Almi v VWA

[2019] VCC 560

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CIVIL DIVISION

Revised
Not Restricted
 Suitable for Publication

SERIOUS INJURY

Case No. CI-18-04613

ALI ALIMI	Plaintiff
v
VICTORIAN WORKCOVER AUTHORITY	Defendant

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JUDGE:	JORDAN
WHERE HELD:	Melbourne
DATE OF HEARING:	10-12,24 April 2019
DATE OF JUDGMENT:	26 April 2019
CASE MAY BE CITED AS:	Almi v VWA
MEDIUM NEUTRAL CITATION:	[2019] VCC 560

REASONS FOR JUDGMENT
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Subject:  ACCIDENT COMPENSATION
Catchwords:            Serious injury – low back
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:            
Judgment:                Leave granted to issue proceedings for the recovery of damages

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Mighell QC with Mr L Allan	Zaparas Lawyers
For the Defendant	Mr P Elliott QC with Mr G Coldwell	Russell Kennedy

HIS HONOUR:

1       Leave is sought for both pain and suffering and loss of earning capacity due to a paragraph (a) low back injury and impairment suffered on 5 February 2015. The plaintiff was injured  in the course of his employment as a truck driver when he was at a Big W store and was trying to move a pallet on a pallet jack. He suffered an admitted compensable injury to his low back.

2       The worker was only 21 years of age at the time so he fits into that category of applicant where a loss of earning capacity claim does not require the three years pre-and post analysis. Any loss of earning capacity is measured on the time honoured general common law approach to assessing loss of earning capacity.

3       Mr Alimi came to this country as a 16-year-old refugee after being in detention.[1] He was born in Afghanistan and his brother and father are believed to have been killed in the war there. He was then raised in Pakistan but he really has no schooling save for some English courses. His two affidavits were sworn through an interpreter and he needed a professional one when in the witness box.[2] He cannot converse consistently in any meaningful way in English. His verbal English skills are quite poor as is his literacy.

[1]Transcript(T)114-115

[2]Plaintiff’s Court Book(PCB)8,14,26

4       To his credit he obtained jobs after coming to Australia in manual labouring type positions and even gained  licences to drive a forklift and a rigid truck. He was working truck driving on a cash basis when he sustained the subject injury and there was some dispute about his actual wage. The arithmetic is not really to the to the point as after considering all the evidence, the probabilities are he has no realistic capacity for employment.

5       The issues described by counsel for the defendant about this admitted compensable back injury were said to involve some debate about the extent of the pathology in his spine, in particular regarding the extent of nerve root compromise or compression. Also it was said there was exaggeration by Mr Alimi of his injury and if he has suffered any permanent loss of earning capacity, it is for psychological reasons as opposed to a physical or organic injury. 

6       In spite of language limitations, it was particularly informative in this case to not only hear the plaintiff give evidence over three days but also to observe his demeanour and general presentation. It has been said that these applications often involve matters of fact, degree and perception and something of a value judgment is to some extent involved when assessing the consequences of an admitted injury. I will deal later with the medical evidence, the weight of which is mostly all one way, after addressing some comments about this young man  as a witness.

7       The plaintiff is quite a simple, unsophisticated man. Even with the interpreter assisting constantly he was sometimes on the wrong page, in the wrong court book and simply not following even straightforward questions put to him patiently and very fairly by senior counsel for the defendant. At times there were delays with answers, clearly a completely wrong answer being given  and it was obvious his comprehension even with the interpreter was limited. He even  got a “clerk’ job confused with the task to “clock” on and off in a job.[3]

[3]T112-113

8       In the end though,  I found him  reliable about his back problems. I reject the argument that he exaggerated his back symptoms and disabilities. He demonstrated candour. He made admissions against interest such as some improvement following pain management and no longer needing to rely on a crutch.  I consider his background and ability to get work in this country, as well as his general presentation, illustrate a man who is motivated and wants to work. Sadly he started in Australia from a very low base in terms of earning capacity.

9       Some attack was made on his credit and two exhibits involved some short film of him on two dates in 2015 and three dates this year.[4] Only a few comments are required about these films.

