proactive management of his mental health. She then thought the plaintiff would find it very difficult to return to work in a reliable and sustainable fashion, secondary to poor functional tolerances in his general presentation.
193While recommending restrictions in relation to both shoulders, in terms of the back, she suggested avoidance of repetitive overreaching, repetitive pushing and pulling, truncal rotation, static forward flexion involving the lumbar spine, repetitive bending and lifting, lifting greater than 8 to 10 kilograms except on an occasional basis, lifting up to 8 kilograms on a repetitive basis, and suggested good manual handling technique, even when lifting light items.
194Dr Horsley thought overall, the plaintiff presented with significant disability. He was thirty-one, had been out of the workforce for three years, had tried unsuccessfully the first pain management program, and she noted mental health issues may prevent him from taking full advantage of the current program.
195Dr Horsley suggested, in addition to pain management, improvement in functional tolerances and education about the nature of the bilateral shoulder and back condition. The plaintiff would also benefit from further English classes. She noted he was only able to attend three weeks of classes in 2017 because of mental health issues. Once his mental health had improved, and his concentration and attention span had improved to a level where he could retain new knowledge, involvement in English classes was indicated to improve both verbal English skills and certainly his literacy. Then, he considered vocational counselling will be required to update his skills to move him into a more sedentary role into the longer term, noting he is only thirty-one.
196Dr Horsley thought the plaintiff presented well. He required proactive management and she would encourage assessment by a psychiatrist before commencing English classes, to ensure that his concentration and attention span is at a level where he can gain and retain new knowledge.
197In her view, the plaintiff presented currently with no capacity for work, but, upon completion of a pain-management program and involvement in English classes and possibly further retraining, to work in the initial instance would be on a part-time basis, 15 to 20 hours a week, with gradual increase depending on the nature of the work, his mental health, and his level of chronic pain. At that point he had presented with no realistic or reliable capacity for work.
198Dr Horsley was provided with Dr Yong’s reports, the Recovre report and a report from Dr Doig.
199Dr Horsley agreed with Dr Yong’s view that the four suggested jobs – customer service attendant, rental officer, spare parts interpreter, and weighbridge officer – were unsuitable.
200The process work detailed in the Recovre October 2019 report would need to comply with the restrictions she imposed. Any job would require individual assessment and any attempt to return to work would need to be part time, initially 15-20 hours per week, once his functional tolerances have improved and his mental health has been proactively managed.
201Dr Horsley confirmed her earlier opinion that the plaintiff presented with no work capacity, but, upon successful completion of a pain management program, proactive management of his mental health, involvement in English classes and potentially further retraining, the goal of a return to work in the initial instance would be on a part-time basis, 15 to 20 hours a week, with a gradual increase, depending on the nature of the work, his mental health at the time and his level of chronic pain.
202Mr Ash Moaveni, orthopaedic surgeon, examined the plaintiff in September 2020 via Telehealth.
203The plaintiff then reported severe constant low back pain and intermittent left leg pain. He described pain in both shoulders, with the left being the worst.
204On examination, there was some reduction of lumbar movement.
205Mr Moaveni’s diagnosis was bilateral subacromial and subdeltoid bursitis of shoulders with supraspinatus tendinosis and L5‑S1 disc prolapse with left S1 radiculopathy, all organically based.
206Mr Moaveni thought the plaintiff was likely to be restricted due to his back with regard to pulling, pushing, lifting, repetitive action, overhead activities, bending, reaching, twisting and stooping, as well as with regard to prolonged sitting, standing and walking. This restriction was quite significant and likely to continue for the foreseeable future. He is also likely to be restricted in his domestic, social and recreational activities. His prognosis was poor.
207Dr Brendan Hayman, psychiatrist, examined the plaintiff in August 2019. The plaintiff then continued to have a variety of pains, with lower back pain which was constant and radiating into the left leg. He had left shoulder pain and episodic right shoulder pain.
208Dr Hayman noted that following his injury, the plaintiff had developed a Chronic Adjustment Disorder with Depressed and Anxious Mood. His psychological state alone would not preclude him working in the open market; rather, this related to his physical state; however, he noted the plaintiff is an Iraqi migrant with limited English skills and very modest training and educational background.
