Aslim v Victorian WorkCover Authority
[2025] VCC 8
•24 January 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-24-01784
| GOKHAN ASLIM | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE MANOVA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 and 17 October 2024 | |
DATE OF JUDGMENT: | 24 January 2025 | |
CASE MAY BE CITED AS: | Aslim v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 8 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to spine – pain and suffering – range – credit and reliability
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), s 325 and s 335
Cases Cited:Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Palmer Tube Mills (Aust) Pty Ltd & Anor v Semi [1998] 4 VR 439; Johns v Oaktech Pty Ltd [2020] VSCA 10
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms M Pilipasidis SC with Mr T Nathanielsz | Arnold Thomas & Becker |
| For the Defendant | Mr B McKenzie | Lander & Rogers |
HER HONOUR:
Introduction
1The plaintiff, Mr Gokhan Aslim, seeks leave pursuant to s 335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act2013 (Vic) (‘the Act’) to bring common law proceedings to recover pain and suffering damages in respect of an injury to his lumbar spine, arising from a single incident in his workplace.
2On 7 May 2020, Mr Aslim was employed at MEC Food Machinery Australia Pty Ltd (‘the employer”) as a labourer and cleaner of food machinery. He injured his back performing a two-man lift of a heavy pasta machine, which he alleges weighed 100 kilograms (“the injury”).
3He went to his doctor the following day as he had back pain. This pain, he claims, got progressively worse and now travels down his back into his thighs and shins.
4The defendant, the Victorian WorkCover Authority (“VWA”), did not dispute the compensability of the injury. However, issue was taken with Mr Aslim’s credit. The VWA also submitted the statutory test had not been met.
5The hearing proceeded in the usual way. Mr Aslim was the only witness to give oral evidence and be cross-examined. The parties otherwise tendered various reports from their respective court books. The VWA also relied on seven minutes of surveillance taken of Mr Aslim on 19 September 2024 and 2 October 2024[1], which showed him attending an appointment,[2] shopping in a supermarket and carrying his purchases home from a vehicle.
[1]Exhibit D1.
[2]Dr Joseph Slesenger see Amended Defendant’s Court Book (“DCB”) 29.
The relevant legal principles
6The legal principles are well known and were not in dispute. The Court must not give leave unless it is satisfied, on the balance of probabilities, that the injury is a “serious injury”. Mr Aslim bears the onus of proving, on the balance of probabilities, the following criteria:
(i) the injury is a “serious injury” by reference to the pain and suffering consequences of any impairment or loss of the body function of the lumbar spine, when judged by comparison with other cases in the range of possible impairments or losses of a body function and may be fairly described as being “more than significant or marked” and as “being at least very considerable.[3]
[3]Section 325(2)(b) and (c) of the Act.
7In determining the application, the Court must bring a value judgement to the assessment as to whether “an injury” satisfies the narrative test.[4]
[4]Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592 (“Kelso”); Sabo v George Weston Foods [2009] VSCA 242 at paragraph [67].
Background
8Mr Aslim was born in Türkiye in 1979.
9He has been in Australia since he was four years old. He competed Year 11 and has since worked in a variety of industries which he described as “a bakery”, “farms” and “warehousing”.
10From time to time, he has also been in receipt of welfare benefits.[5]
[5]The taxation summary in evidence shows that, between 2017 and 2024, Mr Aslim has been in receipt of benefits each year, and has also received income from employment; see Plaintiff’s Amended Court Book (“PCB”) 66.
11He is a single man without children.
12On 13 April 2020, he commenced work with the employer and he suffered the injury on 7 May 2020. He did not return to work for this employer.
13He has had three sessions of physiotherapy, “a few consultations” of pain management and has taken pain-relieving and anti-inflammatory medication for his injury.
14In February 2021, Mr Aslim was working for another employer as a forklift driver when he injured his right hand. He went off work due to this injury and has not returned to work since.
Evidence
Treating medical practitioners
General practitioners (“GPs”)
15After the injury, Mr Aslim attended a number of different GP clinics. This means there has been no continuity of treatment and the opinion of each is limited to their assessment of him based on infrequent attendance.
16Between 24 July 2021 and 2 September 2023, Mr Aslim attended the Waverly Family Healthcare clinic.
17On 2 July 2024, Dr Maggie Cai, of that clinic, reported Mr Aslim had been referred for physiotherapy and pain management, both of which he terminated prematurely. On 24 August 2022, he saw Dr Neela Janakiramanan, but was reluctant to try the treatment offered.[6]
[6]PCB 55-57.
18On 18 April 2024, Dr Gelui Cruz provided a treating doctor’s report to the employer’s agent.
19Dr Cruz reported she had provided two referrals to a back specialist, one of which was still pending, and the other had been declined by the specialist who did not treat WorkCover patients.
20Dr Cruz reported she could not see Mr Aslim working in the near future, as his motivation was low and “[m]edications either do not work for him or he finds it hard to comply with them”.[7]
[7]PCB 69.
