Amini v Agosto Pty Ltd
[2020] VCC 645
•22 May 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-17-03451
| AMIR (MOHAMED) AMINI | Plaintiff |
| v | |
| AGOSTO PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGDE CARMODY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28, 29 and 30 April 2020 | |
DATE OF JUDGMENT: | 22 May 2020 | |
CASE MAY BE CITED AS: | Amini v Agosto Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 645 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – physical injury to the lower back – disentanglement of consequences of pain and suffering and psychological sequelae – whether the pain and suffering consequences and economic loss consequences are “serious” under the Act – psychiatric and psychological injury – whether the consequences are “severe” as required by the Act – whether the psychological consequences are permanent
Legislation Cited: Accident Compensation Act 1985, s135AB
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Harris v DJD Earthmoving Pty Ltd [2016] VSCA 188; Doolan v Rayners Sawmills Pty Ltd [2008] VSCA 219; Weldemichael v ID Sales & Repairs Pty Ltd [2019] VSCA 68; De Bono vVictorian WorkCover Authority [2019] VSCA 85; Richter v Driscoll [2016] VSCA 142; Yirga-Denbu v Victorian WorkCover Authority [2018] VSCA 35; Jones v Dunkel (1959) 101 CLR 298
Judgment: Leave granted to the plaintiff to bring common law proceedings to recover damages for pain and suffering arising from an injury to his lower back. The application for leave to bring common law proceedings in respect of loss of earning capacity both in respect to the physical injury and the psychological injury is dismissed. The application for serious injury in respect of the psychological or psychiatric claim is dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P F O’Dwyer SC with Mr M J Garnham | Shine Lawyers |
| For the Defendant | Mr B R McKenzie | Hall & Wilcox |
HIS HONOUR:
1 This is an application brought by Originating Motion dated 7 August 2017, whereby the plaintiff applies for leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) to bring proceedings to recover damages for injury suffered by him arising from employment with the defendant. The plaintiff alleges that he was injured in the course of his employment, but more particularly on 25 February 2014.
2 The plaintiff seeks leave to bring proceedings for pain and suffering damages and loss of earning capacity damages. The plaintiff seeks leave pursuant to the definition of “serious injury” under two heads:
(a)serious long-term impairment or loss of a body function; in this case, the plaintiff’s lower back; and
(c)severe long-term mental or severe long-term behavioural disturbance or disorder.
3 The plaintiff seeks certification for serious injury in respect of both the physical and the psychiatric basis for pain and suffering and loss of earning capacity.
4 The following evidence was adduced in the course of the hearing:
·The plaintiff gave evidence and was cross-examined.
·The plaintiff tendered the following exhibits:
§Exhibit “A” – the Plaintiff’s Court Book (“PCB”), pages 5 to 35; 41 to 43; 48 to 50; 59 to 71; 85 to 93; 107 to 121; 151 to 177 and 197 to 275
§Exhibit “B” – a report of Professor Saji Damodaran, dated 6 July 2018
§Exhibit “C” – a Flexi Personnel report, dated 27 April 2020
§Exhibit “D” – the plaintiff’s economic loss figures calculations
§Exhibit “E” – the 8-Week Job Seeking Plan prepared by IPAR NES, dated 29 December 2015.
·The defendant tendered the following exhibits:
§Exhibit 1 – the Defendant’s Court Book (“DCB”), pages 96 to 99
§Exhibit 2 – the defendant’s statement of calculations of loss of earnings
§Exhibit 3 – DCB, pages 16 to191
§Exhibit 4 – PCB, pages 56a and 56b and 87a
§Exhibit 5 – Facebook entries (x 2).
5 At the commencement of the proceeding, Mr McKenzie, on behalf of the defendant, identified the following issues as relevant in this application:
(a)in respect of the subparagraph (a) application, the plaintiff was required to disentangle the physical consequences from the mental and psychiatric consequences;
(b)the plaintiff does not satisfy the statutory level of paragraph (a) for physical consequences;
(c)the plaintiff’s psychiatric or psychological condition is not permanent;
(d)the plaintiff’s psychiatric or psychological condition does not meet the “severe” test required under the legislation; and
(e)in respect of both the subparagraph (a) and subparagraph (c) claim for loss of earning capacity, the plaintiff has not exhausted his rehabilitation and training, nor has he proven that he has a greater than 40 per cent loss of earning capacity.
The statutory scheme
6 The application is brought under the definition of “serious injury” contained in ss(37)(a) of s134AB of the Act, which requires the plaintiff to prove that he has suffered a “permanent serious impairment or loss of a body function”.
7 The relevant considerations which apply to such an application are as follows:
(a) the plaintiff must prove that he has suffered a compensable injury; that is, an injury which he suffered arising out of or in the course of his employment on or after 20 October 1999;[1]
[1]Section134AB(1) of the Act, and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraph [11]
(b) the injury and the impairment must be permanent; that is, permanent in the sense that it is “likely to last for the foreseeable future”;[2]
[2]Barwon Spinners (ibid) at paragraph [33]
(c) the plaintiff bears the burden of proof to be determined upon the balance of probabilities;
(d) subsection (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may be fairly described as being more than “significant” or “marked”, and as being “at least very considerable”;
(e) subsection (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise;
(f) a mental or behavioural disturbance or disorder shall not be held to be severe for the purposes of this application unless the pain and suffering consequence or the loss of earning capacity consequence is, when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders, as the case may be, fairly described as being more than serious to the extent of being severe;
(g) subsection (38)(e) provides that in a claim for loss of earning capacity, that such loss must be to the extent of 40 per cent or more, both at the date of hearing and permanently;
(h) in conformity with Barwon Spinners,[3] I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent; that is, likely to last for the foreseeable future, and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in ss38)(c). I have applied the principles set forth therein in reaching my conclusions in this application.
[3]ibid
8 I am required to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and in doing so, to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
The Plaintiff’s background
9 The plaintiff was born in Afghanistan in 1982. He is now thirty-eight years of age. The plaintiff migrated from Afghanistan and arrived in Australia as a refugee in September 2009.[4] The plaintiff is a married man. His wife resides in Afghanistan. They have two children. His first child was born in 2009 and his second child was born in 2011.[5]
[4]PCB 6
[5]PCB 6
10 The plaintiff had basic education in Afghanistan, described as five years of education. His native language is Dari. In the course of this hearing, the plaintiff required the assistance of an interpreter.
11 After the plaintiff had completed his education, he worked initially on the family farm and then subsequently at a bakery. He later worked as a taxi driver while still living in Afghanistan.
12 The plaintiff escaped from Afghanistan and made his way to Australia as a refugee in 2009. His initial employment in Australia was in an abattoir. That was a short period of employment.[6] In the period between his abattoir work and 2013, the plaintiff worked as a renderer.[7] In September 2013, the plaintiff commenced his employment with the defendant as a renderer.[8]
[6]PCB 7
[7]PCB 7
[8]PCB 7
13 The plaintiff ceased work on 25 February 2014, which is the day of his injury, and he has not worked in Australia since then.
Injury with the Defendant
14 The plaintiff worked as a renderer. He described his duties for the defendant in the following terms:
“My employment duties involved every aspect of rendering, including attending sites, taping windows, covering floors, carrying bags of render weighing 20kg, mixing products in buckets, carrying buckets weighing approximately 25kg to 28kg up ladders, along scaffolding and up and down stairs.”[9]
[9]PCB 7 at paragraph [8]
15 The plaintiff described how he had been working for the defendant at a worksite in Carlton. He described his work as being heavy in the days leading up to 25 February 2014, when he was finally unable to work any further. He described his injury in the following terms:
“In the few days prior to the 25 February 2014, whilst at a worksite in Carlton I started to experience pain in my back after spending a long period mixing materials and carrying the mixing materials up three flights of stairs to the third floor. Then on or about 25 February 2014 I experienced the sharp onset of severe pain when I was mixing the materials and lifting the mixer out of a bucket which weighed approximately 28kg.”[10]
[10]PCB 7 at paragraph [10]
Medical treatment
16 The plaintiff attended his general practitioner, Dr Fariba Zamani-Fakhar. Dr Zamani-Fakhar originally prescribed the plaintiff Panadeine Forte for pain relief.[11]
[11]PCB 8
17 On 4 March 2014, the plaintiff underwent an x-ray of his lumbar spine. The report in respect of the x-ray noted as follows:
“A mild scoliosis concave to the right at L2.
The vertebral body heights are preserved.
Narrowed L5/S1 disc space.
… .”[12]
[12]PCB 30
18 The plaintiff continued to attend upon his general practitioner, Dr Zamani-Fakhar.
19 On 16 May 2014, the plaintiff underwent a CT scan of his lumbar spine. The conclusion of that examination was as follows:
“Small central posterior disc bulge at L5/S1 contacts the thecal sac.
At all other levels the spinal canal is capacious.
Minor facet joint degenerative change at L5/S1.”[13]
[13]PCB 31
20 In March 2015, the plaintiff was referred to Mr Armin Drnda, neurosurgeon, for examination and assessment.
21 The plaintiff continued to be treated by his general practitioner and was sent for a further CT scan on 7 March 2016. The report of that CT scan was as follows:
“Midline disc protrusion at L5-S1 which may just impinge on the budding nerve roots but does not produce central canal stenosis. Desiccated L5-S1 disc.”[14]
[14]PCB 32
22 The plaintiff was sent back to see Mr Drnda for further examination. Mr Drnda ordered an MRI scan of the plaintiff’s back on 28 September 2017. The MRI scan was performed on the plaintiff’s back and the following conclusions were found:
“Mild posterior disc bulges at L4/5 and L5/S1 with posterior annular fissures at both these levels.