Vocational evidence
209Flexi Personnel provided wage rates for a courier. Under the award, hourly rates increased from $18.77 gross in 2016, $19.22 in 2017 and $19.86 for 2018. Industry rates in that regard were $27.63 in 2016, and $28.97 in 2017, gross per hour.
210An earnings report was provided by Flexi Personnel in November 2020 setting out wages under the award for courier ($21 per hour), process worker ($18-$20 per hour), packer ($18-$21 per hour), product assembler ($18-$20 per hour), order/stock clerk ($18-$21 per hour), radio clerk ($18-$21 per hour) and building concierge ($19-$21 per hour).
Other documents
211There were a series of emails in January 2021 in which the plaintiff’s solicitors attempted to obtain from his accountant an explanation of his returns for 2016, 2017 and 2018, which included deductions claimed for a business that the plaintiff on his own evidence was not operating. The accountant failed to comply with these requests for assistance.
The Defendant’s medical evidence
Medico-legal evidence
212The plaintiff was examined on a number of occasions by occupational physician, Dr Dominic Yong.
213When seen in September 2019, the plaintiff stated he had pain in his lower back, which gave him most of his troubles. There was also numbness, with radiation down the left leg. He reported pain in both shoulders, with the left worse than the right.
214On examination, there was tenderness to palpation in the lower back and restrictions in lumbar movement.
215The plaintiff was then taking Lyrica and Targin.
216The plaintiff was off work for some time after the injury and was then offered office duties. He worked two-hour shifts for two days a week and increased to three-hour shifts. About two months into the return to work program, he had increasing pain and the employer also did not provide any office duties. The plaintiff had not worked since that time and had not undergone any retraining courses.
217The plaintiff told Dr Yong he could not read or write in English.
218Dr Yong noted the plaintiff was a man who reported handling heavy drums leading to the onset of a lower back discal injury with radicular symptoms. The plaintiff reported a significant psychological comorbidity, which was requiring multiple modalities of treating and could impact on the recovery of his physical condition.
219Dr Yong then thought the prognosis of the plaintiff’s condition should not be unreasonable with participation in an activity-based recovery program, the provision of a range of physical therapy modalities, avoiding aggravating factors. On that basis, the plaintiff should do daily walking, a regular home-based exercise program, domestic tasks at home and aim to be as active as possible within the limits of his pain.
220Taking into account the back and right shoulder condition while ignoring the psychological comorbidity, Dr Yong thought the plaintiff had a current capacity to perform tasks within the following restrictions - avoid repeated bending and twisting of the back; vary posture regularly between sitting and standing and walking; avoid repeated above shoulder height tasks or reaching duties with the right arm; avoid firm pushing and pulling tasks; avoid lifting more than 2.5 kilograms with the right or 5 kilograms with both hands on a repeated basis, and a reduction in working hours.
221Dr Yong thought the plaintiff did not have a current capacity to do his pre-injury employment.
222Dr Yong commented on the August 2018 job suggestions by Counselling Appraisal Consultants.
223In terms of a delivery driver or spare parts interpreter, he noted sometimes in this role there may be a requirement to handle goods which could exceed the recommended restriction; therefore, the role would require individual assessment.
224The customer service attendant role and rental officer/car hire were likely to have minimal manual handling and would comply with the restrictions and thus would be suitable. However, the plaintiff reported poor English skills and he needed further support to provide him with retraining to improve these skills to allow him to return to this type of role.
225Dr Yong thought the weighbridge operator role was suitable, but, again, the plaintiff’s lack of English skills was relevant.
226Dr Yong thought the plaintiff could do the tasks working reduced hours, such as working three-hour shifts for two days a week. The initial aim would be to then increase his working hours back to half his pre-injury hours or about twenty hours a week on a graduated basis. This would take three to four months. He would then need re-assessment to determine the rate of increase in his working hours,
227Dr Yong provided a further report, having been provided with Recovre’s October 2019 vocational assessment.
228Dr Yong thought the role of packer complied with the recommended restrictions and would be considered suitable. Product assembler was also suitable subject to the plaintiff’s English skills. The role of process worker would require individual assessment. Order clerk/stock clerk would be suitable physically, but there were English language difficulties, as was the case with radio clerk and building concierge role.
229Dr Yong re-examined the plaintiff via a Telehealth conference in September 2020. The plaintiff said, since last seen in September the previous year, his back pain had remained the same.