21Mr Aslim also had a left hand/arm injury, for which he had been referred for nerve conduction studies. Further, it had been suggested to him he receive treatment under a mental health plan, but he did not consider that option.
22Dr Cruz was asked to comment on whether options in a vocational assessment report were clinically appropriate in terms of his capacity and restrictions, and said:
“Pain management is very important and once this is under specialist care hopefully he will be able to undertake more tasks relevant to his previous work.” [8]
[8]Ibid.
23Dr Cruz also reported that, on 14 March 2024, Mr Aslim had reported some improvement on Gabapentin, so his dose was increased to three times a day.[9]
[9]PCB 70.
24Mr Aslim’s current treating doctor is Dr Amit Singh.
25On 14 August 2024, Dr Singh reported “to whom it may concern” that Mr Aslim was suffering from long-term chronic back pain and would benefit from seeing a physiotherapist.[10] The contents of this report suggest it may have been a referral for physiotherapy.
[10]PCB 71.
Dr Pouya Hafezi, rehabilitation pain specialist
26On 5 September 2022, Dr Hafezi reported that his examination of Mr Aslim demonstrated a positive FABER test, limited range of lumbar motion and paravertebral muscle guarding.[11] As a result of these findings, Dr Hafezi referred Mr Aslim for MRI and bone scans with SPECT CT.
[11]PCB 47.
27On 4 October 2022, Dr Hafezi reported he had reviewed the scans and found the bone scan was grossly unremarkable and the MRI scan showed multilevel degeneration on L2-4, with foraminal narrowing at L4-5 and multilevel facet arthropathy.[12]
[12]PCB 49.
28Dr Hafezi requested approval for medial branch blocks – a diagnostic test which could, if positive, give indication for radiofrequency neurotomy.[13]
[13]Ibid.
29On 5 February 2023, Dr Hafezi reported Mr Aslim had attended two appointments, the first an assessment and the second a follow-up review on 3 October 2022. Between 8 November 2022 and 3 January 2023, a number of appointments had been scheduled, which Mr Aslim failed to attend. He was subsequently discharged due to “multiple non-attendance”.[14]
[14]PCB 50.
30Significantly, Dr Hafezi reported that, while the axial spine changes visible on the imaging were not reversible, and the radiological findings were permanent:
“6)…there is a good chance of recovery from a physical and functional perspective with a multidisciplinary pain management program.
7) I would recommend examination under fluoroscopy and a diagnostic medial branch block to proceed to radiofrequency neurotomy, provided the diagnostic block resulted in significant pain reduction. The patient would benefit from a multidisciplinary pain management program.”[15]
[15]PCB 51.
31A Network Pain Management Program: Non Completion of Program Report was tendered by Mr Aslim. The report confirmed Mr Aslim had commenced the program on 27 July 2022 and was discharged on 9 August 2022. The reason for the discharge was that:
“Mr Aslim reported that at this stage he feels a pain management program is not the appropriate approach for him. Mr Aslim would like to explore other treatment with his GP before completing a pain management program.”[16]
The plaintiff’s medico-legal reports
[16]PCB 61.
Dr Hazem Akil, neurosurgeon
32On 23 July 2024, Dr Akil assessed Mr Aslim via Zoom teleconferencing. He noted Mr Aslim was complaining of lower back pain radiating to both legs and down to the knees.
33Dr Akil considered various radiological investigations, including an MRI scan of the lumbar spine dated 22 September 2022, and diagnosed aggravation of lumbar spondylosis due to lifting heavy objects at work;
“It is difficult to ascertain the extent of the pain that Mr Aslim has. His radiological investigations are not showing significant pathology. He however insists that he has constant pain in his lower back, however, I note that he is taking only Panadol for pain relief.
I would recommend further review by a pain specialist. At this stage, I am unable to determine whether he has any work capacity, although I note that he worked most of his life in a physically demanding job and given the persistence of his lower back pain, it would be unlikely that he would be able to return to them (sic)”.[17]
[17]PCB 23.
Dr Eman Awad, occupational health specialist
34On 18 July 2024, Dr Awad assessed Mr Aslim via Telehealth.
35Her report records a history of 9/10 pain, which level did not decrease, even with Panadol, taken when needed.
36Dr Awad received imaging reports, including the MRI scan dated 20 September 2022, and diagnosed aggravation of lumbar spondylosis.
37The report provides that Mr Aslim had no capacity for his pre-injury duties. Dr Awad noted he had previously worked in jobs which required no formal qualifications, including in a warehouse, in construction, as a factory hand and baker.[18]
[18]PCB 37.
Dr Gavin Weekes, pain specialist
38Dr Weekes assessed Mr Aslim via Telehealth on 23 August 2023. His report refers to chronic lower back pain with scores between “7-9/10”, which could be aggravated by activity. The pain radiated to both lower limbs, more on the right and into the feet. The leg pain was more intermittent and described as aching and burning.
