Ali v Victorian WorkCover Authority
[2019] VCC 155
•22 February 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-18-02600
| NAWROOZ ALI | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE HINCHEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 November 2018 | |
DATE OF JUDGMENT: | 22 February 2019 | |
CASE MAY BE CITED AS: | Ali v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 155 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – paragraph (a) of the definition of “serious injury” – pain and suffering – loss of earning capacity – whether injury to lumbar spine is organic in nature – whether injury resulted in serious injury consequences – relevant principles
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s335(2)
Cases Cited:Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Hunter v Transport Accident Commission & Avalanche [2005] VSCA 1; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Peak Engineering & AnorvMcKenzie [2014] VSCA 67; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Meadows v Lichmore Pty Ltd [2013] VSCA 201; Fokasv Staff Australia Pty Ltd [2013] VSCA 230; Victorian WorkCover AuthorityvNguyen [2016] VSCA 284; Mutual Cleaning and Maintenance Pty Ltd v Stamboulakis [2007] VSCA 46
Judgment: Application granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C Harrison QC with Ms C Kusiak | Zaparas Lawyers Pty Ltd |
| For the Defendant | Mr A Saunders | Lander & Rogers |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s335(2) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) for injury suffered by the plaintiff in the course of his employment with Quality Bakers Australia Pty Ltd (“the employer”) on 13 November 2014.
2 The plaintiff seeks leave to bring proceedings for damages in relation both to loss of earning capacity and pain and suffering.
3 The application is brought pursuant to clause (a) of the definition of “serious injury” as that term is defined in s.325(1) of the Act, namely:
“‘Serious injury’ means –
(a) permanent serious impairment or loss of a body function … .”
4 The impairment of body function relied upon is function of the lumbar spine.
5 In order to establish an entitlement to recover damages under the Act, apart from satisfying the definition of a “serious injury”, by s5 of the Act, the injury must have arisen out of or due to the nature of the plaintiff’s employment with the employer on or after 1 July 2014. As set out in s325(1), the impairment of the body function must be permanent.
6 The plaintiff’s burden of proof on the application is on the balance of probabilities.
7 By s325(2)(c) of the Act, it is the “consequences” of the impairment which produce the “pain and suffering” or “loss of earning capacity” which must be “serious” – that is, the plaintiff must prove, on the balance of probabilities, that the impairment or loss of body function results in relevant “consequences” that are “when judged by comparison with other cases in the range of possible impairments … fairly described as being more than significant or marked, and as being at least very considerable.”
8 Sections 325(e) and (f) set out the statutory formula by which the Court must measure the plaintiff’s loss of earning capacity prior to any grant of leave. This formula provides that the plaintiff must establish a loss of earning capacity of 40 per cent or more, as measured in accordance with s325(f) of the Act.
9 Section 325(2)(h) requires me to disregard all psychological or psychiatric consequences in determining an application which relates to a physical impairment.
10 By s325(2)(b), in determining the “consequences” of the injury, the Court is required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury.
11 In determining the application, the Court:
(a) must assess whether “the injury” is a “serious injury” as at the time the application is heard.[1] In relation to the assessment of the pain and suffering consequences of an injury, it has been held that this task is largely a question of impression or value judgment;[2]
(b) must give reasons that disclose the pathway of reasoning in dealing with the evidence and issues raised by the application.[3]
[1]Section 325(2)(j) of the Act
[2]See Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592 at 628; see also Sabo v George Weston Foods [2009] VSCA 242 at paragraph [67]
[3] See generally HuntervTransport Accident Commission & Avalanche [2005] VSCA 1 at paragraphs [23]-[26]
12 In reaching my conclusions in this matter, I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Orsv Podolak[4] and Grech vOrica Australia Pty Ltd & Anor.[5]
[4](2005) 14 VR 622
[5](2006) 14 VR 602
13 The plaintiff relied upon two affidavits, gave viva voce evidence and was cross-examined.
14 In addition, both parties relied upon medical reports and other materials which were contained within Court Books tendered in evidence.[6] I have read all of the tendered material. In this judgment, I will refer only to the relevant parts of the tendered materials.
[6]The plaintiff’s Court Book was marked as exhibit P1; the defendant’s Court Book was marked as exhibit D1
The Plaintiff’s background
15 The plaintiff was born in Afghanistan. He is now thirty-seven years old.[7] He is married and has two small sons.[8] He did not complete any formal education in Afghanistan. He arrived in Australia as a refugee in approximately 2001. In Australia, he completed a Certificate II in Warehousing in July 2012.[9]
[7]Exhibit P1, page 12, paragraph 2; page 20, paragraph 1
[8]Exhibit P1, page 12, paragraph 3
[9]Exhibit P1, page 13, paragraph 4
16 In Afghanistan, the plaintiff assisted his father in a grocery shop.[10] In Australia, the plaintiff has worked variously as a spray painter,[11] in a factory as a labourer operating machines to make boxes,[12] as a labourer in a light factory spraying moulds with an air spray gun[13] and as a machine operator at the Holden factory.[14]
[10]Exhibit P1, page 13, paragraph 5
[11]Exhibit P1, page 13, paragraph 6
[12]Exhibit P1, page 13, paragraph 7
[13]Exhibit P1, page 13, paragraph 8
[14]Exhibit P1, page 13, paragraph 10
17 The plaintiff began employment with the employer in approximately July 2012 as a casual, working varying hours each week. His duties involved working on a production line baking bread as part of a team.[15] He would load the ovens with dough and then unload the fresh bread. Each oven had multiple racks of trays and each tray held six loaves of bread. He was required to unload the entire oven “in approximately four minutes”.[16]
[15]Exhibit P1, page 13, paragraphs 11-12
[16]Exhibit P1, page 14, paragraph 12
18 Prior to 13 November 2014, the plaintiff had suffered from no physical injuries that bear upon the consequences with respect to the injury to his lumbar spine.