There is mild subarticular recess narrowing of the L5 foramina bilaterally without neural impingement.”[15]
[15]PCB 34
23 The plaintiff’s last visit to Mr Drnda was in November 2017.[16]
[16]PCB 42
24 In 2018, the plaintiff was referred to Dr Chris Woodgate, consultant physician in rehabilitation and pain medicine, and Dr Angela Chia, pain specialist, for pain management. He continues to be treated by Dr Woodgate.
25 In September 2018, the plaintiff commenced being treated by Dr Margaret Sherburn, a physiotherapist. Dr Sherburn continues to assist with the plaintiff’s treatment by way of physiotherapy.
26 In February 2018, the plaintiff commenced seeing Dr Arthur Stabolidis, psychologist. Dr Stabolidis is a specialist in pain psychology.
27 In June 2019, the plaintiff was referred to Dr Fariba Kavianpour, clinical psychologist, for psychological treatment.[17]
[17]PCB 117
28 In July 2019, the plaintiff was first referred to Dr Rajiv Siotia, a psychiatrist.[18]
[18]PCB 111
29 In relation to the physical treatments for the plaintiff’s lower back, the plaintiff has had two procedures:
· On 3 May 2019, the plaintiff had an epidural injection for nerve root treatment.[19]
· On 21 October 2019, the plaintiff had a ketamine infusion to his lower back.
[19]PCB 27
30 He received limited short-term relief from both these procedures.[20]
[20]PCB 27
31 The plaintiff continues to be treated by his general practitioner, Dr Zamani-Fakhar, Dr Woodgate, his psychiatrist, Dr Siotia, and psychologist, Dr Kavianpour.
32 Shortly after the plaintiff’s injury in February 2014, he travelled to Pakistan on 20 May 2014 and remained there until 19 November 2014. His wife and two children were both in Pakistan at that time. Between 21 August 2016 and 17 November 2016, the plaintiff returned again to Pakistan to visit his family. The plaintiff’s most recent trip to Pakistan was from 23 December 2019 until 5 February 2020, a period of some six weeks.
33 The plaintiff is seeking a certificate for both physical and psychiatric injury arising from his employment with the defendant. The two areas require separate considerations to make a proper determination in those applications.
Severe long-term mental or severe long-term behavioural disturbance or disorder
34 The medical opinions in respect of the plaintiff’s mental or behavioural disturbance or disorder are as follows:
Dr Fariba Zamani-Fakhar, general practitioner
35 Dr Zamani-Fakhar is the plaintiff’s general practitioner. In her report dated 12 November 2019, she stated:
“His mood also has been affected by chronic pain and he has been diagnosed with Depression.
He initially was treated with Zoloft but currently he is on Efexor-xr.”[21]
[21]PCB 60
36 At the time of that report, Dr Zamani-Fakhar was of the opinion that the plaintiff was incapacitated for any suitable employment; however, in her later reports dated 2 April 2020 and 23 April 2020, she changed her opinion to state that the plaintiff was able to perform a number of designated light-duty tasks.
Dr Arthur Stabolidis, pain psychologist
37 Dr Stabolidis first assessed the plaintiff on 3 February 2018.[22] He noted in his report dated 22 October 2018, that he initially worked with the plaintiff by using a telephone interpreter; however, he found that was not required after the first few sessions.[23]
[22]PCB 107
[23]PCB 106
38 In his final report dated 24 March 2020, Dr Stabolidis diagnosed the plaintiff as suffering from a Major Depressive Disorder and Generalised Anxiety Disorder.[24] Dr Stabolidis, in his report, stated:
“His current psychiatric condition appears to be a direct result of his injury, i.e., the pain he is experiencing and his inability to work are the major contributors to his current psychological state.”[25]
[24]PCB 109-110
[25]PCB 110
39 Dr Stabolidis went on to state that, in his view, the psychiatric condition of the plaintiff had stabilised, but he was hopeful that there would be some recovery and improvement as a direct result of his physical state. Dr Stabolidis referred to the plaintiff having a fear of pain and that the fear of movement limits his ability to sit or stand.
40 The overall reading of Dr Stabolidis’ reports indicates that in his opinion, the plaintiff’s condition, while described as stable, had the prospect of improving from the present state. In that case, it is hard to accept that the plaintiff’s psychological or psychiatric state has stabilised.
Dr Rajiv Siotia, consultant psychiatrist
41 Dr Siotia first saw the plaintiff on 30 July 2019.[26] Dr Siotia noted that between 23 August 2019 and 4 September 2019, the plaintiff’s condition improved after the medication had been changed to mirtazapine.
[26]PCB 111
42 Dr Siotia’s diagnosis is that the plaintiff suffers from an Adjustment Disorder with Anxiety and Depressed Mood.[27] Dr Siotia went on to state:
“… However, there has been some improvement in his mental health with the increasing of medications, and he now is able to socialise. There are no doubts that his condition has impacted his activities of daily living and his domestic leisure and social activities adversely. It remains to be seen what improvements might be gained in these areas.
… His current mental illness is on a background of chronic pain which he sustained following an injury during work. If his back injury is deemed to be work-related … .”[28]
[27]PCB 113
[28]PCB 114
43 I note during the course of his evidence, the plaintiff stated that he suffered from panic attacks. There is no mention of the plaintiff’s complaints of panic attacks to his treating psychiatrist, Dr Siotia, in his reports. A fair reading of Dr Siotia’s report is that the plaintiff’s condition has not stabilised and that there is the prospect of improvement in his psychiatric condition. Dr Siotia is not treating the plaintiff as suffering from a Chronic Pain Syndrome, but rather Depression and Anxiety arising from the physical pain that the plaintiff is reporting to him.
Dr Fariba Kavianpour, clinical psychologist
44 Dr Kavianpour is the plaintiff’s treating psychologist. She prepared a report dated 25 November 2019. Dr Kavianpour’s current diagnosis for the plaintiff is an Adjustment Disorder with Depressive and Anxiety symptoms. Dr Kavianpour notes that the plaintiff is currently medicated on Effexor, 225 milligrams, and mirtazapine, 45 milligrams, for the management of his depression, anxiety and sleep difficulties. The plaintiff is prescribed other medications for his pain management.
45 Dr Kavianpour gives the following opinion in respect of the stabilisation of the plaintiff’s condition:
“From psychological point of view, Mr Amini’s mental health condition has been stabilised . His depressive and anxiety symptoms may fluctuate from time to time depending on the level of psychosocial stressors but his mental state is unlikely to substantially change.”[29]
[29]PCB 118-119
46 Dr Kavianpour went on to opine:
“… Given the nature of his physical injuries and pain, and in line with reduced physical capacity, it is expected that his psychological capacity for work-related activities, domestic duties as well as social, and leisure activities would be reduced over the course of his lifetime. This has been evident by his reduced capacity to cope with such duties and activities since his injuries … .”[30]
[30]DCB 120
Dr David Weissman, psychiatrist
47 Dr Weissman examined the plaintiff for medico-legal purposes, and prepared a report dated 13 August 2018. Dr Weissman’s opinion was that the plaintiff was suffering from a Chronic Adjustment Disorder with Depressed and Anxious Mood of moderate intensity or severity, associated with some symptoms and special features of a Somatic Symptom Disorder, with predominant pain persisting, relevant to his employment. In Dr Weissman’s opinion, the plaintiff’s psychiatric symptoms, condition and impairment had stabilised at that stage.[31] I note that the plaintiff has been treated by Dr Siotia, psychiatrist, since that time and his condition has improved, according to his treating psychiatrist.
[31]PCB 228
Dr Gregor Schutz, psychiatrist
48 The plaintiff was examined by Dr Schutz for medico-legal reporting. He prepared a report dated 12 February 2020. Dr Schutz took a history from the plaintiff that he believed his mental health problems had commenced in 2017, but he was unsure why it occurred at that time. The plaintiff described a process whereby his pain had been increasing at that time.[32] Dr Schutz took a history from the plaintiff, setting out that the plaintiff had not suffered any recent panic attacks.[33] Dr Schutz gave his diagnosis as follows:
“… chronic adjustment disorder with anxious and depressed mood … .”[34]
[32]PCB 233
[33]PCB 233
[34]PCB 237
49 Dr Schutz noted an additional diagnosis of Somatic Symptom Disorder or psychological factors affecting the general medical condition. The plaintiff has been noted to have significant levels of pain-related fear.[35]
[35]PCB 237
50 In Dr Schutz’s opinion, the plaintiff’s condition was not stable. He noted that there had been recent changes to the plaintiff’s medication, and his psychiatrist reported improvement in September 2019.
51 Dr Schutz noted the plaintiff’s prognosis in the following terms:
“In terms of Mr Amini’s prognosis, he has some positive prognostic factors including a reportedly supportive wife and an absence of personality pathology or substance abuse. I would note that there has been some recent improvement, which is somewhat encouraging. However, I would state that as long as he experiences pain and an inability to engage in meaningful pre-injury activities, he is likely to have significant symptoms with some impact on functioning and quality of life.”[36]
[36]PCB 239
52 Dr Schutz’s opinion does not support a diagnosis of Chronic Pain Syndrome as part of the plaintiff’s condition. A proper assessment of Dr Schutz’s opinion is that, firstly, the plaintiff’s condition has not stabilised and, secondly, that it is an Adjustment Disorder with Depression and Anxiety arising from the plaintiff’s physical experience of pain.