230Dr Yong confirmed his views about the viability of an activity-based recovery program. He noted some pain avoidance behaviour on the previous assessment appeared to have reduced. Subsequent to his last review, his opinions were unchanged.
231Dr Graeme Doig, orthopaedic and trauma surgeon, examined the plaintiff in October 2019.
232The plaintiff then complained of persistent lower back pain, which was constant, with radiation to his left leg. He also had discomfort in his non-dominant left shoulder and occasionally on the right.
233On examination, there was tenderness in the lumbosacral spine and flexion and extension was reduced.
234Dr Doig thought the plaintiff appeared to have suffered a soft tissue injury to the non-dominant left shoulder with ongoing impingement and a similar condition to the right, which had resolved at the time of assessment.
235The plaintiff’s main pathology was in his lumbosacral region, whereby he suffered an intervertebral disc protrusion at the L5-S1 level on the left, with a resolving radiculopathy in the leg.
236Dr Doig thought the plaintiff did not have a capacity for his pre-injury duties as a truck driver. He had a capacity for suitable employment. He would have a less than 10-kilogram lifting, pulling and pushing restriction, with limited bending and twisting through the spine. He would require breaks from prolonged sitting and driving and should not be lifting any more than 5 kilograms at or below waist height with the non-dominant left arm, and repetitively using the arm overhead.
237Dr Doig’s only concern with the jobs suggested in August 2018 would be the delivery driver position, if that involved long periods of sitting, although the plaintiff said he could drive a car satisfactorily. The product assembler position also may prove difficult if the plaintiff was required to lift heavy items with his non-dominant left arm, particularly overhead. The other positions were unlikely to exceed Dr Doig’s stated restrictions.
238Orthopaedic surgeon, Mr Michael Dooley, examined the plaintiff in December 2020.
239The plaintiff then complained of ongoing lower back pain and intermittent left lower limb pain. He reported ongoing left greater than right shoulder pain.
240Mr Dooley believed that the plaintiff sustained a soft tissue injury to his lumbar spine that involved a left-sided lumbosacral disc prolapse, which occurred on a background of established degenerative disc disease involving the lumbosacral level and also at L4-5.
241Clinical examination currently revealed no evidence of objective neurological deficit affecting the lower limbs. There was some restriction of lumbar movement and reduced straight leg raising
242As it is now over four years since the plaintiff’s injury, Mr Dooley thought that the constancy and intensity of his ongoing pain and his described disability was greater than one would expect for his organic condition. He believed the plaintiff had had a psychological reaction to his situation and that significantly influenced his ongoing symptoms.
243From an orthopaedic point of view, he thought the plaintiff needed to increase his activity in general and undertake low impact exercise. Certainly, it was important he did not take strong morphine-based oral analgesia. Ongoing symptoms four years down the track cannot be explained on the basis of organic injury only.
244For the plaintiff’s overall wellbeing, Mr Dooley believed it very important he returned to suitable work. He has drifted in the system for a long time now and was gradually being lured down the path of invalidism that would have long-term ramifications in terms of his mental health and family harmony.
245From an orthopaedic viewpoint only, he would expect the plaintiff to note some intermittent lower back pain and lower limb pain and expect some occasional shoulder girdle pain.
246From an orthopaedic point of view, he did not believe the plaintiff would be able to return to all previous duties. He has a physical capacity to carry out light physical work and clerical duties. Return to suitable work would need to be on a graduated basis.
247Mr Dooley believed the plaintiff had a physical capacity to work as a clerk in passive security and as a building concierge. One would need to fully know all the duties required in terms of working as a packer or product assembler, and he did not know whether or not the plaintiff had a work capacity in this regard. From an orthopaedic point of view, he believed that ultimately, the plaintiff would have the capacity to increase his hours to full time.
248Dr Timothy Entwisle, psychiatrist, first examined the plaintiff in June 2017, at which time he continued to describe pain in his lower back and left leg.
249Dr Entwisle noted the plaintiff’s stress and worry about his family and health and back injury did not rise to clinical significance. From a psychiatric perspective alone, the plaintiff had a capacity for pre-injury alternative modified or suitable duties and had not developed a psychiatric injury.
250On re-examination in August 2018, Dr Entwisle made similar findings. He thought the plaintiff had a capacity to complete the duties set out in the NES report of 17 May 2018. He noted the reports of Dr Umberto Boffa, occupational and environmental medicine specialist, of December 2017 and Mr Clive Jones, orthopaedic surgeon, of June 2017.