The incident
19 In his affidavit sworn 15 January 2018, the plaintiff described the accident (“the incident”) and its immediate aftermath in the following terms:
“13.On 13 November 2014 at approximately 7pm, I was unloading bread from the top rack and a tray was stuck and I had to pull it to release it. I recall that some of the other racks in the oven began sliding out and falling on top of me. I initially tried to hold the racks back so that they did not fall on me and then I remember twisting to get out of the way and the trays and the bread fell on the floor. My team saw it and came to help me.
…
15.I immediately felt warmth and pain across my entire back area and I was given ice to put across my back. I was taken to Dandenong Hospital Emergency Department that evening and was given some Panadeine Forte. I was also given a WorkCover Certificate.”[17]
[17]Exhibit P1, page 14, paragraphs 13 and 15
20 In her report dated 30 August 2015,[18] Dr Ariane D’Argent, the plaintiff’s treating general practitioner, noted that following the incident –
“… As his condition was not improving, he had X-rays and [an] MRI of [the] lumbar spine which showed grade 1 Spondylolisthesis at L5/S1 level and no other abnormalities.”
[18]Exhibit P1, page 26
21 Included in the Plaintiff’s Court Book were reports of a CT scan performed on 14 November 2014[19] and an x-ray performed on 25 November 2014.[20]
[19]Exhibit P1, page 106
[20]Exhibit P1, page 107
The Plaintiff’s evidence
22 The plaintiff swore two affidavits, the first on 5 January 2018 and the second on 1 November 2018.
Pain and Suffering
23 In summary, the plaintiff’s evidence as to the pain and suffering consequences which he experiences as a result of the incident is as follows:
Experience of pain, medication and treatment
(a) He feels pain most of the time. He finds that painkillers assist him to manage and reduce the pain somewhat. Moving or using his back usually aggravates the pain from “a tight and constant type pain”, to a “more sudden shock like pain”. He finds that his lower back is stiff in the mornings. He occasionally feels pain radiating down the back of his left leg;[21]
[21]Exhibit P1, page 16, paragraph 29
(b) He currently takes the following medication for his lower back:[22]
[22]Exhibit P1, page 22, paragraph 10
(i) Palexia (analgesic) 100-milligram slow release, one tablet twice a day;
(ii) Meloxicam (anti-inflammatory) 15 milligram, one tablet a day;
(iii) Lyrica 150 milligram for nerve pain, one capsule twice a day.
(c) He finds that the Palexia makes him drowsy at times and also can cause stomach troubles. He also takes Panadol Osteo twice per week;[23]
[23]Exhibit P1, page 22, paragraph 11
(d) He continues to use a heat pack and applies Tiger Balm across his lower back most nights;[24]
[24]Exhibit P1, page 22, paragraph 12
(e) In terms of treatment, he continues to attend his general practitioner, Dr D’Argent. He also sees a pain specialist, Dr Ali Mehr, on average once every three months. He has been seeing Dr Mehr for over three years;[25]
[25]Exhibit P1, page 21, paragraphs 7-8
(f) He continues to engage with his treating psychologist, Ms Julie Murdoch, on average once per month.[26] He began attending Ms Murdoch in November 2015. He finds her treatment helpful.[27] His dose of anti-depressant (Mirtazapine) has been doubled to 30 milligrams per day. He constantly feels sad and anxious and fights with his wife because of his mood. He is constantly irritable and grumpy. He is impatient with his children.[28] He finds that he can manage his anger and irritability by “getting out of the house”;[29]
[26]Exhibit P1, page 21, paragraph 9
[27]Exhibit P1, page 16, paragraph 25
[28]Exhibit P1, page 18, paragraph 40
[29]Exhibit P1, page 23, paragraph 17
(g) His ability to do things is variable and depends on what sort of day he is having. He can generally stand in one spot for about 15 to 20 minutes before the pain is aggravated and he needs to change positions. His sitting capacity varies, but he can generally sit for 30 minutes before the pain is aggravated and he needs to change positions. He can walk for approximately 30 to 45 minutes if he has taken his medication and the weather is not too cold. Otherwise his walking capacity is less. He finds that if he walks for a long time, his pain increases at night time.[30]
[30]Exhibit P1, pages 16-17, paragraph 30
(h) He can usually bend over if he needs to and has taken his medication. Bending repetitively tends to aggravate his pain. He can lift things, but if he lifts heavy things the pain is aggravated. He believes that he would struggle to lift things repetitively without aggravating the pain;[31]
[31]Exhibit P1, page 17, paragraph 30
Ability to sleep
(i) He describes his sleep as “horrible” and says that he usually only sleeps for short periods of around three hours before waking from pain.[32] Once awake, he struggles to get back to sleep “because of my psychological symptoms. I sit there and feel anxious and overwhelmed about my future and my life”;[33]
[32]Exhibit P1, page 17, paragraph 33
[33]Exhibit P1, page 17, paragraph 33
Activities of daily living
(j) He used to assist his wife with the vacuuming but struggles with that task now, as being bent over and the force involved in pushing the vacuum, aggravates the pain.[34] He is unable to mow the lawn and now has to pay his friends to do that for him;[35]
[34]Exhibit P1, page 17, paragraph 31
[35]Exhibit P1, page 17, paragraph 32
(k) He continues to drive “because I have no choice”. If he has taken his pain medication, he can drive short distances without aggravating his pain;[36]
[36]Exhibit P1, page 17, paragraph 34
(l) He used to play soccer with his friends in the park a few times a week. He has not tried to play soccer since the incident as “I would struggle to run for that period of time”.[37] Similarly, he occasionally used to play cricket with his friends in the park but “would struggle to do this now”;[38]
[37]Exhibit P1, page 17, paragraph 35
[38]Exhibit P1, page 17, paragraph 36
(m) He used to go camping with his friends and family prior to the incident. He has tried to do this two or three times after the incident and stayed overnight on one occasion, “but sleeping on an air mattress aggravated my lower back pain so much”. The other times he has “driven up with my family just for the day”.[39]
[39]Exhibit P1, page 18, paragraph 37
(n) He has lost his libido because of his lower back pain. He and his wife planned on having more children but because of his loss of libido they have not really tried to have another child. He was also worried about the financial impact of another child on the family now that he has not been able to work;[40]