Associate Professor Shashjit Varma, consultant psychiatrist
53 Associate Professor Varma examined the plaintiff on behalf of the defendant and prepared a report dated 2 July 2018. Professor Varma noted that when the plaintiff’s pain was “not that bad he feels a bit better but always worried about his future”.[37] He diagnosed the plaintiff as suffering a Mild Adjustment Disorder secondary to chronic lower back pain.[38]
[37]DCB 41
[38]DCB 41
54 Associate Professor Varma later examined the plaintiff on 1 March 2019. Associate Professor Varma’s opinion was that the plaintiff continued to suffer from a Mild Adjustment Disorder secondary to chronic lower back pain.[39] He was of the view that from a psychiatric point of view only, the plaintiff was capable of performing work subject to his pain limits. In his report dated 21 November 2019, his opinion continued to be that the plaintiff suffered from a Mild Adjustment Disorder with Mild Anxiety secondary to chronic lower back pain.
[39]DCB 97
55 The opinion of Associate Professor Varma, and his diagnosis, does not raise to the level of the “severe” test required under the legislation for the granting of a serious injury certificate to the plaintiff in this case.
Professor Saji Damodaran
56 Professor Damodaran examined the plaintiff on 28 June 2018 on behalf of the defendant. He prepared a report dated 6 July 2018. He also prepared a report dated 7 November 2018, based on the same examination dated 28 June 2018. Professor Damodaran’s opinion was that the plaintiff’s psychological state was complicated by psychosocial factors, in particular, the plaintiff’s inability to bring his wife and family from Pakistan/Afghanistan to Australia. Professor Damodaran’s opinion is that the plaintiff is capable, from a psychiatric point of view, of participating in the alternative employment options which are within the plaintiff’s physical limitations. A plain reading of Professor Damodaran’s reports is that the plaintiff’s inability to work is related to his physical pain. I note that in respect of Professor Damodaran’s report, that the plaintiff has subsequently been treated by a psychiatrist, and his general psychiatric condition has improved.
57 The plaintiff, in his most recent affidavit dated 28 April 2020, stated that he suffered from anxiety, and a few times a week he had panic attacks.[40] This statement is at odds with the histories taken by Associate Professor Varma, Dr Siotia and Dr Schutz, none of whom have a history of panic attacks from the plaintiff. The plaintiff had disclosed to his pain psychologist, Mr Stabolidis, that he had had panic attacks.
[40]PCB 29B
58 I find the lack of complaint to psychiatrists about the alleged panic attacks is an indicator that the plaintiff is exaggerating his psychiatric or psychological symptoms. On the other hand, the plaintiff accepts that he is improving in that part of his life.[41]
[41]Transcript (“T”) 36
59 The further issue in respect of the claim for psychiatric certification for serious injury is that the preponderance of the medical evidence is that the plaintiff’s condition is improving, albeit slowly. On the basis of that evidence, and I accept it, the plaintiff does not have a permanent psychiatric condition that can be assessed as being “severe”. The medical evidence in this case does not describe or diagnose his condition as being “severe” as required under the Act.
60 I conclude that the plaintiff’s claim for serious injury in respect of psychiatric or psychological condition for pain and suffering damages is dismissed.
Physical injury – lower lumber spine
61 I have previously set out the physical treatment that the plaintiff has undergone as a result of the injury to his back which occurred on or about 25 February 2014. The plaintiff has undergone a number of radiological examinations and two separate procedures to alleviate the pain in his lumbar spine. The last of those procedures occurred in October 2019. The plaintiff obtained some relief for a period of two weeks from the ketamine infusion, but after that time the benefit ceased.[42]
[42]PCB 89
Medical opinions
The Plaintiff’s doctors
Dr Fariba Zamani-Fakhar
62 Dr Zamani-Fakhar has been treating the plaintiff since the time of his injury. Her treatment has predominantly been the prescription of pain-relief medications, as set out in her report of 2 April 2020. Dr Zamani-Fakhar has referred the plaintiff to Mr Drnda, neurosurgeon, and Dr Woodgate, pain physician. Dr Zamani-Fakhar has been treating the plaintiff for lumbar back pain, together with radiation of pain into his left leg, with some left foot numbness.[43] Dr Zamani-Fakhar was prescribing the plaintiff with Lyrica, 300 milligrams twice daily; Celebrex, 200 milligrams twice daily, and Panadeine Forte, two tablets a day if needed. The plaintiff had also been prescribed Tramadol, 50 milligrams twice daily.
[43]PCB 66
63 In her most recent reports, Dr Zamani-Fakhar did not diagnose the plaintiff’s condition to his lower back.
Mr Armin Drnda, neurosurgeon
64 Mr Drnda’s first report is dated 12 October 2017. In that report, he notes that an examination of an MRI scan to the lumbar spine revealed that at the L5-S1 level, there was a central disc protrusion with annular tear. He went on to state that there was a degree of foraminal stenosis, but no compression on exiting nerve roots. Mr Drnda found that the plaintiff suffered from signs of S1 radiculopathy only through distribution of pain and this is probably caused by continuous inflammatory process rather than mechanical compression.[44]
[44]PCB 38
65 In his later report dated 7 February 2019, Mr Drnda stated as follows:
“The prolonged physical activity at work caused strain on his lower back and accelerated degenerative changes in his lumbar spine. The injury likely caused the annular tear in the disc L5S1. This did not cause mechanical compression on the nerve roots but contributed to the development of the low back pain and gradually caused likely radiculitis (nerve root inflammation caused by leakage of inflammatory substances from the degenerated disc) that could explain his left leg pain.”[45]
[45]PCB 42
66 In Mr Drnda’s opinion, there was a radiologically-demonstrated explanation for the plaintiff’s complaint of lower back pain and left leg symptoms.
Dr Chris Woodgate, consultant physician in rehabilitation and pain medicine
67 Dr Woodgate prepared a report dated 11 March 2020 and reported:
“On examination there were no focal neurological deficits straight leg raise and FABER test gave pain through to the back. My impression at that stage was chronic mechanical back pain with peripheral and central causes … .”[46]
[46]PCB 88
68 Dr Woodgate has managed the treatment for pain of the plaintiff through until the present time. The latest invasive treatment was the ketamine infusion, which occurred on 8 October 2019. Dr Woodgate’s opinion is that the pain symptoms are physically caused.
Dr Joseph Slesenger, specialist occupational physician
69 Dr Slesenger examined the plaintiff for medico-legal purposes. Dr Slesenger is an occupational physician. His diagnosis of the plaintiff’s condition was:
·mechanical injury to the lumbar spine
·aggravation of degenerative disease to the lumbar spine
·Chronic Pain Disorder.[47]
[47]PCB 173
70 At the time of his report dated 21 April 2020, Dr Slesenger noted that the plaintiff was receiving the following medications:
·Lyrica, 300 milligrams twice daily
·Celebrex, 200 milligrams once daily
·Panadol Osteo 600, milligrams twice daily
·medication for hypertension
·medication for reflux
·medication to assist his sleep.[48]
[48]PCB 173-174
71 At the time of his last examination, Dr Slesenger did not note evidence of radiculopathy.[49] Dr Slesenger’s opinion is that the basis for the pain is two-fold; one, a Chronic Pain Disorder and two, the mechanical nature of the movement of the back causes pain to the plaintiff.
[49]PCB 174
Mr Thomas Kossmann, orthopaedic surgeon
72 Mr Kossmann examined the plaintiff for medico-legal purposes. In his last report dated 25 February 2020, Mr Kossmann set out his diagnosis as follows:
“Lumbar spondylosis in the form of mild posterior disc bulges at the L4/5 and L5/S1 levels with posterior annular fissures at these levels, mild subarticular narrowing of the L5 foramina with contact to the nerve roots and mild facet joint degeneration at the L5/S1 level.”[50]
[50]PCB 214
73 Mr Kossmann noted that the plaintiff’s symptoms of ongoing pain in the lumbar spine radiating to the left leg worsen with movement and is aggravated by forward flexion.[51]
[51]PCB 214
74 Mr Kossmann’s opinion is that the plaintiff’s pain symptoms are physically caused.
The Defendant’s medical opinions
Mr Ian Jones, orthopaedic surgeon
75 In Mr Jones’ report dated 22 November 2017, he stated that the plaintiff suffered from mild degenerative disease, affecting both his L4-5 and L5-S1 discs in the lumbar spine. It was Mr Jones’ opinion that the effects of the injury said to have occurred on 25 February 2014 had resolved. He noted that the differences between the x-ray initially undertaken, and later CT scans, indicated that further degeneration occurred at the L4-5 level and had developed in the absence of any further injury to the plaintiff’s back.[52]
[52]DCB 21
76 This description of the plaintiff’s diagnosis is different from all the other medical practitioners, in the sense it was stated that the effect of the original injury has fallen into the background and is no longer relevant to the symptoms suffered by the plaintiff. I do not accept that this is an appropriate medical opinion to rely upon at this stage and note that the opinion was given some three years ago.