251Dr Entwisle re-examined the plaintiff in December 2019. He then concluded the plaintiff’s various symptoms were largely psychosocially determined. The plaintiff had three young children and there were financial concerns, and he felt caught in the WorkCover system and hence had not worked now for some time. While he reported various matters of stress, his presentation and symptomatology were not consistent with a psychiatric condition. The plaintiff did not have a mental condition which affected his employment capacity.
Vocational evidence
252CAC carried out a 130-week vocational assessment in August 2018.
253Based on the plaintiff’s transferable skills, reported interests and current work capacity, the following job options were identified:
· delivery driver (car or van light items) ꟷ $881 weekly average
· customer service attendant ꟷ $969 weekly average
· rental officer (car hire or similar) ꟷ $1,095 weekly average
· spare parts interpreter ꟷ $979 weekly average; and
· weighbridge operator ꟷ $1,411 weekly average.
254The assessor, Leonie Welgus, noted that the plaintiff had no current capacity for employment as reported by his general practitioner. She had identified employment options based on the plaintiff’s transferable skills and medical information provided by Dr Malcolm Brown.
255Ms Welgus noted the plaintiff was currently engaging in job seeking review services with CAC, where the identified training and job options had been discussed with him. CAC had offered to enrol him in English skills training and computer training, however, the plaintiff reported that he did not believe he had any capacity to undertake any retraining at the time.
256Nicholas Janides, senior vocational assessor from AMS Consulting, provided a vocational report in October 2019. In compiling that report, he had available Dr Yong’s September 2019 report, the earlier vocational assessment of August 2018, a report from the plaintiff’s general practitioner of 16 October 2018 and Dr Maarten’s report of 26 July 2018.
257Mr Janides noted that during interview on 15 October 2019, the plaintiff demonstrated a relatively good level of spoken English on occasion, however, he preferred to utilise the interpreter for most of the assessment.
258The documents indicated that in late 2018, the plaintiff was assisted with further English language training which incorporated some computer training arranged through his occupational rehabilitation provider.
259Mr Janides noted the plaintiff presented with a poor vocational outlook. The plaintiff presented as focused on his injuries and reported poor memory and concentration due to his medication.
260Based on the plaintiff’s education, work history and transferable skills, the following work options – process worker, packer and product assembler – were identified as suitable for him to consider.
261It was noted English language training and computer training were needed to redeploy to entry level clerical roles such as order clerk/stock clerk, radio clerk and building concierge.
262Four work site assessments were conducted:
· Product assembler, with a business manufacturing recycling and assembling meter casings based in Laverton – $27 per hour.
· Despatch packer role in Keilor Park, with a business which distributed dancewear. The plaintiff would go into that role at an entry level administrative despatch role – $21.50 per hour.
· Radio clerk was with a parcel delivery company and involved a sedentary entry level administrative role with a transport company – $68,000 per annum.
· Building concierge with a contract security company in a building concierge role, not requiring specific security training – $65,000 gross per annum.
263The author considered the four worksite assessments that had been done, which demonstrated the physical demands of actual job roles which exist in the labour market are representative of roles viewed potentially as suitable for the plaintiff to perform.
264AMS Consulting carried out a labour market analysis in January 2021. They did not meet with the plaintiff for the assessment and had available Dr Yong’s most recent report.
265The author was asked to provide salaries for full, part time and casual employment for the vocational options recommended, current vacancies in the plaintiff’s region of Sunshine West – inner and western suburbs of Melbourne – and security roles that are available to the plaintiff, taking into consideration Dr Yong’s physical guidelines.
The Plaintiff’s taxation returns
266In the 2016-2017 financial year, the plaintiff’s taxable income was $19,946, being weekly payments of $38,000 less business expenses of $18,054.
267In 2017-2018, his assessable income was $20,347, being weekly payments of $38,652, less total expenses of $18,305.
268In the 2018-2019 financial year, his taxable income was $30,074, being weekly payments of $25,821 less expenses of $250.
Surveillance
269There were 74 hours of surveillance in total, and about 22 minutes of film, of which about 20 minutes was shown to the Court.[59]
[59]T140
Overview
270There is no dispute the plaintiff suffered an injury to his lumbar spine in the incident on the said date. His claim was accepted and he received weekly payments.