[40]Exhibit P1, page 18, paragraph 38
Return to the workforce
(o) Immediately following the incident, the plaintiff had some time off and then returned to work on light duties for a number of months.[41] He has not worked since around mid-2015, when he was informed that there were no more light duties available.[42] He is currently in receipt of Centrelink payments. He receives about $500 per fortnight.[43] He visits Centrelink and a job agency each month. He believes that these organisations are trying to locate jobs for him, but have not been able to find anything which fits within his physical restrictions;[44]
[41]Exhibit P1, page 14, paragraph 16
[42]Exhibit P1, page 14, paragraph 16
[43]Exhibit P1, page 23, paragraph 21
[44]Exhibit P1, page 24, paragraph 26
Current capacity for work
(p) The plaintiff believes that by reason of his injuries, he would not be able to undertake his pre-injury duties or any suitable employment. He also believes that he would struggle to engage in any retraining.[45] He does not have any computer skills.[46] In any case, he finds it difficult to sit for prolonged periods and is regularly irritable and angry because of the daily pain which he experiences.[47] Because of his broken sleep, he is tired throughout the day and does not have a good routine. He believes that he would struggle to get to work regularly or on time because of his broken sleep.[48] He only has basic English reading and writing skills.[49] At times while giving evidence, he required an interpreter. He believes that he would struggle to work in any job which required him to read or write in English.[50] He applied for a job at an Afghan retail store in about 2015 or 2016. He believes that was for a shop assistant role. He applied face to face. As part of the interview, the owner of the store said that the plaintiff would be required to lift, bend and carry heavy things. He was unsuccessful as the owner said that with his injury, he would be unable to do the job.[51]
[45]Exhibit P1, page 24, paragraph 22
[46]Exhibit P1, page 14, paragraph 16
[47]Exhibit P1, page 24, paragraph 22
[48]Exhibit P1, page 24, paragraph 23
[49]Exhibit P1, page 24, paragraph 24
[50]Exhibit P1, page 24, paragraph 24
[51]Exhibit P1, page 25, paragraph 27
24 Under cross-examination, the plaintiff said:
(a) If the pain in his back is severe, he experiences left leg pain. If the pain in his lower back is not severe, then “it doesn’t go down my leg”.[52] In relation to the left leg, he said “I feel like there’s pain sometimes and it’s numb”[53] and sometimes “the sole [of his left foot] is getting hot”.[54] In relation to the numbness and pain in the left leg, the plaintiff said “Sometimes ... I feel [like] there is no bone at all in my left leg”.[55] He said the numbness is sometimes in his thigh, sometimes in the toes, sometimes in the heel of his foot.[56] He has recently begun experiencing some pain in the right leg, but it is not as bad as the pain in the left leg and he does not experience any numbness in the right leg;[57]
[52]Transcript (“T”) 14, Line (“L”) 23-25
[53]T21, L8-9
[54]T21
[55]T21, L24-25
[56]T22, L17-26
[57]T23, L8-26
(b) That his pain varies from “something like a 4”[58] when he has taken his medication, up to on average, 7 or 8,[59] where “0” is no pain, “10” is excruciating pain, or pain of the worst kind, and “5” is in the middle.[60] He said his pain has been as bad as an “8, 9” when it is cold.[61] He qualified the evidence set out above by later saying (through the interpreter) “I don’t have a measurement for that” and “what do you mean by 10?”[62] and when asked again to rank his “average pain in the morning”, said “I cannot measure it”;[63]
[58]T12, L1-3
[59]T11, L28-30
[60]T11, L16-22
[61]T11, L11-15
[62]T12, L21-24
[63]T13, L10-12
(c) He has only had “excruciating” pain on one occasion “the day that I was taken to the hospital”;[64]
[64]T13,L1-5
(d) His condition has deteriorated since the injury occurred. He said it had got “a lot worse”;[65]
[65]T25,L12-18
(e) That he is suffering from depression and anxiety. He said that the depression is “because of the injury”;[66]
[66]T23, L27-31
(f) That when he attended a pain management program, he was told that he could be in any position that made him comfortable and that as a result “whenever I have that feeling of pain, I lie down”.[67] Other participants did this too.[68] He also said that he found participating in the course difficult because of the difficulties with language.[69] He found the course to be different to what he expected, as he had thought the course would assist him with “massage and swimming and lessen my pain”.[70] He did not know that there would be so much talking, “from 9 to 4, it was long hours … .”[71] Because he had waited for a long time to participate in the course, he found the course to be disappointing.[72] It was in this context that the convenor said to him “It’s not what you are expecting so you don’t need to come anymore”;[73]
(g) That he agreed that he may have told Dr Eaton that he lies down more than 50 per cent of the time at home.[74] He explained that “culturally we have carpets at home and we lie down instead of the couch … .”[75] He said that “it’s a cultural thing. Even if somebody is not injured or not sick they can lie down.”[76] He said that he lies down because of the pain and “as well as it’s a cultural thing”.[77]
[67]T27, L3-25
[68]T30, L24-26
[69]T31, L1-10;
[70]T32, L1-4
[71]T31, L26-27
[72]T32, L18-26
[73]T32, L14-16
[74]T34, L3-4
[75]T34, L11-13
[76]T34, L26-28
[77]T34, L29-30
Medical evidence regarding loss of earning capacity and pain and suffering
25 Following the incident, the plaintiff continued to see his treating general practitioner, Dr D’Argent, who described the plaintiff’s symptoms in the following manner:
“… on palpation there was discomfort over the lumbar spine and the straight leg raising was grossly impaired … He is currently unable to do his pre-injury duties which involves heavy lifting, pushing pulling and repetitive bending. He has no formal training or education for any skilled employment. He is also unable to sit or stand or walk for long because of the back and leg pain … .”[78]
[78]Exhibit P1, pages 26-27 and 29
26 Associate Professor Bittar’s reports include the following observations:
“… He had a normal range of lumbar flexion but extension was very restricted and painful. He had bilateral lumbar paravertebral muscle spasm and tenderness.