Mr Rodney Simm, orthopaedic surgeon
77 Mr Rodney Simm, orthopaedic surgeon, examined the plaintiff for medico-legal purposes. He prepared a number of reports. The latest of those reports is dated 10 December 2019. In that report, he set out the plaintiff’s diagnosis as follows:
“The current diagnosis is a chronic spinal pain syndrome, triggered by a painful back injury in the workplace. I am not able to establish the diagnosis of the physical cause for his ongoing symptoms. As I stated in my last report, the generation, perpetuation and amplification of his pain would now seem to relate to factors that are independent of the degenerative disc pathology and relate to some form of pain sensitisation process in the setting of a compensable back injury.”[53]
[53]DCB 127
78 Mr Simm went on to state that in his opinion, while the current circumstances prevailed (I took that to mean that while there was a compensation proceeding in process), the plaintiff will remain entrenched in the invalid role.[54]
[54]DCB 127
79 It is clear from Mr Simm’s diagnosis that he is of the view that the plaintiff is complaining of pain based on some sensitisation process which could be referred to as a chronic pain syndrome. Mr Simm does not say that the plaintiff suffers from a chronic pain syndrome and has expressed the view that the plaintiff is exaggerating or exhibiting a strong belief in his ongoing injury.
Dr Michael Bloom, occupational and environmental physician
80 Dr Bloom examined the plaintiff for medico-legal purposes, and the last of his reports was dated 2 December 2019. Dr Bloom noted in his report as follows:
“There is no clinical or radiological evidence of permanent or serious spinal injury, and the relatively mild degenerative changes in his low back reported in the scans are likely of dubious significance. In other words, those changes do not necessarily contribute to significant physical pain, and certainly are not normally associated with significant workplace disability.
Thus the current diagnosis is of chronic pain syndrome secondary to soft tissue low back strain injury sustained almost 6 years ago, with pain and disability amplification secondary to adverse psychosocial factors, and particularly to loss of job opportunity.”[55]
[55]DCB 115
81 Dr Bloom was attacked by Mr O’Dwyer of counsel in his submissions and described the reporting by him as “dodgy”. I do not accept that Dr Bloom’s reporting and analysis of the plaintiff’s condition is “dodgy” as described by Mr O’Dwyer. The preponderance of other medical opinions is that there is a physical component for pain complaints made by the plaintiff and have explanation as a result of the radiological findings.
82 In conclusion, based on a fair reading of all of the medical opinions concerning the plaintiff’s lumbar spine injury and his complaints of pain, I accept that his symptoms of pain are caused by a physical disruption to the structures in his lower back. The plaintiff has set out a number of consequences as a result of that pain to his lower back.
The consequences of lower back injury to the Plaintiff
83 The plaintiff relied on five separate affidavits, dated 24 February 2017, 8 November 2018, 27 March 2019, 31 March 2020 and finally, 28 April 2020. In those affidavits, the plaintiff deposed as to the consequences of the lower back injury and his symptoms.
Pain
84 The plaintiff’s main complaint was one of pain in his back on movement. I accept that the plaintiff does suffer from pain symptoms in his lower back as a result of moving about. That pain has been observed by a number of his treating practitioners and, indeed, the medical examiners. I accept the pain is a considerable consequence for the plaintiff.
Sleep
85 The plaintiff, in his affidavit material, complains that his sleep is disrupted by pain. He describes the pain causing him restless nights and that he tosses and turns in order to get into a comfortable position.[56] The plaintiff is currently medicated 15 milligrams of Axit each night to assist with his sleep. The plaintiff’s complaint of pain interfering with his sleep is confirmed in his consistent history to the medical practitioners in this regard.
[56]PCB 11 at paragraph [36]
86 I find that the interruption to the plaintiff’s sleep due to the pain in his back is a considerable consequence for him.
Medication
87 I have previously referred to the medications that the plaintiff is taking in these reasons. They are set out in the report of Dr Slesenger. The medications the plaintiff currently takes are Lyrica, 300 milligrams daily; Celebrex, 200 milligrams daily and Panadol Osteo, 600 milligrams daily. He also has previously noted he takes medication for sleep. In the past, the plaintiff has been prescribed other medications, such as Lyrica and Tramadol. He has even been offered opioid medication to deal with his pain levels.
88 I find that the necessity for the plaintiff to take this level of medication in order to ameliorate his pain symptoms is a “very considerable” consequence for him.
Ongoing treatments
89 The plaintiff has been undergoing ongoing treatment, both by physiotherapists and invasive treatments, such as the injection in May 2019 and the ketamine infusion in October 2019. This ongoing treatment is to ameliorate the effects of his pain. He also attends hydrotherapy in order to address his pain symptoms and general mobility in his lower back. I accept the necessity for the plaintiff to undergo ongoing treatment for six years after his original injury is a “very considerable” consequence for him.
Activities of daily living
90 The plaintiff gave evidence that his activities of daily living are restricted. He relies upon his housemates to do most of the domestic tasks around the house. He gave evidence that he was able to assist sometimes, but on other days would be required to lie down on the floor to deal with his pain. It is interesting to note, here, that the plaintiff did not rely upon any affidavit material from his housemates to support the proposition that he was impacted to a large degree in his ability to be involved in domestic tasks in the house.[57] The defendant criticised the plaintiff for this lack of evidentiary support for his allegations that his activities of daily living were severely impacted due to his pain symptoms.
[57]Jones v Dunkel (1959) 101 CLR 298
91 In the course of the six years since the time of the plaintiff’s injury, he has travelled to Pakistan on three separate occasions. The reason for the visits was to see his wife and children. Clearly, the plaintiff was able to undertake such journeys over a long period of time. Upon his return on the most recent occasion, there was no complaint by the plaintiff about any difficulties in travelling to and from Pakistan. It was clear from the evidence during the course of the hearing that the fact that the plaintiff’s wife and children were in Pakistan and he was unable to get them to legally enter Australia and live with him, is an ongoing and significant concern for him. He has managed to come to Australia as a refugee and obtain residency here.
92 I assess that the plaintiff was not presenting as a stoical plaintiff. He was reasonably straightforward in his answers. It was a justifiable attack on his credit in relation to his most recent complaints of panic attacks.
93 The defendant also challenged the plaintiff’s credibility on the basis of Facebook entries, which became exhibit 5 of the hearing. I do not think the Facebook entries form a basis for a proper attack on the plaintiff’s credit. I do find, however, that the plaintiff has exaggerated his complaints of pain and symptoms arising from the injury to his back in February 2014. Nevertheless, I do not find that he was a dishonest witness.
94 In conclusion, based on all the medical evidence and the plaintiff’s evidence in this case, I find that the consequences of the lower back injury to him, when considered in a range of possible consequences arising from the lower back injury, are more than “significant or marked” and best described as being “at least very considerable”.
95 The plaintiff’s application for certification for serious injury to commence proceedings for damages for pain and suffering as a result of an injury to his lower back at work on 25 February 2014 is granted.
Loss of earning capacity
96 In this application, Mr O’Dwyer submitted that the loss of earning capacity application for certification applied to both the physical injuries to the plaintiff’s lower back and to the psychological and psychiatric injury as a result of his employment with the defendant.
97 In order to establish that the plaintiff be given leave to bring proceedings in respect of loss of earning capacity, he must establish that:
(a)at the date of the hearing, he has a loss of earning capacity of 40 per cent or more pursuant to s134AB(38)(e)(i); and also
(b)after the date of hearing, the relevant loss of earning capacity will continue permanently pursuant to s134AB(38)(e)(ii).
98 The measurement of the loss of earnings is set out in paragraph (f) of ss(38) of the Act, which requires a comparison between:
(i) “without injury” earnings; and
(ii) “after injury” earnings.
99 The former must be calculated by reference to the six-year period specified in s134AB(38)(f). These earnings consist of a gross income expressed at an annual rate that the worker was earning or was capable of earning from personal exertion, or have earned, or without being capable of earning, from personal exertion had the injury not occurred. In this proceeding, the parties agreed that the relevant figure in respect of “without injury” earnings was $1,040 gross per week. The parties agreed that the “without injury” earnings’ 60 per cent figure was $624 gross per week.
100 The plaintiff has not been in paid employment from 2014 to the date of the hearing.
101 The plaintiff bears the onus of proving any inability to be retrained or rehabilitated, or to undertake suitable employment, or any employment, including alternative, or further, or additional employment, and the extent of such disability, for the purposes of proving loss of earning capacity.[58]
[58]Section 134AB(19)(b) of the Act and Doolan v Rayners Sawmills Pty Ltd [2008] VSCA 219
102 The plaintiff is required to have engaged in, or attempted rehabilitation or training pursuant to s134AB(38)(g), in order to establish a loss of earning capacity. The defendant submitted the plaintiff had failed to undertake sufficient retraining in respect of learning English to improve his chances of gaining suitable employment. In this case, the plaintiff had attempted an English course but had ceased doing it due, he said, to his pain and inability to continue the English course. On the basis of the evidence, I do not accept that the plaintiff has made sufficient effort to continue with retraining, in particular, in respect of English courses to advance his position and availability of further employment.