39Dr Weekes considered the radiological investigations, including the MRI scan dated 20 September 2022 and the SPECT CT dated 20 September 2022, which “showed no bone scan abnormality to explain symptoms”. The diagnosis was “chronic refractory lower back pain”[19] on a:
“… background of aggravation of lumbar spondylosis with radiological evidence of degenerative disc disease and facet arthropathy, and possible nerve root compression.”[20]
The Defendant’s medico-legal reports
[19]PCB 41.
[20]PCB 43.
Dr Clayton Thomas, consultant in rehabilitation and pain medicine
40On 17 August 2023, Dr Thomas assessed Mr Aslim in his Glen Waverley rooms.[21]
[21]Dr Thomas also provided an opinion on capacity on 11 November 2023 at DCB 50.
41Dr Thomas noted Mr Aslim was taking, six paracetamol a day and occasional aspirin. He had been referred to the Victorian Rehabilitation Centre, but had not commenced their program and had attended Dr Hafezi, but failed to complete the treatment with him.
42Radiological investigations had been provided to Dr Thomas, including an MRI scan of the lumbar spine dated 20 September 2022.
43Dr Thomas considered Mr Aslim’s stated complaints were “nonconcordant” with the investigations. Mr Aslim had adopted an extremely passive approach and was describing a level of disability which was far greater than expected from his clinical examination and investigations.[22]
[22]DCB 45.
Associate Professor Evange Romas, consultant rheumatologist
44On 20 April 2023, Associate Professor Romas conducted an impairment assessment.
45On examination, the lower back showed definite non-organic findings, but there was also reduced spinal extension and right lateral flexion, with positive quadrant testing. There was no clinical lumbosacral radiculopathy.
46Associate Professor Romas diagnosed unresolved lumbar aggravation injury with no clinical radiculopathy.[23]
[23]DCB 55.
47The lumbar spine condition attracted a whole person impairment of 5 per cent.[24]
[24]DCB 56.
Dr Joseph Slesenger, specialist occupational physician
48On 19 September 2024, Dr Slesenger assessed Mr Aslim in his rooms.
49Dr Slesenger considered the medical reports, investigations and notes. He examined Mr Aslim and diagnosed pre-existing lumbar spinal impairment with symptoms aggravated by the injury.
50Dr Slesenger considered Mr Aslim could not return to work in pre-injury duties and imposed restrictions on Mr Aslim’s capacity for work. They included a limit of 10-kilogram lifting, avoiding repetitive bending and twisting, and avoiding prolonged static postures.[25]
[25]DCB 40.
51Dr Slesenger considered Mr Aslim had reached maximum medical improvement, his condition had stabilised, and he did not anticipate a significant change in his presentation in the foreseeable future.
Mr Aslim’s evidence
52Mr Aslim made two affidavits. The first was sworn on 23 October 2023 and the second on 26 September 2024.
53In those affidavits, Mr Aslim deposed as follows:
(a) his previous work experience included employment in a bakery, in farms and warehousing;
(b) he was employed in a “labouring and cleaning role” with the employer between 13 April 2020 and the date of injury, 7 May 2020;
(c) he was injured performing a two-man lift of a 100-kilogram pasta machine;
(d) following the injury, he was investigated with scans and referred to a physiotherapist, but his back pain got worse;
(e) occasionally his pain travelled down to the back of his legs;
(f) he had “physiotherapy and chiropractic treatment”, but things did not improve, so he was referred to pain management;
(g) he attended “a few consultations” with Dr Hafezi, but he stopped going because the treatment did not seem to be helping;
(h) he worked in lighter employment with (a post injury employer), but injured his right hand, and has not worked since;
(i) his back continues to be a major problem, he is in pain all the time and most movements involving his back, set off more significant pain;
(j) the injury means he cannot get back to “physically demanding employment”. He has worked in manual labouring jobs over his working life and does not have experience in an office or similar light work environment;
(k) outside work, he enjoyed going to the beach, fishing and long-distance walking, which is all impossible now;
(l) he takes between six and eight Panadol Extra tablets a day, which help to some extent with the pain;
(m) he has pain in both legs, worse on the right, and remains in pain all the time;
(n) it is hard to avoid flaring up pain every single day, as most movements involving the back will set off more significant pain;
(o) his days are controlled by pain and he does exercises and stretching for his back;
(p) back pain affects his sleep;
(q) he does his own shopping and can drive his car for short distances;
(r) he is taking Naprosyn, two a day, and Panadol, four a day. Gabapentin was not really helping. He continues to see his GP about the back pain; and
(s) his back has become slightly worse.
54In cross-examination, Mr Aslim said:
(a) the Gabapentin was not helping, so he stopped it. He is now taking Naprosyn, two tablets daily;[26]
[26]Transcript (“T”) 11.
(b) he attended three sessions of physiotherapy, but it only helped for half an hour after the treatment;[27]
[27]T14 ꟷ T15, T30 and T58.