[4]Exhibits1,2

10      Firstly they are mere snapshots of a few minutes over the last four years since injury. Secondly in viewing him walking around shops, attending to shopping and some driving as well as putting his infant son into a car seat, there was nothing that could be described as sustained physical activity. In particular there was nothing strenuous or vigorous in terms of demands on his low back. Thirdly there were a number of unexplained breaks in the film when suddenly without any explanation he dropped out of camera view. Fourthly there was no significant inconsistency in these films with the evidence he has given and said to doctors. Fifthly there was nothing that demonstrated any capacity, when looked at in the real world, for any manual employment with  the multitude of daily, often repetitive demands such a job would entail. Sixthly I accept his evidence that while back pain is constant, the severity can vary and he has “good days” and “bad days”.[5] Films need to be viewed in that context.

[5]T67,70,73,74

11      Finally there were a number of doctors who viewed surveillance film and their opinions were not altered.[6] In the end the credit of Mr Alimi was not impugned by the videos or generally in cross-examination. If anything, when one looks at the life journey he has been on and the objective pathology in his low back, he is a man who understates his back symptoms and impairment. 

[6]Doctors MacBeth,Aliashkevich,Bittar,Blombery at PCB180,256,107-108,211

12      Finding him  a reliable witness and one trying at all times to tell the truth through the difficulties of language, I accept his evidence about his capacity to work. He is after all the best judge of what he can do and not do. He said as well as pain in his lower back on the left side it sometimes goes down his left leg and it often feels numb. This makes it difficult to walk and sometimes gives way causing him to fall over on occasions in the past. Just his problem of flare-ups of back pain when he sits or stands for too long is of great moment in judging any capacity for work when looked at realistically.[7]

[7]PCB11-12

13      I accept his evidence that “I did not feel capable of working due to back pain, I feel too much pain to be able to work. I have never had a desk job or job involves computers.”[8] His most recent affidavit only a week or so ago, summed up the evidence I accept that he continues to have pain on the left side of his lower back which is there all the time, often going down his left leg sometimes making it feel numb and pain is worse by sitting or standing for too long.[9]

[8]PCB13

[9]PCB23

14      I accept as accurate his final comment with respect to both  work and motivation “I would love to return to work, but I don’t know what I could do with my skills and with my pain levels. I feel like I would struggle to be a reliable employee due to the frequent flare-ups that I get of my back pain”.[10] In cross examination he said forlornly “…I’ve lost my ability to work”.[11]

[10]PCB26

[11]T110

15      In a rather sad vein he stated that before his injury “…my aim was to continue to pursue a truck driving career and earn as much as I could in order to provide for my young family” and  “I was only 21 when I was injured, and I had hoped to have a career ahead of me truck driving. I do not feel capable of truck driving anymore due to the problems I have with back pain after sitting for a long time, and frequent flare-ups I get of that pain. The other physical work that is involved in being a truck driver, such as dealing with gates, loads, tarpaulins and that sort of thing would be very difficult for me to deal with as well.”[12]

[12]PCB26

16      These sorts of demands in any type of the unskilled, manual  work that this man is suited for, would give him many of the same problems as he would encounter driving a truck. Looking at this case realistically, this young worker brought  to the employment market in this country a willingness to work and a strong back and very little else. He no longer has a strong back and it is impaired for the foreseeable future. Given that fact together with his language problems, lack of skills, lack of education and rather simple personality he is all but unemployable and has certainly lost 40% or more of his earning capacity.

17      He has been consistent in describing constant back pain and pain that can reach down his left leg. Back pain “is there all the time” but can vary in severity.[13] It can  reach  excruciating levels at times.[14] What is particularly relevant, especially to a capacity for work, is that sitting and standing for too long causes symptoms to increase.[15] These are very limiting symptoms for any person but in one so young, they are both extremely limiting and indeed troubling given the evidence I accept that they have been with him now for over four years. The way he often altered his posture in court each day was consistent with the problems simple, everyday activities such as prolonged sitting and standing caused him.  

[13]PCB23,Transcript(T)37,45

[14]PCB12

[15]PCB11-12,23-24

18      Turning to the medical evidence, it is useful to start with the objective pathology the  extensive  radiology shows. X-ray, CT scanning and no less than three MRI’s  virtually speak for themselves about the relevant and serious damage to this very young spine.[16] Virtually every week spinal impairments come before me sitting daily in serious injury applications. While there is here some debate about the disc damage in the sense of how far the  compression or compromise on the left S1 nerve extends, it  is apparent the clear weight of these radiological investigations shows objective damage in this very young spine. He has lumbar disc damage which extends to the nerves and readily explains his constant back pain and left leg symptoms.