… .”[79]
“… He remains totally incapacitated for work.”[80]
[79]Exhibit P1, page 40;
[80]Exhibit P1, page 42, letter to the plaintiff’s treating general practitioner, Dr D’Argent
27 In his report dated 6 May 2018, Dr Ali Mehr recorded that the plaintiff:
“… could not toe walk or heel walk due to pain. He could not single leg stand because of the pain. Range of motion of the lumbar spine was significantly and globally limited due to pain … .
…
Prognosis for chronic pain is guarded due to significant chronicity of the condition.
…
… Prognosis for return to pre-injury work or any other physical work is poor due to significant physical limitations … .
…
I think return to some sort of sedentary job can be considered in the future. At this stage and for the foreseeable future, it is not possible, but with providing [a] comprehensive pain management program and a return to work program and retraining it can be possible in the future … .”[81]
[81] Exhibit P1, page 53-55
28 In his most recent report dated 18 October 2018, Dr Sullivan stated, in relation to pain and suffering:
“He now reports pain in both his low back and his left leg. He reports his back pain as being constant rating at least 4/10 on numerical scale with activities and exacerbations causing flares to between 8-9/10. He finds sitting especially aggravates his pain … [as] does any sort of lifting, bending or twisting.
He reports left-sided leg pain and associated numbness. The numbness is increased when sitting for extended periods of time. He reports background pain as being 4/10 on numerical rating scale with exacerbations of pain up to 8/10. He reports a reduction in his functional tolerance. He reports a sitting tolerance of around 20 to 25 minutes and a standing tolerance of around 10 minutes. He is able to walk. When he does so, he gets a severe burning pain in this leg. If he continues walking this pain does subside and he can then continue walking for around 30 minutes. He has a driving tolerance of around 25 minutes.
He is incapacitated in terms of domestic activities of daily living. He relies on his wife to undertake all domestic duties including cooking, cleaning, shopping and so forth. He has some difficulties with some personal activities of daily living including showering and dressing and receives some help from his wife in these activities. He has further impairments in terms of reduction in activities he partook in prior to the injury. These include playing soccer, swimming, playing snooker, playing cricket and going on picnics. Essentially, he has ceased all of these activities. He reports substantial reduction in terms of playing with his children.”[82]
[82]Exhibit P1, page 64
29 In relation to current capacity for work, Dr Sullivan said:
“Mr Ali is effectively precluded from returning to his pre-injury work as a baker. He is unlikely to be able to return to work as a machine operator. I would expect if anything he [could] undertake some very light duty in clerical-type work at a sitting/standing desk on a part-time basis perhaps two to four hours per day [once] or twice per week to a maximum perhaps of around 10 hours per week. I think his chances of finding appropriate work under these circumstances are extremely limited. I expect that these limitations will continue into the foreseeable future.”[83]
[83]Exhibit P1, page 68
30 Similarly, Dr Slesenger, a specialist occupational physician, stated, in his report dated 19 October 2018:
“I advise against Mr Ali returning to work performing pre-injury duties as the job demands are likely to lie outside his capacity limits.
… At this stage, taking into consideration Mr Ali’s age, his education, his past occupational experience, his residential location, his past employment history, his literacy limitations, his driving limitations, his qualifications, his lack of computer skills, the variation of his symptoms and the medication side effects, he could not return to work in a role for which he has suitable training and experience on a consistent and reliable basis.”[84]
[84]Exhibit P1, pages 87-88
31 Mr Carey, orthopaedic surgeon, who provided a report for the defendant, but on whose opinion the plaintiff ultimately relied, did not address the plaintiff’s residual capacity for employment.
Expert evidence regarding loss of earning capacity
32 In a report dated 25 October 2018, Ms Mandy Morgon, human resources consultant, provided her opinion as to the plaintiff’s capacity for suitable employment arising out of her assessment of the plaintiff on 1 October 2018, viz:
“In my opinion as a recruiter … I believe [Mr Ali’s] ability to perform his pre-injury role or in any of his pre-injury working environments has been significantly affected by his back injury and subsequent physical restrictions on their own and even …more with his reported fatigue, memory loss, lack of concentration and the possible negative side-effects of his medications … .
It is my opinion from a recruitment perspective, that [Mr] Ali will have great difficulty in efficiently and consistently performing suitable alternative employment due to:
· His pre-injury skills and work experience being gained in physically demanding positions, which according to his doctors he is now unable to perform unrestricted due to his back injury and subsequent restrictions.
· His limited work capacity due to his injury, and as a result, his likely poor commercially productive work output in comparison to his co-workers.
· His physical restrictions, fatigue, memory loss, lack of concentration and the reported negative side-effects of his medications impeding his ability to safely perform light bench/factory type duties and operating machinery.
· His limited spoken English and literacy skills, lack of any computer skills or administration/clerical experience, physical restrictions, fatigue, memory loss, difficulties concentrating potentially limiting his ability to retrain into and then efficiently perform office/administrative duties to a commercially acceptable standard
· His lack of current work experience and having potentially inadequate or being devoid of work ready skills as a result of a long-term absence from the workforce.
… .”[85]
[85]Exhibit P1, pages 97-98
33 I note that Ms Morgan was not required to attend for cross-examination. No contrary opinion from a suitable qualified expert was produced in support of the defendant’s contention that the plaintiff had a present capacity for suitable employment.