(c) he told the pain management people he did not think pain management was appropriate for him;[28]
[28]T16.
(d) he was told there was a 50/50 chance of the medial branch blocks worsening his condition, so he refused to go through with the treatment;[29]
[29]T17.
(e) he missed two appointments and Dr Hafezi’s receptionist told him they would not make him anymore appointments so “[he] stopped going there as well”;[30]
(f) some appointments he could not get to because his car was repossessed, and he did not want to ask for a taxi voucher because there were a lot of headaches in getting a taxi voucher;[31]
(g) he (and his doctors) tried calling two surgeons to book an appointment, but he could not get through and gave up;[32]
(h) he did not have the MRI scan suggested by Dr Cruz in April 2024, because he gave her the MRI scan from 2022 and she accepted it;[33]
(i) he stopped the Gabapentin (around April 2024) when he ran out, he did not get any more prescriptions, so he was not taking it in September 2024;[34]
(j) he did not accept the proposition he was only taking Naprosyn “for the purposes of this case”. He said “[n]ot just the case. Because of the pain”;[35]
(k) in January 2021, he started forklift driving work, 8.00am to 3.00pm, at a paint factory, and at (the post injury employment), through a labour hire organisation, but stopped when he injured his hand;[36]
(l) he has not made any attempts to find any other work, but the provider, AMS[37], might find a job for him;[38]
(m) he used to go swimming at the beach fifteen years ago when he lived in Geelong. It features in his affidavit because he was asked what he likes doing. He cannot go now due to shortness of breath caused by cigarette smoking;[39] and
(n) the last time he went fishing was seven or eight years ago, and the last time he went long distance walking was well before his back injury. He had put these in his affidavit because he was asked what he likes doing.[40]
[30]T18.
[31]T20 ꟷ T21.
[32]T25 ꟷ 26.
[33]T26.
[34]T27.
[35]T29.
[36]T31 ꟷ T32.
[37]Two reports of “AMS Consulting Group” were tendered in evidence. They relate to occupational rehabilitation services provided to Mr Aslim and to Mr Aslim’s transferable skills DCB 60-74.
[38]T36.
[39]T53 ꟷ T54.
[40]T54 ꟷ T55.
55In re-examination, Mr Aslim said:
(a) prior to his back injury he could walk for an hour or two;[41]
(b) Dr Singh prescribed the Naproxen for him, to take one tablet twice a day;[42]
(c) he has never taken Tramadol;[43]
(d) his back was “killing” him when he worked for (the post injury employer);[44] and
(e) he stopped doing the pain management because he was told if he had not had surgery, it was too soon for him to attend, so he did not need to attend.[45]
[41]T61.
[42]T61 ꟷ 62.
[43]T63.
[44]T64.
[45]Ibid.
Surveillance
56The VWA tendered surveillance film taken of Mr Aslim on 19 September 2024 (the day he attended Dr Slesenger) and on 2 October 2024.
57The 19 September 2024 film is extremely brief. It shows Mr Aslim smoking a cigarette outside Dr Slesenger’s rooms and walking across the road.
58The 2 October 2024 film shows Mr Aslim at an ATM, walking around a shopping centre and purchasing items from a supermarket. It also shows Mr Aslim bending at the waist to place items into the rear passenger side of a vehicle, driving the vehicle, and again bending at the waist to retrieve items from the vehicle. It also shows him bending at the waist to place a box of Coca Cola cans on the ground, then pick them up and take them, together with the shopping bag home.
Submissions of the parties
The plaintiff’s submissions
59Senior Counsel for Mr Aslim submitted the case was extraordinary because the VWA’s doctors do not support the VWA, and neither does the surveillance. In particular because the VWA failed to provide the film to its doctors for comment.[46] Further that Dr Clayton Thomas, who is very experienced, did not say in his report that he thought Mr Aslim “was putting it on”, at best Dr Thomas said Mr Aslim’s pain was out of proportion.[47]
[46]T82.
[47]T84-85.
60Medical experts were uniform in their diagnosis of lumbar spondylosis.
61Mr Aslim consistently reported lower back pain radiating to both legs, which symptom was noted in medical records and aligns with clinical examinations.
62The inability to return to pre-injury work means he is restricted in the type of work he can do in future.
63It is conceded Mr Aslim has had very little treatment, however the need for regular Panadol medication is evidence of ongoing symptoms and a very considerable consequence.[48]
[48]T109 ꟷ T110.
The VWA’s submissions
64Counsel for the VWA submitted credit was a significant issue in the case, because the medical evidence alone does not establish the nature and extent of Mr Aslim’s disability.
65The surveillance video showed “a picture of normality”[49] with Mr Aslim engaging in normal shopping activities, which included bending and twisting. It showed him lifting up a box of Coca Cola cans from the shelf to the trolley, from the trolley to the car and from the car to the side of the road, all of which was inconsistent with his deposition that “most movements involving the back will set off more significant pain”.[50]
[49]T74.