271The consensus of medical opinion is that the plaintiff suffered a left sided L5-S1 prolapse, with some examiners diagnosing radiculopathy. His condition has also been described as an aggravation of pre-existing spondylosis.
272All examiners agree the plaintiff’s condition is organically based, his general practitioner having initially misunderstood the term when first asked to comment in this regard.[60]
[60]T128
273There is no suggestion the plaintiff had any problems with his lumbar spine prior to the incident.
Credit
274As the Court said in Haden Engineering Pty Ltd v McKinnon,[61] credit will often be particularly significant when assessing evidence of what the plaintiff has said about his or her pain and suffering consequences in court and to doctors.
[61]Supra
275There were significant credit issues in this case.
276The “essential submission” on the defendant’s behalf was that the Court should have severe reservations accepting the extent of the complaints the plaintiff has made, and the effect that they have had on his work capacity and other matters.[62]
[62]T106
277It was submitted in many respects, the plaintiff was a non-responsive witness. His English skills to start with were quite good, and he could break into English and converse, but “when things were going a bit not how he wanted”, he reverted to the interpreter. Further, his response to the videos was not that of a reliable or responsive witness.[63]
[63]T112
278
In relation to first film, it was submitted the plaintiff would have remembered that he drove to Leopold, beyond Geelong, as he said he had only driven locally. His explanation as to what he did with the air-conditioner upon receipt
“did not really add up”. It was submitted he was aware of the presence of the investigator when he was talking to the other man on the film.[64]
[64]T114
279Further, in the second film, the plaintiff did not want to admit that he had taken the battery out of one car and put it in the next car, and ultimately his memory had “disappeared”.[65]
[65]T113
280The plaintiff’s explanation of his taxation returns was also not credible. The taxation figures must have come from him at a time when he well knew he was not operating a business, there were no invoices, and he perhaps had sold the truck completely. It was a situation of “false deductions”.[66]
[66]T115
281In response, counsel for the plaintiff submitted this was not “a case of someone swinging a pick in the backyard for four hours and saying ‘No, that’s not me’”. Handling the battery was a “pretty innocuous, mild incident.”[67] It was submitted there was no gain to the plaintiff being vague about the events shown.[68]
[67]T121
[68]T119
282Further, it was not unreasonable that the plaintiff would not remember what happened at Leopold.[69]
[69]T121
283It was submitted the Court could not be satisfied that the plaintiff knew of the presence of the cameraman in the Leopold film, and that it would be a very dangerous finding on the limited evidence to elevate it to a positive finding to make an adverse criticism of the plaintiff’s credit.[70]
[70]T122
284Counsel conceded it was to the plaintiff’s advantage financially to have the business deductions claimed on his taxation returns.[71] Counsel attempted to minimise the plaintiff’s involvement in the returns, submitting in circumstances where there were no invoices, the documents were a construct of the accountant.[72]
[71]T126
[72]T125
285In reply, counsel for the defendant submitted this explanation on the plaintiff’s behalf about the accountant was “ridiculous”, and to say the accountant must have made it up was “far-fetched”.[73]
[73]T140
286I am required to record any credibility findings and explain a logical and rational basis for them.[74] I am also required to describe the path of reasoning which led to those findings.[75]
[74]Church v Echuca Regional Health (2008) 20 VR 566
[75]Woolworths Ltd v Warfe [2013] VSCA 22 at paragraphs [135]-[137]
287As I indicated at times during the hearing, I had significant concerns about the plaintiff’s credit.
288At times there were direct exchanges with me in which the plaintiff’s English was better than he described.[76]
[76]T127
289I found it difficult to accept he initially had no memory of the Leopold trip when his evidence was that he only drove locally because of back pain. He then however “remembered” what happened that day, explaining he had gone to Leopold to buy an air conditioner he had seen on Facebook.
290I consider that the other man shown on the film became aware near the end of the film of the presence of the cameraman, waving to him. As there is no sound on the video, in circumstances where the plaintiff denied any such conversation, I cannot be satisfied he was aware of the presence of the cameraman when he was filmed at that stage, or earlier when he held his back and the other man lifted the box into the car.[77]
[77]See Woolworths Ltd v Warfe (ibid) at paragraph [111]
291The plaintiff gave conflicting versions of the “battery” film, initially acknowledging he was shown moving the battery from one car to another and then denying he had done so and simply had put the battery on the ground. In my view, this was an attempt to understate the activity he was shown doing, lifting the relatively heavy battery.[78] However, as counsel for the plaintiff submitted this was an isolated act and not one over an extended period or on a repetitive basis. Significantly, there was 74 hours of surveillance with only about 20 minutes of film.