The issues
The Plaintiff’s credit
34 No serious attack was made on the plaintiff’s credit during the hearing; however, on a number of occasions, Counsel for the defendant pressed the plaintiff during cross-examination about the accuracy of matters referred to in various doctors’ reports. It was my observation that these issues arose at least in part due to language difficulties and cultural misunderstandings.
35 For instance, it was put to the plaintiff that he had told Dr Eaton that he lies down “for most of the day”. Underlying the question was an assertion that if true, this conduct evidenced “abnormal illness behaviour”. The plaintiff readily conceded that this information may have been given to the doctor, and explained that it is part of his culture for people to lie on carpets (instead of sitting on the couch), even if they are not injured.
36 The plaintiff was challenged concerning his failure to complete a pain management program. Under cross-examination, he explained that during the course he experienced difficulties with language. He had thought the course would be more practical and would involve “massage and swimming and lessen my pain”.[86] It was in this context that the convenor said that if the course was not what he was expecting, “you don’t need to come anymore”.[87]
[86]T32, L1-4
[87]T32, L14-16
37 Counsel also questioned the plaintiff about his description of his pain to Dr Slesenger as being “severe, constant pain” which is both “dull” and “sharp”. The explanation lay in the plaintiff’s evidence, which was somewhat unclear due to difficulties with English expression, until the plaintiff explained “It is up and down. Sometimes it is severe. Sometimes it is not.”[88] I also note that in his affidavit sworn 15 January 2018, the plaintiff stated: “I find that moving or using my back usually aggravates the pain from a tight and constant type pain, to a more sudden shock like pain.”[89] This is consistent with the explanation given to Dr Slesenger.
[88]T22, L12-16
[89]Exhibit P1, page 5, paragraph 29
38 Three short pieces of film of the plaintiff engaging in day-to-day activities was produced, but showed no activity that exceeded the limitations which were said by the doctors to be appropriate given the plaintiff’s present physical restrictions.[90] To the extent that one piece of film on the DVD showed a male engaging in apparently unrestricted movement from lying to sitting to standing in a park, it was agreed by both parties that this image was not of the plaintiff.[91]
[90]Exhibit D2
[91]T39, L7-31 – T40, L1-4
39 Having had the benefit of observing the plaintiff while he was giving evidence to the Court, I formed the view that he was a co-operative witness, who appeared to be doing his best to give accurate responses to the questions asked of him. During cross-examination, he gave his evidence openly and without embellishment.
40 Furthermore, I find that the plaintiff's account of events has remained consistent throughout the period during which he has seen his treating medical practitioners, consulted with the medico-legal assessors and provided evidence to this Court.
41 After a consideration of all the evidence and in particular, the evidence of the plaintiff, I consider that he was a credible witness, in the sense of being a truthful person. At no time did I gain the impression that he was attempting to mislead the Court, or exaggerate his symptoms.
Compensable injury
42 The details and occurrence of the incident are not in dispute.
43 The defendant focussed on reports in which it was opined that there was a component of “abnormal illness behaviour” to the plaintiff’s presentation.[92] Thus, there is an issue as to whether the pain and suffering consequences alleged by the plaintiff have a “substantial organic basis”.[93] As submitted by counsel for the defendant, in this case, this analysis is also relevant to whether the plaintiff’s loss of earning capacity is related to the consequences of an organic injury.[94] He emphasised that the key to this analysis lies in the medical reports tendered into evidence.[95]
[92]See for analysis of medical reports for example T66-67
[93]Meadows v Lichmore Pty Ltd [2013] VSCA 201, at paragraphs [21]-[24], per Maxwell ACJ; Fokasv Staff Australia Pty Ltd [2013] VSCA 230; Victorian WorkCover Authority v Nguyen [2016] VSCA 284
[94]T43-44 and T70-71;
[95]T43-44, 66-67 citing Mutual Cleaning & Maintenance Pty Ltd v Stamboulakis [2007] VSCA 46
44 It is well established that in serious injury applications where this issue is raised, a two-step process of analysis should be adopted.[96] As mentioned above, the first is to ask whether there is a substantial organic basis for the relevant consequences relied upon. If the answer to that question is in the affirmative, and if the relevant consequences satisfy the statutory criterion, then the application will succeed without the need for any “disentangling” of the physical versus the psychological contributions to those consequences.[97]
[96]Meadows (ibid) at paragraph [21]
[97]ibid
Substantial organic basis
45 Each of the plaintiff’s treaters gave opinions that the injury to the plaintiff’s lumbar spine was organic in origin:
(a) on 10 May 2016, Dr D’Argent, the plaintiff’s general practitioner, reported that the plaintiff’s diagnosis is “Musculo-ligamentous injury”;[98]
[98]Exhibit P1, page 32
(b) on 22 November 2015, Professor Richard Bittar, neurosurgeon, reported that the plaintiff “presented with lower back pain secondary to either facet joint trauma or musculoligamentous injury”;[99]
(c) on 14 September 2016, Dr Ali Kain Mehr, rehabilitation specialist and pain fellow, diagnosed the plaintiff as suffering from “Chronic axial lumbar spine pain, possibly facetogenic, discogenic. S1 joint dysfunction, muscular with features of central sensitisation.”[100]
[99]Exhibit P1, page 40
[100]Exhibit P1, page 45
46 The plaintiff’s medico-legal experts were of the same opinion:
(a) in a report dated 22 March 2016, Dr Richard Sullivan, a specialist anaesthetist and interventional pain specialist, observed that “the plaintiff described a fairly constant but movement aggravated pain across the belt line in the low back … . He also has pain consistent with an L5 and S1 distribution sciatica which is described as a sharp and shooting pain, again movement aggravated.”[101] In Dr Sullivan’s assessment, the plaintiff presented with “a chronic pain of organic basis”.[102]He said that the plaintiff’s pain condition was “consequent to his work injury sustained in November 2014. The origin of his pain is likely to be a combination of musculoligamentous and neural irritation. … .”[103]