[50]T75.
66Mr Aslim’s affidavits did not refer to a number of matters that he gave evidence about in cross-examination, including:
(a) that his back was numb; and
(b) his explanations for his failure to have, or complete, recommended treatment.
67The affidavits were misleading, because they attribute an inability to perform activities to the back injury, when he had not performed those activities for many years prior to the back injury (fishing, long distance walking and going to the beach).[51]
[51]T78.
68The impaired activities alleged in the affidavits were different to the activities he told doctors about, which include surfboarding, basketball, soccer, running and cycling.[52]
[52]Ibid.
69Mr Aslim’s evidence about the medication he has taken ought not be accepted because there is no supporting report from his GP.
70Mr Aslim’s evidence about the treatment he has had (and his lack of engagement) ought not be accepted, as it was not supported by the relevant treating doctors. The Court ought not accept his explanations for failure to have the treatment, because he had failed to provide that explanation in his affidavits.
71The reports from the treating doctors did not substantiate Mr Aslim’s claims for significant impairment. Mr Aslim has had five treating doctors and there is no report from the current one.[53]
[53]T77.
72Mr Aslim’s decisions to terminate treatment early suggest the back injury is not as debilitating as he would have the Court believe.
73The surveillance shows Mr Aslim’s objective presentation is not consistent with the picture painted in the affidavits.
74Mr Aslim’s ability to return to full-time work after the back injury indicates a level of physical ability which is inconsistent with the alleged consequences.[54]
[54]T75 ꟷ 76.
Mr Aslim’s credit
75In an application such as this, the credit of the plaintiff is often of great importance, both directly and indirectly.
76The opinions of medical witnesses and other experts depend upon what they have been told by a plaintiff and upon his behaviour and performance on examination and on testing.[55]
[55]Palmer Tube Mills (Aust) Pty Ltd & Anor v Semi [1998] 4 VR 439 at 448 (per Brooking JA); Johns v Oaktech Pty Ltd [2020] VSCA 10 at paragraph [76].
77Credit is also important because the Court must be satisfied of the alleged consequences and their impact on the plaintiff’s residual capacity.
78My overall impression of Mr Aslim’s evidence is that he appeared to give direct answers to questions asked of him and readily accepted he had provided histories in the various reports before the Court.
79Counsel for the VWA sought to make something of Mr Aslim’s presentation in the witness box, including the fact he gave much of his evidence with one ankle on top of his knee, sitting down, swivelling in the chair. It was submitted this presentation was not consistent with the sitting and standing restrictions in his affidavit.
80On reflection, I draw no adverse inference against Mr Aslim for his physical presentation in the witness box. It may have been a byproduct of the anxiety witnesses can feel when in the unfamiliar and formal environment of a court.
81While it might be possible to conclude that Mr Aslim performed bending activities on the surveillance without obvious signs of restriction, I have given little or no weight to this as there is no comment from the defendant’s doctors on the significance of the activities seen in the video.
82I accept the submissions of Senior Counsel for Mr Aslim the surveillance video did not provide any evidence of ability to perform actions which Mr Aslim said he could not perform.
83I do not draw any adverse inference against Mr Aslim on account of the surveillance.
84Nevertheless, I formed an unfavourable impression of Mr Aslim’s credit. There are a number of reasons for this.
85First, I consider there were inconsistencies between Mr Aslim’s oral evidence and his affidavit evidence. His oral evidence was also compromised by internal inconsistencies.
86Second, I accept the submissions on behalf of the VWA that the affidavits were misleading.
87Third, Mr Aslim’s oral evidence about his treatment and the reasons he failed to compete the pain management course, was contradicted by the relevant report from the treating doctor.
88In his first affidavit, Mr Aslim deposed that, following the injury, he was in significant pain:
“… I therefore went to see my GP. I was referred to have scans and referred to a physiotherapist.
….
The pain didn’t improve. In fact, became worse. … .
…
I tried physiotherapy and chiropractic treatment. Things weren’t getting any better, and I was referred to have pain management treatment in September 2020. I saw Dr Hafezi at ‘The Victorian Rehabilitation Centre’ and attended for a few consultations. I ultimately stopped going as the treatment didn’t seem to be helping me.”[56]
[56]PCB 7.
89The reader of this affidavit is left with the impression Mr Aslim’s significant back pain failed to improve, despite physiotherapy, chiropractic treatment and “a few consultations” of pain management. The impression gained from the affidavit is that his pain worsened despite this array of treatment.
90In cross-examination, however, Mr Aslim said he had been to three physiotherapy sessions and two pain management consultations only. When asked about his attendance at the pain management course, he said it was because the clinic had changed his appointments and he was told they would not make any more appointments for him “so [he] stopped going there as well”.[57]
[57]T18.