Medical opinions in respect of the Plaintiff’s ability to return to work
The Plaintiff’s medical opinions
Mr Armin Drnda, neurosurgeon
103 Mr Drnda prepared a report dated 7 February 2019. In that report, he expressed an opinion as to the plaintiff’s suitability to return to employment. In Mr Drnda’s opinion, the plaintiff does not have a capacity for his pre-injury duties.[59] Mr Drnda gave his opinion in respect to the physical restrictions on the plaintiff and stated, in respect to suitable employment, as follows:
“Mr Amini has extremely limited capacity for work having regard to his education, skills and work experience. He would require significant vocational training and language skills to be able to search for work that would potentially be suitable for him. He cannot return to any work that would require manual handling, physical strain, awkward posturing, repetitive banding and twisting of his lower back, heavy lifting and carrying.”[60]
[59]PCB 43
[60]PCB 43
104 It is clear from this reporting that Mr Drnda is of the opinion the plaintiff cannot return to his former employment as a renderer. In terms of alternative employment or other suitable employment, Mr Drnda’s opinion is that the plaintiff’s potential is severely limited due to his physical injuries. Nevertheless, Mr Drnda notes that significant vocational and language skills would improve the plaintiff’s potential for suitable alternative employment.
Dr Fariba Zamani-Fakhar, general practitioner
105 Dr Fariba Zamani-Fakhar was the plaintiff’s general practitioner from the time of his injury until the present time. Relevantly, she prepared two reports, dated 2 April 2020 and 23 April 2020, in respect of the plaintiff’s current work capacity. Dr Zamani-Fakhar, in respect of the plaintiff’s physical disabilities, stated the plaintiff should avoid prolonged static posture and limited repetitive bending or twisting movements.[61] Dr Zamani-Fakhar’s opinion was the plaintiff was able to perform the role of a customer service assistant in a meet-and-greet capacity in his own community.[62] Dr Zamani-Fakhar stated that the plaintiff was physically able to perform the tasks of an enquiry clerk, but due to his limited computer and English skills, it was not suitable employment. She also stated he was able to perform work as a packer (light duties) as long as he did not have to stand for long periods of time and was not required to lift objects heavier than 5 kilograms.[63] Dr Zamani-Fakhar stated that the limitations for the plaintiff to undertake suitable employment included the following:
“He should be starting as part time employee with 3-4 hours daily for 3 Days weekly avoiding standing/sitting longer than 1 hour/avoiding Bending frequently and no lifting more than 5 kg allowed. Then Considering he is managing job well increasing his hours gradually to Full time employment.”[64]
[61]PCB 66
[62]PCB 66
[63]PCB 67
[64]PCB 67
106 Dr Zamani-Fakhar was later asked to comment on positions known as the “CoWork jobs”. In her report dated 23 April 2020, Dr Zamani-Fakhar confirmed that her opinion was that the plaintiff was suitable for light duties. It was her opinion that the plaintiff was able to perform the roles of a delivery driver or mobile food van salesman, or a carpark attendant.[65]
[65]PCB 70-71
Dr Chris Woodgate, consultant physician
107 Dr Woodgate prepared a report dated 11 March 2020. In that report, he expressed the opinion that the plaintiff had some capacity for employment. He stated as follows:
“…
4) I do not think that Mr. Amini has the capacity to return to his preinjury duties.
5) I consider that he does have some capacity for pre-injury employment [ the parties agreed that the word “not” should have appeared between “does” and ‘have’ in the previous sentence]. I think that he would potentially be able to work up to 25 hours a week. The job must not involve sitting, standing or walking for periods of over 30 minutes at a time, and exclude lifting of weights of over 5 kg.
… .”[66]
[66]PCB 90
108 Dr Woodgate was the treating pain physician for the plaintiff. His opinion is that the plaintiff has potential to work up to twenty-five hours per week with the restrictions outlined in his report.
Dr Margaret Sherburn, physiotherapist
109 Dr Sherburn prepared a reported dated 20 April 2020. In that report, she set out the plaintiff’s ability to perform work as follows:
“4.I consider that he will not be able to return to his pre-injury work duties due to his original back injury and current chronic pain condition.
5. Yes, Amir has the capacity for suitable employment. He would need a slow graduated return to work program as he has not worked since 2014. I suggest he would need to start at about 15-20 hours per week and increase gradually. He would be limited in the time spent in one position and would need to be able to shift from one position to another, viz. stand to sit at intervals throughout the workday. The timing of these moves would be job dependent, but would need to be regular and frequent. His lifting capacity is reduced, so he should not lift more than 5kg to begin with. He has a gentle character, with little experience in life, so a gentle workplace would suit his quiet nature and low education level.
… .”[67]
[67]PCB 99
110 Dr Sherburn went on to opine that the vocational jobs set out in the Recovre Vocational Assessment Report were suitable for the plaintiff. These employments included work as a packer, machine operator/packer. Dr Sherburn has been a long-term physiotherapist treater for the plaintiff and is in a good position to make a proper assessment of his abilities.
Dr Arthur Stabolidis, psychologist
111 Dr Arthur Stabolidis has been treating the plaintiff for his psychological and psychiatric symptoms since October 2018. In his report dated 24 March 2020, Dr Stabolidis gave his opinion in respect of the plaintiff’s current work capacity as follows:
“Unfortunately I do not think Amir currently has capacity for any type of work given his current psychological state. However, I maintain hope that he can overcome these difficulties despite not yet seeing any evidence to support this hope.
…
Amir needs to overcome his pain related fears. I think continuing with CBT and physiotherapy exercise is important.
I maintain that Amir can recover from his psychological injuries, however, it is difficult for me to provide a time-line for this as his progress has been particularly slow and inconsistent.”[68]
[68]PCB 110
112 The opinion of Dr Stabolidis, the treating psychologist, is that at this stage, the plaintiff’s psychological state has not stabilised and, in his opinion, will improve into the future. Consequently, the psychological symptoms preventing the plaintiff from returning to work are not permanent and hence will not impair the plaintiff from obtaining suitable employment in the future.
Dr Rajiv Siotia, psychiatrist
113 Dr Rajiv Siotia is the plaintiff’s treating psychiatrist. Dr Siotia prepared a report dated 22 October 2019. Dr Siotia’s opinion is that the plaintiff’s mental health condition has improved and will show further improvement, depending on psychosocial stressors.[69] In particular, Dr Siotia stated that the plaintiff’s capacity for employment was as follows:
“From a purely psychiatric point of view, I would think that Mr Amini would gain work capacity once his mental health improves. However, his mental health is closely linked with his back pain, and it would be useful to take an opinion from a pain specialist about his prospects of working with his pain.”[70]
[69]PCB 113-114
[70]PCB 114
114 Dr Siotia noted that the plaintiff’s mental health had improved as a result of a change in medications. Dr Siotia’s opinion was that the plaintiff’s mental health improvement and ability to work on the basis of psychiatric injury would depend on the plaintiff’s ability to work with pain. Dr Siotia noted that the plaintiff had high levels of anxiety.
Dr Fariba Kavianpour, clinical psychologist
115 Dr Kavianpour is a clinical psychologist who has been treating the plaintiff. In a report dated 25 November 2019, Dr Kavianpour stated that the plaintiff suffered from an Adjustment Disorder with Depressive and Anxiety symptoms. In her opinion, the plaintiff’s mental health condition had stabilised. In the course of her report, Dr Kavianpour stated the plaintiff had been unable to travel and visit his family in the past few years, nor to sponsor them to immigrate due to his financial limitations.[71] The plaintiff has been able to travel to Pakistan to see his family on three occasions, one only shortly after this report had been prepared. Dr Kavianpour stated her opinion as follows:
“Mr Amini's prognosis for full recovery is unfavourable. Given the nature of his physical injuries and pain, and in line with reduced physical capacity, it is expected that his psychological capacity for work-related activities, domestic duties as well as social, and leisure activities would be reduced over the course of his lifetime. This has been evident by his reduced capacity to cope with such duties and activities since his injuries … .”[72]
[71]PCB 120
[72]PCB 120
116 The opinion expressed by Dr Kavianpour does not rule out the plaintiff’s capacity to engage in suitable employment in the future or presently. Dr Kavianpour distinguishes between the reduced physical capacity and the psychological symptoms the plaintiff suffers separately, but then congregates them or combines them in an assessment of his work capacity. I do not accept that the plaintiff has a permanent psychological injury that would prevent him from engaging in suitable employment.
Dr Joseph Slesenger, specialist occupational physician
117 Dr Slesenger was engaged by the plaintiff’s solicitors, Shine Lawyers, to give a medico-legal report in respect of the plaintiff’s capacity to engage in suitable employment. The plaintiff relied on two reports, dated 9 December 2019 and 21 April 2020, prepared by Dr Slesenger.
118 In his report dated 21 April 2020, which was based on clinical assessments performed on 28 November 2019, Dr Slesenger gave his opinion about the proposed employments by the defendant. Dr Slesenger stated that the following roles were not advisable for the plaintiff on the basis that they lay outside his physical capacities:
§machine operator/packer, dated 21 February 2018
§packer in Springvale, dated 5 June 2018
§customer service assistant
§meet and greet
§enquiry clerk
§packer (light duties)
§cleaner.
119 I note that for some of these roles, Dr Slesenger set out the reasons for those positions being unsuitable for the plaintiff as, in particular, either twisting or lifting weights greater than 5 kilograms. Particularly, I note that in relation to the enquiry clerk and packer (light duties) roles, Dr Slesenger did not set out any specific reasons why the plaintiff could not physically do those jobs. In respect to the enquiry clerk, he noted that the plaintiff lacked the necessary language and computer skills.