[101] Exhibit P1, page 58
[102]Exhibit P1, page 59
[103]Exhibit P1, page 58
(b) in a report dated 6 May 2016, Dr Sullivan again observed that the plaintiff has a “chronic pain condition” and explained that this had occurred “through a process of central sensitisation,” which meant that the “organic back injury has culminated in a chronic medical condition that precludes him from undertaking [his previous duties] without significant aggravation of his pain. …;”[104]
[104]Exhibit P1, page 61
(c) in a report dated 18 October 2018, Dr Sullivan confirmed his diagnosis of a “chronic pain condition” and described it as being “of considerable proportion”.[105] He said that the plaintiff’s condition is “likely to relate to a physiological process known as central sensitisation. Central sensitisation is implicit in the diagnosis of a chronic pain condition. Central sensitisation has an established organic basis. I therefore believe that [the plaintiff] has an organic component to his pain presentation. I believe that any psychological or psychiatric component [is] secondary to his chronic pain condition. His MRI of 2016 demonstrates structural change in the form of lumbar disc injury that is consistent with the described mechanism of injury that is reported to have occurred in November 2014;”[106]
[105]Exhibit P1, page 68
[106]Exhibit P1, pages 68-69
(d) in a report dated 3 February 2017, Dr Kilner Brasier, occupational physician, diagnosed the plaintiff as suffering from “facet joint arthropathy, chronic bilateral pars intra-articularis defects at L5/S1. He has significant left sided sacroiliac joint dysfunction. He suffers from broad-based disc bulges at L4/5 and L5/S1.”[107] Dr Brasier’s opinion is that the “… pars defect (identified by the MRI conducted on 13 September 2016) is a contributing factor to … [the plaintiff’s] condition;”[108]
[107]Exhibit P1, page 74
[108]Exhibit P1, page 74
(e) in his report dated 19 October 2018, Dr Joseph Slesenger noted the various imaging reports, including an x-ray dated 25 November 2014 which stated “There is a grade 1 spondylolisthesis of the L5/S1 level. There are bilateral [L]5 pars defects. Disc height is well preserved. Sacroiliac joints are normal.”[109]
On the basis of all the evidence, including this report and an MRI report dated 13 September 2016 which showed “Minor broad based disc bulges L3/4 and L4/5, chronic bilateral L5 pars defects, without any significant anterolisthesis of L5 in relation to S1”, Dr Slesenger concluded that he was satisfied that the plaintiff “suffered a mechanical injury to the lumbar spine and has developed chronic lower back pain with radiating features …”.[110] In Dr Slesenger’s opinion, “… [the plaintiff’s] current impairment has an organic basis … and … this is significant”.[111]He said further “I note the limited non-organic features and I am of the opinion that these are not significant”.[112]
[109]Exhibit P12, page 84; see also x-ray report at exhibit P1, page 107
[110]Exhibit P1, page 85
[111]Exhibit P1, page 88
[112]Exhibit P1, page 88
47 In addition to the opinions set out above, the plaintiff tendered the report of Mr Roy Carey dated 12 October 2017, which made the following observations:
(a) on examination, “flexion was accompanied by some visible and palpable paravertebral muscle spasm”;[113]
[113]Exhibit P2, page 4
(b) no imaging was available for examination, though Mr Carey noted the content of the 2014 MRI report and the apparent difference between that report and the report of the 2016 MRI scans (to which he found reference in the report of Dr Wilson, with which he was supplied). Mr Carey was unable to reconcile the differences between the imaging.[114] He was not advised of the findings made on x-ray in 2014;[115]
[114]Exhibit P2, page 5 at 3.0
[115]Exhibit P2, Attachment 2, schedule of materials provided to the expert
(c) he thought that the plaintiff had “chronic low back and left lower leg symptoms in the absence of a specific diagnosis”;[116]
[116]Exhibit P2, pages 4 & 5
(d) he observed that “non-organic signs of abnormal illness behaviour today were absent”[117] and that “the range of motion observed at the time of examination is consistent with … [the plaintiff’s] observed behaviour during consultation”;[118]
[117]Exhibit P2, page 4
[118]Exhibit P2, page 5 at 2.0
(e) the plaintiff’s “presentation is consistent with the workplace injury as described and subsequent treatment”;[119]
(f) the plaintiff “appeared a pleasant and genuine witness to his complaints with no evidence of embellishment”.[120]
[119]Exhibit P2, page 5 at 4.3
[120]Exhibit P2, page 6 at 9.0
48 The defendant’s medico-legal experts gave the following opinions:
(a) in his report dated 18 December 2014, Dr Leon Leu, an occupational physician, stated that the plaintiff “… has a clinical picture of discogenic lower back pain but the MRI scan does not show any evidence of nerve root impingement at any spinal level …”.[121] Dr Leu also noted that “there appeared to be a degree of [illness] behaviour …”.[122] I note that Dr Leu was not in receipt of any of the relevant imaging reports at the time of his examination of the plaintiff, particularly in relation to the 2014 x-ray;[123]
[121]Exhibit D1, page 5
[122]Exhibit D1, page 6
[123]Exhibit D1, page 8, list of reports and other material with which the expert was supplied
(b) in reports dated 30 March 2015 and 10 June 2015, Dr David Barton, consultant occupational physician, opined that the plaintiff had “developed a mild mechanical lower back problem complicated by a degree of illness behaviour …”.[124] I note that the only imaging which Dr Barton made reference to was the report of the 2014 MRI scan which was reported as being “normal”.[125] From the list of documents with which Dr Barton was supplied, it is clear that Dr Barton was not in receipt of the 2014 x-ray report;[126]
[124]Exhibit D1, page 12
[125]Exhibit D1, page 12
[126]Exhibit D1, page 15
(c) in a report dated 21 March 2016, Mr Michael Dooley, an orthopaedic surgeon, diagnosed the plaintiff as having “sustained a soft tissue injury to his lumbar spine in the work related episode of November 2014 … most likely … a musculoligamentous type injury. … ”.[127] In Mr Dooley’s opinion, “there has been [no] injury to the facet joints, sacroiliac joint etc”.[128] Mr Dooley was of the opinion that the “constancy and intensity of … [the plaintiff’s] ongoing pain … are greater than one would expect for his organic condition” and that “the reason for his disproportionate pain is his psychological reaction to his situation”.[129]