[16]PCB262-268

19      From the earliest consultations specialist surgeons have expressed no doubt about his physical low back injury. After the 5 February 2015 workplace trauma he saw Dr B Loh, orthopaedic surgeon, at the Monash Health outpatients orthopaedic unit in June 2015. He recorded in the Monash correspondence “a four month history of back pain” “and a diagnosis of “L5/S1 pathology…contacts S1 nerve root.”[17] He noted spasm which I take to be an objective sign of injury and said it was “Likely as a result of acute injury”.[18]

[17]PCB40

[18]PCB41

20      The first general practitioner was Dr P Westmore and his opinions in 2015 and 2016 are out of date. He clearly diagnosed organic injury of the L5/S1 disc with S1 nerve impingement. As early as 2015 his patient was unfit for all pre-injury work and in 2016 that opinion was unchanged.[19] Pessimism was warranted even back in 2016 when the doctor said “His prognosis is uncertain due to the chronicity of his condition and his failure to respond to therapy thus far.”[20]  

[19]PCB42,43

[20]PCB42

21      The current local doctor who probably knows him best of all is Dr Q Hamimi. Only a few weeks ago he spoke in very plain terms about diagnosis and described it as  “chronic lower back pain MRI reported left focal posterocentral disc bulge at L5/S1 level which makes contact with the existing S1 nerve root”.[21]  

[21]PCB283

22      Similarly as to work, his view was crystal clear. “He is currently unfit for all pre-injury employment” and as to alternative work he said “I believe he is fit for suitable duties, light duties like office type of employment start with 3-4 hour per day 2-4 days a week is recommended and gradually after assessment to be increased.”[22]

[22]PCB285

23      I read these comments as indicating a major loss of earning capacity and some limited but somewhat equivocal hope on the part of his doctor that some light duties, somewhere, would enable a starting point return to work. The reality is though, his lack of skills and education combined with the language problem probably amount to no capacity at all out in the marketplace. He has no capacity to work in an office in this country.

24      As late as last month Professor Bittar, neurosurgeon, after seeing the third MRI diagnosed an organic injury of “ongoing left paracentral disc protrusion causing mild compression of the left S1 nerve root” and “It explains that he does have a very plausible physical basis for persistent lower back pain and left leg pain.”[23] I also accept his clear view about earning capacity that not only meant pre-injury duties were a thing of the past but “…he does not have the capacity for suitable employment on a consistent and reliable basis…taking into account his age, education, skills, English capabilities and work experience”.[24] I am comfortably satisfied this effectively amounts to no real capacity at all.

[23]PCB110

[24]PCB101

25      Professor Bittar was sent some contrary opinions from a defendant’s doctor, Dr Graeme Brazenor for comment. In a very thorough discussion that is easy to follow he dismissed those contrary views of Dr Brazenor  as being at odds with other medical opinions and the radiology which  showed clear physical injury.[25] Professor Bittar made a point of personally reviewing all the up to date radiology on 5 April 2019 and then he reviewed it again on 8 April.[26] His conclusion after considering the last MRI, which was the weight bearing one in 2019, was that the disc injury compressing the nerve root had in fact worsened.[27]

[25]PCB269-271

[26]PCB272

[27]PCB273

26      I accept Professor Bittar’s carefully considered and very current opinion about a demonstrable organic injury that is likely to be permanent  and which in reality means this plaintiff has no capacity for work. He has thus suffered more than 40% loss of earning capacity.

27      Another early treater was Dr K Brasier, occupational and environmental specialist. He diagnosed an organic injury being “a left paracentral disc prolapse at L5/S1contacting the left S1 nerve root”.[28] His patient was unfit for pre-injury duties and the doctor suggested a computer course but such an approach is no more than theoretical for this very limited, uneducated  man.

[28]PCB131

28      A Dr G Weekes, pain specialist, was another doctor charged with trying to treat this spinal injury. As did Professor Bittar, Dr Weekes provided multiple reports along the treatment journey. The most recent one was at the end of 2018 and again diagnosed the organic injury being to the L5/S1 disc with nerve root compression.

29      He was even more specific about capacity and was sent the vocational assessment the defendant relied on suggesting  alternative suitable jobs. They were packer, forklift driver, meter reader, warehouse clerk and security gatehouse officer. Dr Weekes stated his patient “…would be unlikely to perform those roles in a reliable and consistent basis”.[29] I do not need evidence to tell me a worker has to be both reliable and consistent every day to have any real capacity for employment. That is no more than common sense.