91In re-examination, Mr Aslim was asked to explain why he did not complete the treatment and he gave a third explanation (which was inconsistent with the evidence he gave under cross-examination and with his affidavits):
“When I see the specialist they said there, ‘Did you go for surgery?’ I said, ‘No. Is your back broken?’ (sic) I said, ‘No’. They said, they put me into a basic rehab and what the rehab was for like people that went through surgery and I told them, I go, ‘I didn't have surgery’ and they said, you know, ‘It's too soon for you to come here, so there's no need for you to come in’.”[58]
[58]T64.
92I pause to note that the explanations provided by Mr Aslim in his oral evidence were not supported by Dr Hafezi’s report. That report states that he failed to attend four consecutive appointments and he was therefore discharged from the program.[59]
[59]PCB 50.
93The explanations were also not supported by the Network Pain Management Program Non Completion of Program Report. According to that report, Mr Aslim felt the program was not appropriate for him and wanted to explore other treatment with his GP. In cross-examination, Mr Aslim agreed he had provided that account. I consider that account is inconsistent with the account provided in re-examination and his evidence that the program provider had changed his appointments.
94In his first affidavit, Mr Aslim deposed that:
“It isn’t just my employment that has been massively compromised. I used to be active outside of work. I would go to the beach. I would go fishing. I was able to walk long distances. All these things are now close to impossible, and I haven’t even tried to do any of them for some time now as it was too painful when I tried.”[60]
[60]PCB 8.
95The reader would be forgiven for concluding Mr Aslim’s life outside of work and his ability to enjoy recreational activities has been “massively compromised” by his back injury.
96However, in oral evidence, Mr Aslim admitted he had not done any of the activities in his affidavit, for many years prior to his back injury.
97He was asked these questions and gave these answers:
Q:“Before your injury how often do you say you would go to the beach?---
A:When I used to live close by probably once a week, swimming once a week, if that.
Q:When you say ‘when I lived close by’, where were you living?---
A:This is going 15 years ago, in Geelong.
Q:So we established this morning that you were living in Glen Waverley when you suffered your injury?---
A:Fifteen years ago.
Q:So the beach wasn't - had been an issue about 15 years ago?---
A:No, that's my hobbies what I used to like doing.
Q: So why - - - ?---
A: Swimming.
Q:If the beach was something that goes back 15 years, why is it referred to in your affidavit sworn 23 October 2023?---
A:When he asked me, ‘What's your hobbies, what do you like do’, beach, walking, so forward, in general.
…
Q: And before your injury on 7 May 2020 - - - ?---
A:When there wasn't a beach I go swimming, swimming pool, local swimming pools.
Q: And I suggest there's nothing to stop you going swimming now?---
A: There is.
Q: What do you say it is?---
A: Shortness of breath.
Q: What's the shortness of breath from?
HER HONOUR:
Q: Cigarettes probably?---
A: That's it.
MR McKENZIE:
Q: So not your back?---
A: Back, I don't know if it's complicated or not. I haven't been.
Q: When was the last time you went fishing?---
A: A while back.
Q: How long, 15 years ago?---
A: Unlikely, no, about seven, eight.
Q:So if that was seven or eight years ago why is that referred to in an affidavit sworn October last year?---
A:Hobbies.
Q: Sorry?---
A:What are your hobbies? When he says, ‘What are your hobbies, what do you like to do?’ Certain things I do like doing. Doesn't necessarily I do it every day.
Q:What about walking long distances, when was it's (sic) last time you in fact went walking for a long distance?---
A:A long time.
Q:Yeah, long before May 2020?---
A:Way before then.
Q:I suggest that you could go walking for a long distance if you wanted to right now, what do you say?---
A:Not true.”[61]
[61]T54 ꟷ 55.
98The reports before the Court also contain histories of inability to participate in a range of other activities, basketball, surfboarding, soccer, running and cycling, as a result of the back injury. Counsel for the VWA said he had not asked Mr Aslim to comment on these histories as they were not in the affidavits. However, counsel submitted these histories had been noted by medico-legal examiners “in support of the case”.
99I accept that submission, but I give limited weight to it, as Mr Aslim had not been asked about whether he provided those histories to the relevant doctors.
100I reject the submission made on behalf of Mr Aslim that the VWA’s doctors do not support the VWA.[62] That reverses the onus. It is Mr Aslim who must make out his case.
[62]T82.
101As I have made adverse credibility findings, it is necessary to consider the objective evidence and determine whether it supports Mr Aslim’s claims of pain and restriction, and whether it supports a finding that he has suffered a serious injury.
Injury
102There is consensus among the medical experts that Mr Aslim’s lumbar spine is affected by degenerative disc disease. There is no evidence of a frank injury. At best, Mr Aslim may have aggravated the pre-existing degenerative condition affecting his spine.
103I do not accept the diagnosis of Dr Weekes that there is any evidence of radiculopathy. He is alone in that opinion. There is no radiological support[63], no objective or clinical evidence for it, and he did not examine Mr Aslim in person.