[78]T119-120
292It is difficult to explain business deductions claimed by the plaintiff in his 2016-2018 taxation returns. The business was not operating during that time and there were no invoices the accountant could have worked off. The plaintiff’s solicitors attempted to obtain some explanation from the accountants involved but their attempts were unsuccessful so the situation remains largely unexplained. While the plaintiff did derive a benefit from these deductions, I make no credit finding in this regard.
293However, despite the importance of credibility in these applications, the Court must not reject reliable medical evidence merely due to concerns about the plaintiff’s credibility, as the case must be decided on the whole of the evidence, including objective evidence of diagnostic tests which are unaffected by the plaintiff’s credit.[79]
[79]Cakir v Arnott’s Biscuits Pty Ltd [2007] VSCA 104 at paragraph [49]
294In this case, the plaintiff’s credibility is not critical to my ultimate determination as there is significant objective evidence to demonstrate serious injury.
295While having concerns as to the plaintiff’s credit which I expressed during the hearing, the overwhelming medical evidence from both treaters and medico-legal examiners is that the plaintiff is suffering from an organically-based injury to his lumbar spine seen on MRI and diagnosed as a prolapse, as a result of which his capacity for work is significantly restricted.
Pain
296As Maxwell P said in Haden Engineering Pty Ltd v McKinnon,[80] the evidentiary basis of the pain assessment will ordinarily comprise, inter alia, what the plaintiff says about the pain both in court and to doctors.
[80](Supra) at paragraph [11]
297The plaintiff has consistently described a significant level of pain to treaters and medio-legal examiners. No examiner thought the plaintiff was exaggerating his symptoms or found inconsistencies on examination[81] although Mr Dooley thought the constancy and intensity of the plaintiff’s ongoing pain and described disability were greater than would be expected for his organic condition.
[81]T136
298As counsel for the plaintiff submitted, the medical evidence was very supportive of the genuineness of the plaintiff’s complaints, and that was consistent with his very high medication usage.[82]
[82]T139
Restrictions
299The plaintiff’s range of lumbar movement is restricted – as has been found by most examiners. Accordingly, he is significantly limited in his ability to engage in activities involving pushing, pulling, bending, lifting and prolonged postures as those examiners have opined.
Treatment
300Although there are concerns by examiners about the plaintiff’s dependence on medication, he continues to be prescribed significant painkilling medication including Lyrica and Targin.
301As Dodds-Streeton JA noted in Kelso v Tatiara Meat Company Pty Ltd,[83] where chronic pain was a prominent feature of the appellant’s case, the endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a “very considerable” consequence.
[83](2007) 17 VR 592 at paragraph [199]
302Back surgery has been suggested by both Professor Bittar and Mr Maartens but the plaintiff has not had an operation as he is scared it will make his condition worse. He did have a nerve block injection in his lower back in November 2017 but it did not help his lower back pain.
303The plaintiff has been involved in pain management programs in both 2017 and last year. Neither were completed. Although counsel for the defendant suggested this was because of a lack of co-operation on the plaintiff’s part, there is no evidence to this effect.[84]
[84]T110
Work
304While the plaintiff had no work history in Melbourne from 2008 to 2015 as he was caring for his ill father,[85] prior to the said date, the plaintiff did join the workforce after completing a short security course in 2015.
[85]T106
305However, his work in security was quite limited. He required an extra week to do the Certificate II course because of his English difficulties. He was offered little work and on one occasion was turned away form a job at a factory because of his English difficulties – “real life” examples of the plaintiff’s difficulties.[86]
[86]T135
306The plaintiff has had no formal education. His spoken English is adequate, but his reading and writing skills are poor. He has no training, other than his security certificate and a heavy rigid truck licence, which he again obtained with assistance with his English.
307The job with the employer was the plaintiff’s first substantial job in Australia. He had to purchase a truck to do this job. Although he was able to do deliveries solo, steps were taken by the employer to make the plaintiff’s job easier because of his English language difficulties.
308All medical examiners agree that the plaintiff no longer has an unrestricted capacity for manual work as a result of his back pain and resultant restrictions.