120 Dr Slesenger considered the roles set out in the “CoWork jobs” as has been described. Dr Slesenger’s opinion was that the delivery driver, mobile food van salesperson and carpark attendant jobs were all outside the plaintiff’s capacity because he was of the opinion that the plaintiff was unlikely to be able to return to work on a consistent and reliable basis. Specifically, in respect of the plaintiff’s work capacity, he stated that the security officer role was also outside his work capacity. I am unable to accept that part of Dr Slesenger’s opinion where he says that the plaintiff would be unable to return to work on a consistent and reliable basis when, on the basis of all the evidence in this case, the plaintiff has not attempted to return to any work since the time of his injury. The plaintiff, in his evidence, expressed on a number of occasions the enthusiasm or interest in returning to work, but in fact has never tried to do so.
121 In summary, Dr Slesenger’s opinion is the plaintiff has no capacity for suitable employment.
Mr Thomas Kossmann, orthopaedic surgeon
122 The plaintiff relied on two reports of Mr Kossmann, dated 18 January 2019 and 25 February 2020. In Mr Kossmann’s opinion, the plaintiff’s inability to work is related to his physical injury and symptoms. On the issue of work capacity, Mr Kossmann stated as follows:
“In my opinion Mr Amini has no work capacity for as long as he has pain issues in his lumbar spine. Mr Amini should abstain from physically demanding activities. He is not able to walk long distances, walk on uneven ground, walk up or down stairs, climb stairs and ladders, kneel or squat, or carry heavy items weighing more than 5kg. He has no transferrable skills and no command of English, which are significant obstacles for retraining or rehabilitating Mr Amini further.”[73]
[73]PCB 215
123 Mr Kossmann went on to state the plaintiff has no capacity for his pre-injury duties.
124 Mr Kossmann stated that he did not believe the plaintiff had capacity for suitable employment, and in particular the jobs set out in the IPAR NES Vocational Assessment dated 26 May 2015, the IPAR NES 8-Week Job Seeker Plan dated 11 August 2015 and the Recovre Vocational Assessment Report dated 24 October 2018. Mr Kossmann did not express an opinion in respect of the “CoWork jobs” proposed for the plaintiff as suitable alternative employment. Mr Kossmann’s opinion is clear that the plaintiff has no work capacity due to his physical injuries. On the basis of the plaintiff’s own evidence, I do not accept that he has no physical capacity to engage in suitable employment of a light nature.
Dr David Weissman, psychiatrist
125 Dr Weissman prepared a medico-legal report for the plaintiff’s solicitor’s, Shine Lawyers, dated 13 August 2018. In his report, Dr Weissman stated, in respect of the plaintiff’s work capacity, as follows:
“I cannot necessarily state that he is totally psychiatrically incapacitated for all work. However, there is probably a partial psychiatric incapacity for work based upon his moderate work-related psychiatric symptoms.”[74]
[74]PCB 229
126 Dr Weissman stated the plaintiff’s current psychiatric prognosis is quite uncertain and guarded.[75]
[75]PCB 229
127 The overall import of the reporting by Dr Weissman is that he was aware of the physical incapacity of the plaintiff and deferred to occupational physicians and pain management specialists to determine the plaintiff’s work capacity.
Dr Gregor Schutz, consultant psychiatrist
128 Dr Schutz prepared a report dated 12 February 2020 as a medico-legal report. He noted that the plaintiff’s psychiatric condition commenced in 2017, but was not sure why that was the case. On the question of the plaintiff’s work capacity, Dr Schutz stated as follows:
“… I would state that he does have the psychiatric capacity to work part-time working no more than 20 to 25 hours per week with an opportunity for breaks in his pre-injury role or in any role for which he has suitable training and expertise, or for which such training could be provided.”[76]
[76]PCB 238
129 In Dr Schutz’s view, that partial incapacity was to continue indefinitely. He went on to state that the plaintiff, on balance, maintains a capacity to work part time in the identified fields in the vocational assessment reports. Mr Schutz had been provided with the vocational assessment reports from Recovre and IPAR.
130 In relation to the plaintiff’s psychiatric condition, Mr Schutz stated as follows:
“In terms of Mr Amini’s prognosis, he has some positive prognostic factors including a reportedly supportive wife and an absence of personality pathology or substance abuse. I would note that there has been some recent improvement, which is somewhat encouraging. However, I would state that as long as he experiences pain and an inability to engage in meaningful pre-injury activities, he is likely to have significant symptoms with some impact on functioning and quality of life.[77]
[77]PCB 239
131 This comment about the plaintiff’s prognosis is consistent with the treating psychiatrist’s opinion that the plaintiff has the prospect of an improving psychiatric position. On the basis of that opinion, I am not satisfied that the plaintiff’s psychiatric condition has stabilised and is permanent at some necessarily reduced level of impacting upon his capacity to re-engage in the workforce.
The Defendant’s medical opinions
Mr Ian Jones, orthopaedic surgeon
132 The defendant relied on a medico-legal report dated 22 November 2017 prepared by Mr Ian Jones, orthopaedic surgeon. Mr Jones commented that the plaintiff’s level of pain symptoms are somewhat disproportionate to the existing pathology in his lumbar spine, and noted that the plaintiff’s physical symptoms do have an organic basis, but not to the degree of incapacity reported by the plaintiff. At the time of the assessment in 2017, Mr Jones was of the opinion, in respect of the plaintiff’s return-to-work capacity, as follows:
“… In his current state, without further rehabilitative exercises, I do not believe he is capable of the duties of packer or cleaner, but would be capable of undertaking this work in the future.”[78]
[78]DCB 21
133 Mr Jones then refers to an intensive program of physical therapy to rehabilitate the lower back and abdominal musculature of the plaintiff, and stated as follows:
“… I believe after such a programme he would be able to resume he (sic) duties of packer and cleaner, as suggested in the IPAR report.”[79]
[79]DCB 22
Mr Rodney Simm, orthopaedic surgeon
134 The defendant relied upon reports from Mr Rodney Simm, orthopaedic surgeon, dated 28 August 2018 and 10 December 2019. In his first report, Mr Simm gave his opinion on suitable employment as follows:
“He has the physical capacity to undertake appropriately modified employment. He needs to undertake work of a light non-physical nature, which enables him to sit and stand as required. Suitable occupations suggested are customer service assistant in his own community, enquiry clerk in his own community. He could probably work at a bench or desk doing light packing or assembly work, providing the above constraints were observed. This man has now become entrenched in the invalid role. He has had an extended period of time out of the workforce and his prospects of returning to work, prior to closure of his back injury claim, are remote.”[80]
[80]DCB 28
135 In his more recent report dated 10 December 2019, Mr Simm stated that he was unable to establish a diagnosis of a physical cause for the plaintiff’s ongoing symptoms.[81] Mr Simm expressed his opinion that the plaintiff had the capacity to undertake suitable employment. In particular, he noted the Recovre report dated 24 October 2018 and the work descriptions set out for the packer and machine operator/packer roles. Mr Simm was of the opinion the plaintiff had the physical capacity to undertake both of these job options. He noted, however, that the plaintiff had non-organic and psychological factors which are driving the plaintiff’s ongoing self-belief of an ongoing injury and associated work incapacity. He confirmed his earlier opinion that the plaintiff was entrenched in the invalid role.[82]
[81]DCB 127
[82]DCB 127
Dr Michael Bloom, occupational and environmental physician
136 Dr Bloom was of the opinion that the plaintiff presented and behaved in a manner that was driven by non-organically based factors and most particularly, fear and pain avoidance symptoms.[83] Dr Bloom was of the opinion the plaintiff did not have any contraindications or symptoms to full-time employment. He noted that the plaintiff would have physical restrictions of avoiding prolonged static posture, limited repetitive bending and twisting, and limited handling of manual loads between 10 and 12 kilograms and less. Dr Bloom stated that the roles of customer service assistant (in own community), enquiry clerk (in own community), packer (light duties) and cleaner (domestic or commercial), were all within the capacity of the plaintiff to perform.[84]
[83]DCB 36
[84]DCB 37
137 In a later report dated 2 December 2019, Dr Bloom stated that the plaintiff was able to perform the role of a packer or machine operator/packer. Dr Bloom, in his conclusion, noted that it is likely that the thirty-seven-year-old worker did sustain a soft-tissue injury to his lower back almost six years ago, from which he has failed to recover because of adverse psychosocial factors. The multiple adverse psychosocial factors are highly complex and continue to represent considerable barriers.[85]
[85]DCB 119
138 In his final report dated 20 April 2020, Dr Bloom considered the prospect of the job options set out in the CoWork Vocational Assessment Report dated 25 March 2020. Dr Bloom assessed that the plaintiff was suitable for the roles of delivery driver, mobile food van salesperson, carpark attendant and security officer (gatehouse, aviation, corporate security).[86] Dr Bloom goes on to state the plaintiff would benefit from being involved in suitable paid employment. He notes, in particular, the plaintiff has physical capacity to undertake each of those four suitable roles referred to in his report.[87]
[86]DCB 121-122
[87]DCB 122
Associate Professor Shashjit Varma, consultant psychiatrist
139 The defendant obtained a medico-legal report from Dr Varma, consultant psychiatrist, dated 2 July 2018. In that report, Dr Varma stated that the plaintiff would be able to stay at work and his capacity would not be reduced if his current psychological sessions were ceased or decreased at that time.