[29]PCB124

30      Dr G Avarinthan, rehabilitation specialist, also treated Mr Alimi as part of a pain management  approach. He only reported in April 2017 so it is an early report and not of great use in assessing capacity now. However he made the same organic diagnosis of disc damage contacting the nerve root.[30]

[30]PCB126

31      There are some other brief reports from people who have treated him including physiotherapists but I do not need to discuss these in detail. Some questions were directed to Mr Alimi about the physiotherapist, Justin Moar. The plaintiff was attacked in relation to the physiotherapist recommending some vocational rehabilitation which had been suspended because of ongoing pain. Persistent pain problem was mentioned in this report and that there had been some improvement from it. To some extent this cross examination was not put in its proper context because while the physiotherapist did recommend some vocational rehabilitation, it was not pointed out what came further down in the report which has to be kept in mind “…it would appear that he is unsuited to working in these environments where prolonged periods of standing, lifting, carrying are difficult to exclude”.[31]

[31]PCB87

32      I reject the suggestion that this man lacks motivation to work. A proper view of all the evidence is that he is a man who has come halfway around the world through difficult circumstances including refugee detention camps to work in this country and try and learn a new language. I am satisfied the likelihood is he wants to work and would if he was capable of doing so.

33      In the end I accept the weighty body of treating medical evidence in this case. Those doctors and others  carried the important responsibility of being charged with attending to his health and getting him back to work rather than just providing reports to solicitors in the context of a court case.

34      I accept the evidence from his treaters that he still suffers from an organic low back condition and adopting the broader brush common-law approach to loss of earning capacity, I am comfortably satisfied he has lost 40% or more of that capacity. Given the medical opinions, the years and the extent of treatment to date, this unfortunate situation is likely to remain for the foreseeable future. Nevertheless I will briefly comment on the medico-legal reports.

35      A medico-legal opinion of Mr D Brownbill is over two years old but in 2017 he diagnosed a lumbosacral disc derangement with protrusion.[32] While he thought Mr Alimi “may be” accentuating pain, the organic cause was obviously  accepted by the expert neurosurgeon.[33] While the prognosis back then was uncertain the view about work capacity was perfectly clear “I consider he is not capable of returning to work for which he is suited” and “…regard him as having lost 40 percent of his capacity to earn an income.”[34]

[32]PCB156

[33]PCB155

[34]PCB156

36      Dr Robyn MacBeth, specialist occupational and environmental physician, provided in January 2019 an extremely detailed and lengthy report that runs for some 29 pages.[35] There is little point in me quoting slabs of that report but she agreed with my finding that an acute left sided disc prolapse at L5/S1 had occurred at work on 5 February 2015 and has lead to chronic lower back and referred left leg pain.[36]

[35]PCB179-207

[36]PCB194-195

37      She considered that this organic back impairment put permanent restrictions on his physical activities that just about encompass every requirement in any manual job when those restrictions are carefully considered.[37] She specifically commented on the six job suggestions that a vocational report from the defendant advanced and dismissed these as beyond Mr Lim’s capacity. With respect to one of those jobs, warehouse clerk, she thought he did have a capacity to work on a part-time basis but for no more than 20 hours per week. But even that had to be looked at in relation to the very wide-ranging limits she put on his physical capacities as well as his need to alter posture.[38] Dr MacBeth supports a permanent loss of 40% or more of earning capacity judged at common law.

[37]PCB199

[38]PCB201,199

38      Dr A Aliashkevich, neurosurgeon and spinal surgeon, went even further on 14 February 2019 and produced a medical report that runs to 49 pages.[39] It is pointless for me to quote at length from that report except to say that he accepted there was a chronic mechanical low back and left leg pain that arose from a left L5/S1 disc protrusion contacting the S1 nerve root as a result of the work trauma.[40]

[39]PCB213-161

[40]PCB259

39      As to work he could not have been clearer. He went into the various matters that are defined under the Act as “suitable employment”. I do not have to deal with them in the specific statutory way required with an older worker. Here it is the broader brush common-law approach to loss of earning capacity that is demanded for such a young worker. Nevertheless the doctor’s consideration of each of those statutory categories lends some weight to his analysis. In what  is a very clear final statement as to capacity he said “…my opinion is that he has no current capacity for pre-injury employment and alternate modified duties in a reliable, consistent and productive manner.”[41] Given his guarded prognosis I am satisfied that this is likely to be the situation for the foreseeable future.