[127]Exhibit D1, page 20
[128]Exhibit D1, page 20
[129]Exhibit D1, page 20
In terms of imaging, Mr Dooley was aware of the 2014 x-ray report which showed “pars defects at the L5 level and a grade one spondylolisthesis”; however, he was in possession of, and examined, the 2014 MRI scan, which he stated was “normal”. He was troubled by the difference between the two investigations and offered to examine the x-ray films. No further report was ever obtained from Mr Dooley. Mr Dooley was never informed that the 2016 MRI scan confirmed the findings originally made on the 2014 x-ray;
(d) Dr George Wilson, occupational health physician, examined the plaintiff in September 2017. In a report dated 27 September 2017, Dr Wilson noted that the 2016 MRI of the lumbosacral region (which he did not see but noted that it had been referred to in other material) “showed minor broad-based disc bulge at L3/4 and L4/5 and chronic bilateral pars defect with no significant anterolisthesis”.[130] On this basis, Dr Wilson thought that the plaintiff “may have sustained a musculoligamentous injury of his lumbosacral region”.[131] He thought that the findings on the MRI showed “mild pre-existing degenerative changes”.[132] The basis of this conclusion is not clear. Dr Wilson also noted that his clinical examination “shows inconsistencies between observed and examined lumbosacral movement”.[133]
(e) in a report dated 10 November 2016, Dr David Eaton, a specialist occupational and environmental physician, noted the differential diagnoses that had been made by Dr Ali Kian Mehr, viz[134] “facetogenic, discogenic, SI joint dysfunction or muscular pain with features of central sensitization”. He was not asked to, and did not reach any specific diagnosis in relation to the plaintiff, commenting only on his ability to return to work, which he described as being “no current work capacity”. He noted that there appeared to be “some non-physical components to the … [plaintiff’s] presentation”[135] without giving any further analysis or making a quantitative assessment of the extent of the issue.
[130]Exhibit D1, page 23
[131]Exhibit D1, page 24
[132]Exhibit D1, page 24
[133]Exhibit D1, page 24
[134]Exhibit D1, page 33
[135]Exhibit D1, page 35
49 Each of the plaintiff’s treaters, the plaintiff’s medico-legal experts and Mr Carey, all found a substantial organic basis for the consequences of the plaintiff’s injury to his lumbar spine.
50 To the extent that the defendant’s experts expressed an opinion in relation to this matter, it is clear that Doctors Leu and Barton and Mr Dooley were not in possession of all of the relevant imaging necessary to provide a definitive opinion. Mr Dooley’s opinion in relation to the degree of pain from which he would have expected the plaintiff to be suffering given his physical injuries, must be qualified by the fact that he is an orthopaedic surgeon and not a pain expert.
51 Neither Dr Wilson nor Dr Eaton specifically addressed the matter.
52 On the basis of the opinions set out above, the weight of the evidence satisfies me that the consequences of the plaintiff’s injury to his lumbar spine, have a substantial organic basis.
Is the compensable injury permanent for the purposes of the Act?
53 Having considered the relevant reports from Mr Carey,[136] Dr Slesenger,[137] Dr Mehr[138] and Dr Sullivan,[139] I find that the plaintiff is likely to continue to suffer from symptoms in his lumbar spine for the foreseeable future. Thus, I find that the injuries sustained by the plaintiff in the incident are permanent for the purpose of the Act.
Is there a need to disentangle consequences suffered by the Plaintiff which are psychological in nature, from the physical consequences of his injuries?
[136]Exhibit P2, page 5 at 4.2 and 4.4
[137]Exhibit P1, page 89
[138]Exhibit P1, page 56
[139]Exhibit P1, page 69
54 As set out above, Counsel for the defendant submitted that in this case, there is a need to disentangle the plaintiff’s physical consequences from the psychological consequences suffered by him.
55 The plaintiff bears the burden of proof in any disentangling exercise which needs to be undertaken.
56 I have accepted that there is a substantial organic basis for the physical consequences of the injury to the plaintiff’s lumbar spine.
57 Applying the principles set out above, no further disentangling needs to be undertaken. The only matter left to decide is whether the physical consequences of that injury produce a sufficient degree of impairment to satisfy the relevant test under the Act.
Conclusions as to economic loss
58 It was agreed as between the parties that the plaintiff’s pre-injury earning capacity was $971 per week.[140]
[140]T40, L4-7
59 I have referred above to the medical and other expert evidence replied upon by the plaintiff in support of his submission that he has no capacity either for his pre-injury duties or any other suitable employment. I note that some of the defendant’s medical evidence is to similar effect, viz:
(a) Dr Leon Leu stated that that plaintiff “can only perform sedentary duties at approximately the hours he is doing at present. The problem is that he does not speak or read English to any significant degree”;[141]
[141]Exhibit D1, page 6
(b) Mr Michael Dooley stated that from an orthopaedic point of view, “[… the plaintiff] would not be able to carry out regular heavy physical work … I believe that he has a physical capacity to carry out light physical work and clerical duties”.[142] Mr Dooley did not address the practical barriers facing the plaintiff in relation to rehabilitation and retraining, no doubt because such an opinion would have been outside his area of expertise;
[142]Exhibit D1, page 21
(c) Dr David Eaton stated that the plaintiff “has no current work capacity, based on his description of his symptoms and his function”;[143]
(d) Dr David Barton said that he does “not believe that there is any ongoing incapacity for normal hours and normal work”.[144] I note that this opinion is based upon a conclusion that the plaintiff’s symptoms are the product of “functional features”. Similarly, Dr George Wilson thought that the plaintiff’s presentation was entirely due to psychological factors.[145] I have already addressed this issue and my findings in relation to it. Having concluded that the weight of the evidence satisfies me that there is a substantial organic basis for the plaintiff’s injury, I am unable to place any weight on the opinions of Doctors Barton and Williams in relation to the plaintiff’s loss of earning capacity.