140 Dr Varma prepared a later report dated 7 March 2019. In that report, he expressed the following opinion in respect of the plaintiff’s ability to return to work:
“The worker has not worked for the last four years. From a psychiatric point of view he is capable of performing any job for which he is qualified and trained for but from the pain point of view I will have to leave it to his pain doctors.”[88]
[88]DCB 97
141 Dr Varma states that, from a purely psychiatric point of view, the plaintiff has a capacity to perform the jobs identified in the vocational assessment reports and can do all of those jobs.[89] Dr Varma goes on to state that the treatment of the plaintiff’s pain condition is a matter for the pain doctors, as he refers to them.
[89]DCB 98
142 In his final report dated 21 November 2019, Dr Varma states, in respect of the plaintiff’s ability to return to work, as follows:
“… From a purely psychiatric point of view, the worker has a capacity to perform the jobs identified in the vocational assessment report and all the jobs are suitable, provided he gets clearance from the pain doctors.”[90]
[90]DCB 108
143 Dr Varma goes on to state:
“From a psychiatric point of view, the worker has reached a stable state. The prognosis of the worker in the future will depend on the improvement in the pain.”[91]
[91]DCB 108
144 There is a clear contest between Dr Slesenger, occupational physician, for the plaintiff, and Dr Bloom, occupational and environmental physician, for the defendant. On the one hand, Dr Slesenger accepts all of the plaintiff’s complaints and description of symptoms. Dr Bloom, on the other hand, states that the plaintiff is suffering from adverse psychosocial factors which are the driver of his declared incapacity.
145 I accept, on the basis of all of the evidence, the plaintiff has in fact suffered a physical injury to his lower back. That injury has left him with what is colloquially referred to as a “light work back”. The plaintiff’s psychiatric and psychological condition is improving according to the treating psychiatrist and the latest medico-legal report tendered by the plaintiff. The psychiatric condition for the plaintiff has not stabilised and is not permanent in nature.
Realistic suitable employment
146 In this case, the plaintiff submits there is no real suitable employment open to him as a result of his diagnosed injuries, and consequent disability and physical limitations. This aspect of the plaintiff’s submission applies to both claims under part (a) and part (c) of the definition section of “serious injury” in the Act. Section 5 of the Act provides that “suitable employment” means:
“… employment in work for which the worker is currently suited (whether or not that work is available),—
(a) having regard to—
(i) the nature of the worker's incapacity and the details provided in medical information including, but not limited to, the certificate of capacity supplied by the worker; and
(ii) the nature of the worker's pre-injury employment; and
(iii) the worker’s age, education, skills and work experience; and
(iv) the worker’s place of residence; and
(v) any plan or document prepared as part of the return to work planning process; and
(vi) any occupational rehabilitation services that are being, or have been, provided to or for the worker; and
(b) regardless of whether—
(i) the work or the employment is available; and
(ii) the work or the employment is of a type or nature that is generally available in the employment market.”
147 This definition means that the legislature intended that a worker’s loss of capacity is to be assessed having regard to work that is generally available in the employment market, rather than a position tailored to meet the peculiar needs of an individual worker who is capable of performing his normal work. The definition means that a consideration of “suitable employment” requires that a court takes into account the realities of the labour market.
148 In this case, the plaintiff has not worked in any capacity since the date of his injury in 2014. It is clear on the evidence that the plaintiff cannot return to his former occupation as a renderer because of his injured back. Not one of the medical practitioners who have examined the plaintiff have given an opinion that he could work as a renderer.
149 The definition of “no current work capacity” requires that there is an injury that has caused inability to return to employment, whether that employment be the applicant’s pre-injury employment (not the case here) or “suitable employment”. I am required to examine whether the applicant has an ability to engage in employment.
150 In this case, there have been a plethora of opinions from occupational therapists, employment placement consultants, rehabilitation consultants, vocational consultants, occupational physicians, a social worker, occupational rehabilitation consultant and a vocational assessor. One could be forgiven for thinking that the body of opinions and the formation of reports about them are an industry or occupation based on injured workers and their claims for legal remedy. I am required to analyse these opinions and apply them to the facts in this case and arrive at my own assessment of what capacity for suitable employment the plaintiff has now and into the future. The evidence in respect of the jobs that are suitable employment for the plaintiff come from three sources described as:
(i) Recovre jobs;
(ii) IPAR jobs;
(iii) CoWork jobs.
Recovre Jobs
151 The defendant relied upon a Recovre vocational assessment report dated 24 October 2018 prepared by Robyn Willett, employment placement consultant, and Janette Ash, occupational therapist, to establish suitable employment opportunities for the plaintiff. The report is twenty-two pages in length. In their opinion, the plaintiff did not present as motivated to gain suitable employment.[92] The plaintiff’s transferable skills were listed as follows:
[92]DCB 49
(a)communication skills – rudimentary English;
(b)computer skills – rudimentary computer skills;
(c)personal attributes – ability to learn new skills via demonstration, organisational skills, time management skills, problem solving skills and decision-making skills;
(d)cultural awareness demonstrated;
(e)ability to work in a factory/production environment, process work skills, skills in labouring and rendering.
152 At the time of the Recovre assessment, the plaintiff’s general practitioner, Dr Zamani-Fakhar, had certified him unfit for work or study from 24 April 2018 to 24 July 2018.[93] Recovre identified three jobs that were described as suitable employment for the plaintiff. The jobs were as follows:
[93]DCB 50
(i) Packer
153 The work was located in Springvale, which is proximate to the plaintiff’s residence. The pay rate was $27 an hour for a thirty-eight-hour week. The actual work was three shifts of twelve hours. The shifts were day shift and night shift. The physical requirements for this job are set out in the report.[94] The physical requirements are within the physical ability of the plaintiff, as assessed by his general practitioner.[95]
[94]DCB 58
[95]PCB 67
154 Mr Drnda, the plaintiff’s treating neurosurgeon, does not give an opinion about this specific job in his report dated 7 February 2019. Dr Woodgate, the plaintiff’s pain management doctor, sets out that the plaintiff could work twenty-five hours per week with restrictions set out as not involving sitting, standing or walking for periods of over thirty minutes at a time, and exclude lifting of weights over 5 kilograms.[96] The packer job description complies with these restrictions, as the job allows alternation of sitting and standing.
[96]PCB 90
155 The factor that makes this proposed job potentially beyond the capacity of the plaintiff is the three shifts of twelve-hours’ duration. The plaintiff has not worked in any capacity or routine since 2014. The plaintiff has not tried to work, and failed to be able to continue due to his incapacities. On the basis of all the evidence in this case, I find that the plaintiff is capable of building up to full-time work as a packer, based on the duties outlined for the job and the physical restrictions based on the preponderance of the medical opinions that have been outlined. The gross pay per week for this employment was $1,026 gross per week.[97]
[97]DCB 52
(ii) Machine operator/packer
156 This job was located in Braeside, which is in reasonable proximity to the plaintiff’s residence in North Dandenong. The job requirements set out in the report,[98] in particular require: “Incidental shallow bending … [but] Sustained or deep bending is not required”. I accept that the medical evidence in this case advised the plaintiff to avoid bending which could aggravate the symptoms in his lower back. This job requirement leads to the conclusion that the identified job of a machine operator/packer is not “suitable employment” as defined in the Act.
[98]DCB 66
The IPAR jobs
157 The defendant relied on employment opportunities set out in the IPAR vocational assessment report prepared by Michelle Sipek.[99] This report, which was dated 26 May 2015, was fourteen pages in length. Ms Sipek is a rehabilitation counsellor. Ms Sipek put forward the following jobs as suitable employment for the plaintiff:
[99]DCB 68
(i) Customer service assistant (in own community)
158 The plaintiff lives in North Dandenong. In Dandenong, there is a significant expat Afghan community with numerous Afghan shops, stores and businesses. The plaintiff agreed with that proposition in his evidence.
159 The proposed job was a “meet and greet” role in customer service. The duties would involve standing near the store entrance, greeting customers, checking bags on exit from the store and assisting with self-service checkout. In his evidence, the plaintiff stated he could assist with the sale of a specific item – flat bread – to a non-Afghan customer. I find that the duties for this job are within the capacity of the plaintiff to perform. While there was no specific place of employment identified in the IPAR report, such employment would be suitable for the plaintiff. The evidence is that the gross income would be $800 per week as the median weekly earnings.[100]
[100]DCB 73
(ii) Enquiry clerk
160 The duties for the enquiry clerk include the roles of using a computer, collecting resources, carrying out research and greeting customers. Taking into account the plaintiff’s limited English skills and very limited computer literacy, and the level of formal education in Afghanistan that the plaintiff has achieved, I am not satisfied he could engage in the role of an enquiry clerk, even after extensive retraining. The enquiry clerk job is “a bridge too far” for the plaintiff to train himself to achieve. I find the plaintiff could achieve all of the physical requirements of enquiry-clerk employment.
(iii) Packer (light duties)
161 This suggested employment of a packer was sourced on a website known as joboutlook.gov.au. The packer role was for meat, fruit and vegetables, packing by hand. The relevant listed physical demands for this position included:
·standing constantly when working
·bending is frequent where lifting or leaning over packing equipment is required
·twisting of the body or neck may be required on an occasional to frequent basis.[101]
[101]DCB 77
162 There are other physical demands that may be beyond the plaintiff’s physical capacity, but the three requirements that I have just referred to are outside the physical capacities of the plaintiff, as satisfied by his medical practitioners. I note for completeness that this is an internet-sourced employment and there has not been a “site assessment” of the position. The position of packer, as outlined, is not suitable employment for the plaintiff.