[41]PCB260

40      The February 2019 opinion of the consultant physician, Dr Peter Blombery, could hardly be more obvious. His diagnosis was of a prolapsed L5/S1 disc with chronic pain and after viewing the DVD video film he thought it was consistent with the patient’s presentation.[42] Regarding the central issue he also spoke in very plain terms “It is my opinion that he has no fitness for his pre-injury employment. Given the severity of his ongoing pain and his limited English as well as experience, it is my opinion that he would have no fitness for alternative duties.”[43]

[42]PCB211

[43]PCB212.PCB11

41      There are several other medico-legal reports but they are from an earlier period than the ones I have referred to. I am required to assess this case now in April 2019 so  more assistance is gained from  the very current medico-legal reports from Drs MacBeth, Aliashkevich and Blombery. But as I have already said, I am comfortably satisfied organic “serious injury” has been proved regarding permanent loss of earning capacity on the basis of the treaters’ opinions.

42      The defendant tendered a number of medico-legal opinions. A lot of these are out of date in dealing with such a young worker and I do not give them much if any weight in making an assessment now. Dr Ho, is an occupational consultant who saw the plaintiff back in 2015. It is difficult to give any weight to this doctor’s opinion because he saw the worker without an interpreter and said he “spoke English fluently.”[44] Having had the opportunity to hear this man give evidence over three days  I could hardly disagree more with such a statement by Dr Ho.

[44]Defendant’s Court book(DCB)2

43      Dr Ho re-examined the worker in 2017 when he was still unaccompanied. The doctor’s views are now quite dated. He considered the worker  exaggerated his incapacity. [45] I do not accept that Dr Ho’s opinions are soundly based and follow any full and proper communication if he considered this man’s English was fluent. The doctor also reached conclusions that are not adequately explained. Furtermore his opinions are against the bulk of medical evidence in this case and I do not accept them.

[45]DCB54

44      The environmental and occupational physician, Dr Fish, also provided two out of date reports back in 2016 in 2017. The 2016 report to the insurer seems to have been for AMA% purposes regarding the accepted low back injury.[46] At the first examination the plaintiff was unaccompanied but he came with a friend in 2016.[47] His opinion seemed to be that there was no physical injury that would stop the plaintiff working in his pre-injury work on a full-time basis. It was more  psychological than physical problems preventing his working.[48]

[46]DCB23

[47]DCB22,42

[48]DCB46

45      The reasons he reached this conclusion are not readily understood. He referred to a report from a Dr Varma and he seemed to have been influenced somewhat by it.[49] However I have not been given  this report. In 2017 he disagreed with the independent Medical Panel Opinion that stated the low back injury resulted in a permanent impairment under AMA guidelines.[50] He went on to make a statement which is not only not properly explained but also quite surprising in view of the clear radiological evidence of disc injury and nerve root involvement for a man only 21 years of age when injured. That statement was that  the MRI scan had findings that would be found in at least “25% of people of his age” and that the MRI scan was not diagnostic of a significant injury.[51]

[49]DCB46

[50]DCB30

[51]DCB45

46      He thought there had been a soft tissue injury suffered that had resolved. This opinion on what he said about MRI scanning and other radiology flies in the face of the vast weight of medical evidence from the radiologists, treating doctors and medico-legal doctors already referred to that the plaintiff relied on.

47      It should be remembered that while the Medical Panel opinion is also out of date, it arises from an independent assessment by doctors of the existence of any permanent impairment. It is not a medico-legal opinion from a doctor chosen by a party. The doctors come from a panel of  qualified experts.

48      A physician, Dr M Rahgozar, saw the worker once and that was over three years ago in  2016 so the report does not assist now. Also he did not have anything like the full set of radiology including of course the 2017 and 2019 MRI scans.

49      Professor G Brazenor , neurosurgeon, examined the worker in 2017 and 2018. He also provided a further 2019 letter but it was not based on a third examination. His opinions are rather equivocal and quite hard to follow. He  stated in his first report that on the balance of probabilities “this man may have sustained a very mild left paramedian protrusion of the L5 S1 disc in the course of his duties.”[52] He thought most workers would lose little time off work from such an injury but then said “Thus in view of this injury I am satisfied that Mr Alimi can never again return to his pre-injury duties or work as a truck driver where he has to manually handle the freight”.[53] He went on to say that he thought the disability was “feigned” and Mr Alimi’s presentation was “contrived”[54]. I cannot reconcile these statements. They are not properly articulated and explained.