309This is a serious consequence.[87]
[87]Haden Engineering (supra) at paragraph [15], Peak Engineering & Anor v McKenzie [2014] VSCA 67 at paragraph [38] and Ellis Management Services Pty Ltd v Taylor (2013) VSCA 326 at paragraph [35]
310Further, the plaintiff is still a relatively young man, aged only thirty-two.
311As Ashley JA and Beach AJA discussed in Stijepic v One Force Group Aust Pty Ltd,[88] it is relevant to look at the likely period for which any consequences would be experienced. It was noted, all things being equal, impairment consequences which a man or woman would have to put up with for forty years might well be judged more serious than the same consequences which a man or woman may have to put up with for a much shorter period of time.
[88][2009] VSCA 181 at paragraph [43]
312Having satisfied the narrative requirements to obtain leave in relation to loss of earning capacity, the plaintiff must also establish that:
(a) at the date of the hearing, he has a loss of earning capacity of 40 per cent or more – s325(2)(e)(i); and also
(b) after the date of hearing, the relevant loss of earning capacity will continue permanently – s325(2)(e)(ii).
313The measurement of loss of earning capacity is set out in paragraph (f) which requires a comparison between:
(i) “without injury” earnings; and
(ii) “after injury” earnings.
314The former must be calculated by reference to the six-year period specified in s325(2)(f).
315“Without injury” earnings consist of the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion had the injury not occurred.
316It is to be calculated by reference to that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity.
317The plaintiff carries the onus of proof in relation to economic loss and particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and (g) therein.[89]
[89]See Barwon Spinners Pty Ltd & Ors v Podolak (supra) at paragraph [70]
318I am therefore required to determine a “without injury” earnings figure.
319The defendant relied on the figure of $1,028 a week, deposed to by the plaintiff in both affidavits. Sixty per cent thereof is $615.[90]
[90]T108
320Counsel for the plaintiff relied on the wage rates set out in the claim documentation. In his Claim Form completed on 22 June 2016, he set out he was working 40 hours a week before he was injured, working from 8.00am to 5.00pm. His usual pre-tax hourly rate was $32.30, and his usual pre-tax weekly earnings were $1,292.30,[91] 60 per cent of which is $775.
[91]Same figures in Employer’s Claim Form
Capacity
321Counsel for the defendant submitted there are a number of jobs the plaintiff could do, having obtained a security licence in the past. The plaintiff was not even prepared to say he would attempt a single thing, nor was he willing to do even a few hours in a job to start with. While he said he had some difficulty on his return to work in 2016, it is now four years later and he is still in the same position.[92]
[92]T106
322Dr Yong and Dr Ong identified suitable jobs, although some were qualified to the extent that the plaintiff needed to improve his English; however, it was submitted his English had improved.[93]
[93]T107
323Dr Yong, Mr Dooley and Dr Doig all considered the plaintiff is capable of returning to full-time work, albeit on a staged basis.[94]
[94]T108
324It was submitted the plaintiff’s complaints were so extensive, and it could not be accepted that he could not do anything at all in a work context.[95] Further, his participation in the Zoom hearing indicated he had some computer skills.[96]
[95]T116
[96]T118
325Counsel for the plaintiff relied on the views of medico-legal examiners, Dr Mittal, Mr Awad, Dr Flynn and Mr Moaveni, who essentially considered the plaintiff has no capacity for employment.[97]
[97]T113
326Further, Dr Yong thought that four of the suggested jobs were unsuitable and the limitations imposed by Dr Horsley were significant.[98]
[98]T130-131
327Dr Doig also had concerns about the delivery driver and product assembler positions. While he thought the plaintiff had a capacity, he acknowledged he was significantly deconditioned, and initially would need to start at four hours a day, three days a week, and basically see what happened. Mr Dooley was “similarly cautious”.[99]
[99]T132
328Counsel for the plaintiff also pointed out the plaintiff’s obvious difficulties sitting in a concierge role when he needed a pillow behind his back when driving as shown on the surveillance film.[100]
[100]T135
329In my view, clearly there are only a few jobs for which the plaintiff has training, and they require a physical capacity. In terms of sedentary work, while his English skills remain adequate, his written English and reading are poor.