(iv) Cleaner (domestic or commercial)
163 The physical requirements of this internet-sourced employment position are listed as including the following:
·constant standing and walking
·twisting of the body and neck
·light to medium lifting (up to 22.7 kilograms), including carrying cleaning equipment, pushing floor polishers, vigorous rubbing and wiping
·repetitive movements likely to be frequent for tasks such as sweeping, vacuuming and polishing.[102]
[102]DCB 79
164 Based on the medical opinions and the restrictions placed on the plaintiff by his treating medical practitioners, this job as a cleaner is not “suitable employment” as defined in the Act. In conclusion, the only suitable employment for the plaintiff as set out in the IPAR report dated 26 May 2015, is a customer service assistant (in own community). At that time, the gross income per week would have been $800.
CoWork jobs
165 The defendant relied upon a CoWork Pty Ltd report dated 25 March 2020 prepared by Katarina Clarke, occupational therapist. The report was fifty-eight pages in length.
166 The CoWork report included a detailed assessment of the plaintiff’s capabilities, the medical opinions in relation to the plaintiff’s physical limitations and the employment opportunities in the marketplace. Ms Clarke’s opinion was there were four occupations suitable for the plaintiff:
(i) delivery driver
(ii) mobile food van salesperson
(iii) carpark attendant
(iv) security officer.
(i) Delivery driver
167 The plaintiff had previously worked as a taxi driver in Afghanistan. The gross weekly income for this employment was $966 gross as an average income. The delivery driver employment covered fast foot, spare parts, pathology, florist deliveries and pharmacy. This employment is light work and suitable for the plaintiff.
(ii) Mobile food van salesman
168 The gross weekly income for this employment is $1,100. The requirements of the employment are set out in the Defendant’s Court Book at page 172. This position involves one week on-the-job training prior to commencement of the work. I have analysed the physical and other job requirements and find that this job is beyond the capabilities of the plaintiff, hence it is not suitable employment for him.
(iii) Carpark attendant
169 The gross weekly average earnings for a carpark attendant is $1,100.[103] The physical requirements of the position as a carpark attendant are within the restrictions and light-work capacity of the plaintiff. On-the-job training for the collection of parking fees and the management of cash are within the plaintiff’s ability to learn. I find that this employment is suitable employment for the plaintiff. This finding is consistent with the medical opinions in respect of the plaintiff’s capacities.
[103]DCB 156
(iv) Security officer
170 The gross average weekly earnings for a security officer is $1,250.[104] The physical requirements for the employment as an aviation security officer are set out in the CoWork report.[105] The routine activities of a security officer would not be a challenge for the plaintiff, but the realities of security-type work is that confrontation with the public or offenders can involve very physical activity, which is beyond the capabilities of the plaintiff and could readily place him in a greater-than-normal risk of injury or exacerbate his existing compromised physical condition. Despite Dr Bloom’s optimistic opinion that the plaintiff could engage in this employment,[106] I find that the role of security officer is not suitable employment for the plaintiff.
[104]DCB 157
[105]DCB 186
[106]DCB 122
171 The plaintiff relies on the IPAR job seeker review (8-week report dated 29 December 2015), to support the issue of motivation to engage in employment and seek alternative suitable employment. The report states: “Mr Amini attends JSR appointments and demonstrated when he is to receive advice and assistance around job seeking”.
172 The plaintiff’s motivation to obtain alternative employment was a major contention in this proceeding. On numerous occasions during the course of his evidence, the plaintiff stated that he had applied for jobs and was seeking jobs, and had been told about jobs.[107] In re-examination, Mr O’Dwyer, for the plaintiff, asked the following question:
Q: “All right. Do you want to work or not?---
A:Yes. Yes, if there is a job, within my capacity or capability I will get it, I’ll do that because I’m very (indistinct) to answer your question.”[108]
[107]T55-56, 61, 84 and 90
[108]T97
173 I find that the plaintiff, while expressing a keenness and willingness to find employment, has done very little to obtain or seek employment. I accept that he has made application through Centrelink to obtain employment, but has been a recipient of Centrelink payments since 2016 to the present time. It is a condition of continuing to receive Centrelink payments that the plaintiff makes an application for employment.
174 The plaintiff relied upon a report of Mr Paul Harley, vocational assessor, of Vocational Directions Pty Ltd dated 3 September 2018. The plaintiff also relied upon a Flexi Personnel earnings report dated 27 April 2020. Mr O’Dwyer, on behalf of the plaintiff, tendered exhibit “D” which was a calculation sheet for the plaintiff’s economic loss as a result of his injuries.
175 Mr Hartley, in his report, noted that the medical opinion is divergent regarding the plaintiff’s physical capacity for employment.[109] He then went on to say:
“It is outside my scope of practice as a Social Worker / Occupational Rehabilitation Consultant / Vocational Assessor to make a determination as to which medical opinions to accept, however based on prevailing medical opinion, with no capacity to return to his pre-injury employment a renderer, or indeed as abattoir labourer based on the demands of that role, and a restricted work capacity, I believe it is clear that Mr Amini lacks transferable education, skills and experience for alternate forms of employment within his residual functional capacity. However, if accepting the sole opinion of Dr Barton some 2.5 years ago, Mr Amini could return to his pre-injury role or the sole opinion of Mr Drnda, then he cannot work.”
[109]PCB 251
176 The evidence in this case is that Mr Barton now accepts that the plaintiff cannot return to his pre-injury occupation of a renderer but maintains the position that he has a capacity to work in a light physical employment.
177 Mr Hartley set out his conclusions in his report, wherein he stated:
“Therefore, having comprehensively considered and discussed in the body of this report [the] nature of Mr Amini's physical (lower back) injury and its sequelae; the nature of his incapacity and pre-injury employment; his age (which is not a barrier); his education, skills and work experience; his place of residence; the medical information provided; and the occupational rehabilitation services that were provided but now are not, I am unable to put forward any employment options for which I believe he will be able to fulfil the inherent vocational requirements within his residual functional capacity, or for which he could be considered realistically marketable.”[110]
[110]PCB 253
178 Mr Hartley then went on to state that the plaintiff would require some considerable retraining. He stated as follows:
“In the absence of considerable amelioration of his work-related injury symptoms, and the successful completion of considerable, time consuming retraining such as enhancement of his foundation skills for education and employment, his English literacy, his digital literacy and some vocational re-education, I believe that on the balance of probabilities, Mr Amini’s workforce disenfranchisement will persist into the foreseeable future.”[111]
[111]PCB 254
179 I do not accept Mr Hartley’s opinion in respect of the plaintiff’s employability. I have previously set out the capabilities of the plaintiff and the options for his employment as a “light-work back”. An example of the approach by Mr Hartley is set out in his criticism of the suggestion that the plaintiff could do the meet and greet job in an Afghan establishment. He stated as follows:
Even should Mr Amini be able to gain work in an Afghani/Dari establishment, such businesses are not viable commercially unless they are able to interact with customers from a variety of ethnicities, particularly in an area such as Dandenong.”[112]
[112]PCB 254
180 There is no basis for Mr Hartley to make such a statement. He has offered no evidence to support such a statement. I find the whole orientation of Mr Hartley’s report is to find an obstacle or reason why the plaintiff could not perform any of the tasks put forward by the other vocational assessors. There is, in his report, not one positive suggestion about the ability of the plaintiff to regain a fruitful life by obtaining some employment in the future.
181 As a result of my findings, I do not accept that Mr Hartley’s report is of much assistance to the Court in the determination of the plaintiff’s ability to re-engage in the workforce.
182 In conclusion, I find that the plaintiff has a capacity to work in light-work employment. The roles of packer outlined in the Recovre report, grossing $1,026 per week, is suitable employment for the plaintiff. I find that the role set out in the IPAR report as a customer service assistant (in own community) which would result in an $800 gross weekly earnings, is suitable employment for the plaintiff. I find that the role of delivery driver set out in the CoWork report, which would result in a $966 gross per week income, is suitable employment for the plaintiff. Finally, the carpark attendant role set out in the CoWork report, with a gross weekly income of $1,100, is suitable employment for the plaintiff.
183 The gross incomes referred to in the previous paragraph are for full-time employment. I accept the preponderance of the medical evidence establishes that the plaintiff has the capacity to engage in full-time employment once he has built up suitable fitness for work, given that he has not engaged in employment since 2014.
184 On the basis of those figures, the plaintiff has failed to satisfy the Court that his income has been reduced by 40 per cent or more as a result of the physical injury to his back. I do not accept that the psychological injury impacts on the plaintiff’s capacity to engage in suitable employment, based on all the medical evidence in this case.
185 The application for loss of earnings certification in respect of the plaintiff’s lower back physical injury and his psychological/psychiatric condition is dismissed.
Orders
(1)Leave is granted to the plaintiff to bring common law proceedings to recover damages for pain and suffering arising from an injury to his lower back in the course of his employment, and in particular on 25 February 2014.
(2)The application for leave to bring common law proceedings to recover damages for mental or behavioural disturbance or disorder arising out of an injury suffered by the plaintiff in the course of his employment is dismissed.
(3)The application for leave to bring common law proceedings in respect of loss of earning capacity as a result of the physical injury to the plaintiff’s lower back or the mental or behavioural disturbance or disorder is dismissed.
I reserve the question of costs.
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