[63]The MRI report dated 18 June 2021 refers to “probable compression” of nerve roots (PCB 18). However, the report of a subsequent MRI performed on 20 September 2022 (PCB 20) makes no reference to any compression. Dr Weekes referred to the September 2022 MRI report but did not provide a path of reasoning for his findings of “possible nerve root compression” in relation to that MRI and did not discuss any difference between the two MRI reports.
Permanence
104There was no dispute that the physical condition of Mr Aslim’s spine is permanent.
Impairment consequences
105I consider the medico-legal reports commissioned by Mr Aslim’s lawyers are of limited assistance, as they were all written without the benefit of a physical examination of Mr Aslim. The experts relied upon by the VWA were in a better position to provide an opinion, as each of them examined Mr Aslim, in person.
106Although Mr Aslim has had limited interactions with treating doctors, I prefer their opinions, as they have been formed by taking into account imaging, with a view to treatment.
Consequences of the injury
Pain
107Mr Aslim complained of significant levels of pain to all doctors and in Court.
108I do not accept his evidence about his pain levels.
Objective evidence
109Mr Aslim refused to undergo the diagnostic blocks, so any objective evidence they might have provided, is not available.
110Dr Hafezi found a positive FABER test and muscle guarding which are objective findings. However there are two difficulties with this aspect of Dr Hafezi’s opinion. First, there is no comment on the significance of the objective findings in assessing Mr Aslim’s pain levels and restrictions. Second, Dr Hafezi’s opinion is that Mr Aslim would have benefited from the treatment he refused to undertake.
111Associate Professor Romas found “positive quadrant testing” which is an objective finding. However, he provided no reasoning or opinion on its significance and what it might say about Mr Aslim’s pain levels or other restrictions.
112A further complication of any “objective findings” made by Associate Professor Romas is his opinion that some of Mr Aslim’s presentation was functional.
113On the question of pain levels, I prefer the evidence of Dr Thomas, who physically examined Mr Aslim, rather than Dr Weekes, who did not. Both have the same specialty.
114Dr Thomas considered Mr Aslim’s pain complaints were non-concordant with the investigations and that he had described pain levels which were far greater than expected from the clinical examination and investigations.[64]
[64]DCB 45.
115Mr Aslim has done almost nothing about the pain. Until very recently, his sole source of pain treatment has been over-the-counter paracetamol and aspirin.
116There is no evidence from any treating doctor about the Naproxen medication and why it was recently prescribed to him. Mr Aslim was asked whether he was taking that medication for the court case. He said, “[n]ot just the case. Because of the pain”.[65] One interpretation of that evidence is that the court case was part of his reason.
[65]T29.
117Mr Aslim’s evidence about the Gabapentin medication is not supported by the contemporaneous medical notes tendered on his behalf.
118The 14 March 2024 note of Dr Cruz provides that Mr Aslim’s back pain “seems better” when taking Gabapentin.[66] Her report suggests Mr Aslim had reported some improvement from the medication.
[66]PCB 70.
119On 17 May 2024, Dr Lisa Mu (at the same clinic) increased the dosage from 100 milligrams, which was a subtherapeutic dose, to 300 milligrams, which was the minimum starting dose.[67] Her progress note provides:
“workcover patient of [Dr Cruz]
only single appt booked
injury last year
back pain, nerve pain
on gabapentin and not working, but only on 100mg tds
as per mims starting dose is 300mg tds
so changed him to that”[68]
[67]Plaintiff’s Supplementary Court Book (“SCB”) 8-9.
[68]SCB 9.
120Mr Aslim said he never took that higher dose:
“… I told the doctor it’s not helping and she said, you know, just try to take it and see where we go from there. And after that I never seen a doctor again .. .”[69]
[69]T59 ꟷ 60.
121There was no explanation by Mr Aslim for his failure to take the recommended (therapeutic) dose. In re-examination, he was asked why he stopped taking Gabapentin and he answered “it wasn’t helping, doing anything”.[70]
[70]T9.
122Dr Cruz reported that “[m]edications either do not work for him or [he] finds [it] hard to comply with them”.[71]
[71]PCB 69.
123I do not accept the submission made on his behalf that he has trialled medication and it has not worked. It is unclear why, if Mr Aslim’s pain is as severe as he alleges, he has not complied with the dosage recommended by his doctor, nor, indeed, with any treatment recommendations.
124I accept the submission made on behalf of the VWA that there has been a lack of engagement with treating practitioners, including with the suggested medications or dosage levels.
125I consider what Mr Aslim is doing about the pain is not consistent with what he says about the pain to doctors and to the Court. I do not accept he has constant pain.
126While I accept he may have pain from time to time, I am unable to make findings about the frequency and duration of the pain or how it impacts on his life.
Medication and medical treatment
127In Kelso,[72] Dodds-Streeton JA said:
“… The endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence.”
[72]Kelso at 629, paragraph [199].
128Senior Counsel for Mr Aslim submitted the need for daily medications (Panadol and Naproxen, or either of them) bespeaks of a very considerable consequence.