330There was a limited return to work for a couple of months post incident but the plaintiff was unable to cope with even light sedentary work for a couple of hours a day. Although it is now four years later, there does not appear to have been any improvement in his condition, despite ongoing treatment
331At best, the plaintiff could re-enter the workforce on a graduated basis of up to 12 hours a week as is suggested by a number of examiners but the issue is in what role. I do not consider the plaintiff to be suitable for any sort of sedentary or concierge role. He has no clerical/office/administrative skills or experience dealing with the public. His English would not be adequate in a job that requires very good communication skills. Further, he has difficulty sitting for extended periods.
332The restrictions imposed by various medical examiners are so significant that it is hard to envisage a role in which the plaintiff could work at all, even on a part-time basis.
333Those medical practitioners who consider the plaintiff has a capacity to try to re-enter the workforce, suggest he do so on a graduated basis, commencing at a total of 12 hours per week.[101] Dr Yong thought the plaintiff should start at only 6 hours per week and then over three to four months, build up to 20 hours and then be reassessed.
[101]Mr Awad, Dr Ong, Dr Doig and Mr Dooley
334Even if the plaintiff could increase to 20 hours per week or more, which I consider unlikely, in the limited jobs that are suitable, he would still suffer the requisite loss, being unable to earn in excess of $775 per week. With the jobs such as packer earning about $20 per hour, he would need to work almost full time.
335Further, the high level medication the plaintiff continues to take would affect his ability to concentrate while at work.
336Although it is a difficult task for such a young plaintiff to establish a 40 per cent loss of earning capacity, despite my views as to his credit, taking into account all the evidence, I am satisfied he has suffered the requisite loss, being unable to earn in excess of $775 per week for the foreseeable future.
337As counsel for the plaintiff explained:
“It’s a very unfortunate combination of significant pain levels, very limited work experience in terms of truck driving and static security, security guard standing around the MCG when it was open, and the other difficulties that he brings to the table in terms of his English language skills ... .”[102]
[102]T132
338I am also required to consider issues of retraining and rehabilitation pursuant to ss(g).
339Counsel for the defendant submitted the plaintiff had not discharged this onus. The plaintiff had made no reasonable attempt to improve his English or improve his computer skills. He had no motivation to work, and would have embarked on courses and have got a job if he had done so. He obtained a security licence even when his English was not that good, and therefore he could do the type of jobs suggested if he did the training, but he was not willing to do so.[103]
[103]T108
340Counsel for the plaintiff submitted that the plaintiff “had had a go”. He tried to do the English course but could not stick at it because of discomfort and pain. Therefore, it could not be said he had not tried, and no one said his pain was other than genuine, noting Mr Dooley’s comments.[104]
[104]T136
341The plaintiff had tried but had not succeeded in pain management, and it was submitted the same was true of his efforts to retrain.[105]
[105]T130
342In light of my findings as to the plaintiff’s impairment and his incapacity for employment, I am satisfied there is no rehabilitation or retraining that would be appropriate to be undertaken by him which would alter the situation that he has a permanent loss of earning capacity of 40 per cent or more.
343Post injury, he tried to return to the lightest of work on minimal hours but was unable to continue because of pain. He tried to improve his English after injury with very limited success because of his pain while sitting. His ability to undertake any other retraining is also significantly further restricted given his lack of work experience, formal education and vocational skills.
344The plaintiff attempted pain management in both 2017 and 2020 but has been unable to complete the courses and has gained limited benefit from them.
345As rehabilitation and retraining have nothing to offer the plaintiff in terms of his capacity for employment, he has satisfied the requirements of ss(g).
346There having been no improvement in the plaintiff’s spinal condition, despite a range of treatment modalities, I am satisfied his lumbar impairment is permanent.
347Taking into account all the evidence, I am satisfied the plaintiff has suffered the requisite loss of 40 per cent, being unable on a permanent basis to earn in excess of $775 per week.
348As the plaintiff has satisfied the test laid down by the Act in relation to loss of earning capacity, then he is at large to make a claim for damages, that is, both for pain and suffering and loss of earning capacity.[106]
[106]See Forrest J in Acir v Frosster Pty Ltd [2009] VSC 454 at paragraph [147] and Advanced Wire & Cable Pty Ltd & Victorian WorkCover Authority v Abdulle [2009] VSCA 170
349Accordingly, I grant leave to the plaintiff to bring proceedings for damages for both pain and suffering a loss of earning capacity.
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