[52]DCB62

[53]DCB62

[54]DCB63

50      He stated in a 2018 report that there was little or nothing in the way of back symptoms.[55] Again I find this hard to follow. If what the surgeon is really saying that there is no physical basis for these symptoms, that is one thing, because clearly the worker is still complaining of considerable back symptoms. If what the surgeon is really saying is that these are psychologically based then  that is hard to reconcile with a report he refers to from Dr N Strauss, consultant and occupational psychiatrist. The reports of Dr Strauss in the court book were not ultimately put into evidence at the end of this hearing as paragraph (c) was not pursued, but a comment is warranted. Professor Brazenor saw fit to move into the realm of psychiatry and comment “As for Dr Strauss’s theory that his pain is psychologically derived on an unconscious basis… I think that is fanciful.”[56]

[55]DCB86

[56]DCB88

51      Without hearing from him I consider Professor Brazenor for the defendant has strayed outside his own field of expertise into another field of specialist medicine. This causes me to give little weight to his opinions as he adopts more of an advocate’s role than that of an objective expert throughout his reports.

52      I should also say he seems to have formed the view that because at one stage the worker was using a crutch and another stage was not,  as well as what was in the DVD films, that the plaintiff was not genuine. The plaintiff clearly said he did not use the crutch all the time and indeed does not use it now. He made the admissions against interest that pain management had improved his pain somewhat and also that he no longer needed the support of the crutch. These concessions are consistent with a genuine witness rather than one feigning or contriving his case as Professor Brazenor concluded.

53      His final letter in 2019 did not take the inconsistency and failure to properly explain his views any further.[57] Finally Professor Brazenor’s views are at odds with the clear weight of radiological and medical evidence in this case and I do not find them persuasive.

[57]DCB100-103

54      Dr D Barton, occupational physician, reported in November 2018 for the defendant. This is an extremely brief and in some ways unsatisfactory report that barely covers three pages of text. It is virtually impossible from the report to decide whether or not this doctor has looked at all the radiology.[58] Of course, as with a number of other doctors, he could not have seen the last weight bearing MRI scan of the lumbar spine because it was only obtained on 17 January 2019. This tends to weaken the impact of his opinion as he did not have that additional material and that also applies to other experts who reported prior to that scan.

[58]DCB89-90

55      Nevertheless Dr Barton thought that there was a significant nonphysical basis in relation to the worker’s complaints although he did consider that there were some “minor changes” shown in the spine. As I have said it is not clear whether he has looked at all the radiology or has not. I do not accept his opinion that there is a nonphysical basis for the back pain here as there is a considerable body of evidence that points to an organic condition that still remains and is likely to be there for the foreseeable future. I prefer that body of evidence to Dr Barton’s less than satisfactory report.

56      Recovre provided a vocational assessment for the defendant and it suggested some six jobs as being suitable for Mr Alimi.[59] While the familiar  exercise of going through “suitable employment” jobs in light of the definition under the Act is not strictly speaking required, it is nevertheless relevant evidence in relation to gauging loss of earning capacity even on a common-law basis. Put shortly, Recovre have not properly taken into account this man’s considerable lack of education, lack of skills, lack of ability to intelligently comprehend and learn from what I heard from him and saw over three days in court. Even an analysis of the suggested jobs show that they carry  daily, repetitive duties and postures that on any view  are problematic for this man. 

[59]DCB179

57      The plaintiff expressed a willingness to work and that is consistent with the passage of his life to even get to this country as a refugee and get into employment here. He even expressed some optimism about some of these job suggestions but optimism does not translate into realistic capacity. Motivation to work does not equal the ability to daily perform the duties required on a consistent and reliable basis. Looking at all of the evidence I am not satisfied that any of these so-called suggested alternative jobs are within his capacity when the reality of the employment market in this community is considered.

58      I say for completeness I reject the argument because there is mention by some doctors of some mental or psychiatric response, the admitted organic back injury is not the cause of his current pain and impairment. It is understandable that this refugee to this country has become somewhat depressed about his predicament after suffering this serious spinal injury at such a young age. Such a reaction is a far cry from saying he is not still suffering from that radiologically demonstrable disc injury in  his low back. I also reject the suggestion he has exaggerated his organic back injury and the further submission that he has any capacity for employment when looked at realistically.

59      For the reasons mentioned I am satisfied he has permanently suffered more than 40% of his earning capacity  and it follows that in accordance with practice, I also give leave with respect to pain and suffering damages.