129I accept Mr Aslim may need Panadol (or even Naproxen) from time to time. However I do not consider there is any objective evidence and no evidence from any treating doctor, that he requires these medications daily or will continue to require them for the foreseeable future.
130Mr Aslim has otherwise had very little treatment, three physiotherapy sessions and two attendances at pain management. From time to time, he goes to a GP, but does not comply with treatment recommendations.
131I accept the submissions made on behalf of the VWA that the paucity of treatment supports a conclusion that, whatever is wrong with Mr Aslim’s back, it is not very considerable.
Work capacity
132Senior Counsel for Mr Aslim relied on his inability to return to pre-injury work as a pain and suffering consequence of some significance.
133Mr Aslim’s affidavit provides very little information about his work history and almost no information about his pre-injury duties. It is not at all clear what is meant by a “labouring and cleaning role”.[73]
[73]PCB 6.
134Dr Awad described Mr Aslim’s work history as “a factory hand, a baker, in construction as a labourer, a bricklayer, in landscaping, and as a painter”.[74] The period of his employment in any of these jobs is not apparent.
[74]PCB 37.
135The pre-injury employment was “forklift driver/labourer”. His duties pertained to cleaning old machines which varied in size or weight. Manual lifting of machines was required if there was no forklift.
136It will be recalled Mr Aslim injured his back approximately two weeks after he commenced the employment. Dr Slesenger’s report refers to a history that “he had been pressurised (sic) to commence this role through a Centrelink provider”.[75]
[75]DCB 37.
137It does not appear Dr Awad was aware that between 2017 and 2022, Mr Aslim was intermittently in receipt of welfare-benefits and intermittently working at a variety of jobs. Significantly, Dr Awad’s opinion was based on a history of 9/10 pain, even with medication, and Mr Aslim’s sit/stand tolerances were limited to ten minutes.
138Dr Awad’s opinion that Mr Aslim was unable to return to pre-injury duties, was given without a physical examination of Mr Aslim, and in absence of a correct employment history. It was also based on a history of very severe pain and restriction. That history is compromised, as it comes from Mr Aslim.
139As Dr Thomas said, there is nothing in the imaging provided to Dr Awad which supports the existence of 9/10 pain.
140I therefore do not accept Dr Awad’s opinion Mr Aslim has no capacity for his pre-injury duties.
141Dr Slesenger had a slightly more detailed history of the pre-injury duties, which included cleaning, manoeuvring and dismantling equipment, and using hand tools to dismantle and assemble equipment.
142There is very little information in Dr Slesenger’s report about the duties Mr Aslim performed with the post injury employer. Dr Slesenger described the position as a “[w]arehouse Operator/Forklift Driver”, lifting weights in excess of 20 kilograms. Dr Awad described the pre-injury position as forklift driver/labourer. It is not at all clear on the evidence whether Mr Aslim’s pre-injury and post-injury work duties were the same or different, and if so, how.
143Dr Slesenger examined Mr Aslim in person. He noted an inaccurate history regarding Tramadol medication. Mr Aslim told the Court he had never been prescribed Tramadol. The pain was recorded as being at 7-8/10 and requiring Mr Aslim to rest in bed every day “to relieve his symptoms”.[76]
[76]DCB 33.
144Dr Slesenger considered Mr Aslim could not return to pre-injury work. Like Dr Awad, he considered Mr Aslim was affected by severe pain.
145I reject the opinions of Dr Awad and Dr Slesenger on capacity, as they are based on inaccurate histories.
146I prefer the opinions of the treating doctors.
147Dr Cruz considered that, with the completion of a pain management program, Mr Aslim may be able to undertake more tasks relevant to his previous work.[77]
[77]PCB 70.
148Dr Hafezi said Mr Aslim would benefit from completion of a multidisciplinary pain management program and “there is a good chance of recovery from a physical and functional perspective….the chronicity of his symptoms has been perpetuated by the patient’s lack of adherence to recommended treatments”.[78]
[78]PCB 51.
149While both Dr Cruz and Dr Hafezi considered that Mr Aslim could not return to his pre injury work, those opinions must be read in light of their views that with adherence to treatment, Mr Aslim had a good chance of improvement in his capacity and function.
150Mr Aslim has not discharged his onus of making out that he has no capacity for pre-injury duties on account of his work-related back injury.
Sleep, mobility and activities of daily living
151There is no reliable evidence that Mr Aslim’s sleep, mobility or activities of daily living have been affected to any significant degree by the back injury.
Sports and hobbies
152On Mr Aslim’s evidence, he had given up going to the beach, swimming and long-distance walking many years prior to the back injury.
153There is no reliable evidence that any other sporting or recreational activities are significantly impaired as a result of his back injury.
Conclusion
154Mr Aslim has not discharged his onus of establishing, on the balance of probabilities, the consequences of his work-related back injury are “very considerable” or “more than significant or marked”.
155His application is dismissed.
156I will hear the parties with respect to costs.
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