[143]Exhibit D1, page 35
[144]Exhibit D1, page 16
[145]Exhibit D1, pages 22-25
60 On the basis of the opinions set out above, the weight of the evidence satisfies me that the consequences of the plaintiff’s injury to his lumbar spine have resulted in the plaintiff being unfit for both his pre-injury duties and indeed for any alternative employment.
61 I am also required to consider issues of retraining and rehabilitation pursuant to s325(g) of the Act.
62 In light of my findings as to the plaintiff’s impairment and his incapacity for employment, I am satisfied that there is no rehabilitation or retraining that would be appropriate to be undertaken by the plaintiff which would alter the fact that he has a permanent loss of earning capacity of 40 per cent or more. As rehabilitation and retraining have nothing to offer the plaintiff in terms of his capacity for employment, the plaintiff has satisfied the requirements of s325(g) of the Act.
Conclusions as to pain and suffering
Pain
63 I find that the plaintiff feels pain in his lumbar spine most of the time and that moving or using his back aggravates this pain. I accept that he occasionally feels pain radiating down the back of his left leg.
64 I find that the plaintiff’s ability to do things is variable. I accept his evidence and find that he can generally stand in one spot for about 15 to 20 minutes before the pain is aggravated and he needs to change positions and that his sitting capacity varies. I find that the plaintiff can walk for approximately 30 to 45 minutes if he has taken his medication and the weather is not too cold. I accept that if the plaintiff walks for a long time, his pain increases at night time.
65 I find that the plaintiff can bend over if he needs to if he has taken his medication. I find that bending repetitively tends to aggravate the plaintiff’s pain. I accept that the plaintiff can lift things but that if he lifts heavy things, the pain is aggravated.
Effect on sleep
66 I find that because of the pain he experiences, the plaintiff only sleeps for short periods of around three hours, before waking.
Effect on social life and activities of daily living
67 I find that the plaintiff is restricted in relation to performing household chores. In particular, I find that he can no longer carry out the physical activities that he used to perform around the house prior to the incident, such as vacuuming. I find that this restriction has had a detrimental effect on the plaintiff’s relationship with his wife, as she feels “extremely tired and stressed because I feel like I have to keep the house running on my own”.[146]
[146]Exhibit P1, page 104, paragraph 6
68 I find that the plaintiff can drive only short distances without aggravating his pain. I accept that he now struggles to engage in the social activities that he used to enjoy such as playing soccer and cricket with his friends and camping.
69 I find that the plaintiff has lost his libido because of his lower back pain.
Work restrictions
70 As set out above, I find that the plaintiff has no capacity for his pre-injury employment or indeed for any alternative employment.
71 I find that the restrictions referred to above have come about by reason of the injuries suffered by the plaintiff during the incident. I find that these work restrictions are a significant consequence for the plaintiff and constitute compelling evidence of the extent of the pain that the plaintiff is in.[147]
[147]Peak Engineering Pty Ltd & Anor v McKenzie [2014] VSCA 67 at paragraph [45], per Maxwell P
Medication and treatment
72 I find that the plaintiff takes medication as referred to in his evidence (see paragraph 23(b) above). I find that the plaintiff applies a heat pack and Tiger Balm at night to help alleviate the pain in his lower back.
73 I find that the plaintiff’s condition has stabilised and there is no available treatment to improve the situation.
Do the consequences satisfy the test for a “serious injury” under the Act?
74 In Haden Engineering Pty Ltd v McKinnon,[148] the Court of Appeal made observations about the task of evaluating the pain and suffering consequences of an injury. In particular, Maxwell P observed that the consequences of pain and suffering encompass both the plaintiff’s experience of pain, as well as the disabling effect of the pain on the plaintiff’s physical capabilities (including capacity for work) and enjoyment of life.[149] Part of the process is for the Court to assess the intensity of pain which the plaintiff experiences, together with the frequency and duration of pain episodes. Ultimately, the question of whether an injury satisfies the relevant test under the Act, is one of impression or value judgment.
[148](2010) 31 VR 1
[149](ibid) at paragraph [9]
75 The weight to be attached to the plaintiff’s account of the pain experience will depend upon an assessment of the plaintiff’s credibility.[150]
[150](ibid) at paragraph [12]
76 I have already made observations about the plaintiff's demeanour and presentation in Court, and in particular, I have found that the plaintiff was a truthful witness.
77 An analysis of the evidence clearly demonstrates that many aspects of the plaintiff’s life have been adversely affected by the consequences of the injuries that he suffered during the incident. The plaintiff endures permanent, daily pain, requiring daily medication, which of itself, has been held to raise a real prospect of a “very considerable” consequence.[151] Further, this pain has caused significant restriction in his ability to work and has impacted on his ability to perform the usual activities of daily living.
[151]Kelso v Tatiara Meat Co Pty Ltd (supra) at paragraph [199] per Dodds-Streeton, JA
78 Taking into account all of the evidence, I am satisfied that the pain and suffering consequences of the plaintiff’s injury to his lumbar spine are “serious”, and satisfy the relevant test as set out in the Act.
Conclusion
79 Accordingly, pursuant to s335 of the Act, I grant leave to the plaintiff to bring proceedings for damages for pain and suffering and loss of earning capacity in respect of the injury that he suffered on or about 13 November 2014.
80 I will hear the parties on the issue of costs.
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