Bai v VWA
[2024] VCC 2053
•18 December 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-23-07106
| JUMA BAI | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
---
JUDGE: | HIS HONOUR JUDGE GINNANE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 August 2024 | |
DATE OF JUDGMENT: | 18 December 2024 | |
CASE MAY BE CITED AS: | Bai v VWA | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 2053 | |
REASONS FOR JUDGMENT
---
Subject:ACCIDENT COMPENSATION
Catchwords: Serious Injury Application – paragraph (a) and (c ) - pain and suffering – loss of earning capacity
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013 (Vic)
Cases Cited:Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170; Barwon Spinners Pty Ltd & OrsvPodolak (2005) 14 VR 622; Dwyerv Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; HuntervTransport Accident Commission & Avalanche [2005] VSCA 1; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; 243 CLR 361; Noori v Topaz Fine Foods Pty Ltd [2018] VSCA 323; Sabo v George Weston Foods [2009] VSCA 242; Stijepic v One Force Group Australia Pty Ltd [2009] VSCA 181; Tatiara Wheat Co Pty Ltd v Kelso [2010] VSCA 12; TTB SMS Pty Ltd v Reading [2020] VSCA 203.
Judgment: Application granted.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Saunders with Mr L Howe | Zaparas Lawyers |
| For the Defendant | Mr C Miles | Wisewould Mahoney |
HIS HONOUR:
1The plaintiff seeks the grant of a Serious Injury Certificate pursuant to sub paragraphs (a) and (c) of the definition of serious injury in section 335 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (‘the Act’), so as to permit him to commence common law proceedings to recover damages for both pain and suffering and economic loss.
2The plaintiff was represented by Mr Andrew Saunders of counsel together with Mr Howe of counsel. The defendant was represented by Mr Miles of counsel.
3The plaintiff suffered injury in the course of his employment as a renderer when on 18 February 2021, two incidents occurred. While unloading a truck at a job site, two foam insulation panels fell and landed on him, causing him to fall to the ground. He says he felt immediate pain in his lower back, neck and right shoulder. He kept working, and later that day, a security fence and some foam panels that were resting on it fell on him. Thereafter, he says his lower back pain increased and he was forced to stop work.
The Particulars of Injury
4The particulars of injury filed in support of the serious injury application under sub paragraph (a) were:
· spine including but not limited to production and/or aggravation of multilevel intervertebral disc damage, L4/5 disc bulge, L5/S1 disc bulge, spondylosis, stenosis, facet joint hypertrophy, and/or chronic pain; and
· right upper limb including but not limited to chronic pain.[1]
[1]Particulars of Injury dated 29 February 2024.
5The particulars filed in support of sub paragraph (c) were:
· Permanent severe mental or permanent severe behavioural disturbance or disorder including but not limited to development of anxiety and/or depression.[2]
[2]Ibid.
Relevant Legal Principles
6The following statements represent settled law. The Court must not grant leave to commence common law proceedings unless it is satisfied, on the balance of probabilities, that the “injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in section 325(1) of the Act.[3]
[3] Section 335(5) of the Act.
7The definition of “serious injury” contained in section 325(1) of the Act reads:
“Serious injury” means –
(a) permanent serious impairment or loss of a body function; or
…
(c) permanent severe mental or permanent severe behavioural disturbance or disorder…
8To establish a serious injury, the plaintiff must prove, on the balance of probabilities, that:
“the injury” suffered by him arose out of, or in the course of, or due to the nature of employment;[4]
[4]Section 327 of the Act; see also Barwon Spinners Pty Ltd & OrsvPodolak (2005) 14 VR 622 (“Barwon Spinners”).
“the injury” and resulting impairment must be “permanent” – that is, permanent in the sense that it is “likely to last for the foreseeable future”;[5]
the “consequences” of the impairment in relation to “pain and suffering” must be “serious” – that is, the impairment or loss of body function “when judged by comparison with other cases in the range of possible impairments … may be fairly described as being more than significant or marked, and as being at least very considerable”.[6]
[5] Barwon Spinners (2005) 14 VR 622, 638 [33].
[6] Section 325(2)(c) of the Act.
9In regard to a mental or behavioural disturbance or disorder, the determination is whether the injury as thus assessed is objectively “severe” when compared with the range or spectrum of comparable cases.
10The requirement to satisfy these elements is sometimes referred to as the “narrative test”.
11The question of whether an injury satisfies the narrative test is largely one of impression or value judgment.[7]
[7]See Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592, 628; see also Sabo v George Weston Foods [2009] VSCA 242, [67].
12In determining the “consequences” of the injury, the Court is required to consider them to this plaintiff, viewed objectively, arising from the injury.
13In determining the application, the Court:
(a) must not take into account psychological or psychiatric consequences of “the injury” for the purposes of paragraph (a) of the definition of “serious injury” – these can only be taken into account for the purposes of paragraph (c) of the definition of “serious injury”;[8]
(b) must assess whether “the injury” is a “serious injury” as at the time the application is heard;[9]
(c) must give reasons that disclose the pathway of reasoning in dealing with the evidence and issues raised by the application.[10]
[8] Section 325(2)(h) of the Act.
[9] Section 325(2)(j) of the Act.
[10] See generally HuntervTransport Accident Commission & Avalanche [2005] VSCA 1, [23]-[26].
14In TTB SMS Pty Ltd v Reading,[11] Tate and T Forrest JJA, emphasised the essential and well established principles to which consideration is to be given in a serious injury application in a pain and suffering case, and which are:
(a) serious injury means permanent serious impairment or loss of a body function;[12]
(b) an impairment shall not be held to be serious unless the pain and suffering consequence is, when judged by comparison with other cases in the range of possible impairments or losses of a body function, fairly described as being more than significant or marked, and as being at least very considerable;[13]
(c) in assessing the seriousness of the claimed impairment consequences, a Court is required to consider both the effects of the impairment, and those aspects of the affected body function which remain unaffected.[14]
[11] [2020] VSCA 203.
[12] Section 325 of the Act.
[13]Section 325 of the Act. This formulation picked up the language in Humphries, which concerned similar provisions in the Transport Accident Act 1986.
[14]Dwyerv Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 (“Dwyer”), [27] per Ashley JA; Stijepic v One Force Group Australia Pty Ltd [2009] VSCA 181, [44] per Ashley JA and Beach AJA; Tatiara Wheat Co Pty Ltd v Kelso [2010] VSCA 12, [77] per Ross AJA, quoting Dwyer [2008] VSCA 260, [27]).
15When a plaintiff asserts he has suffered a serious injury also by reference to a loss of earning capacity, the additional threshold she or he must establish at the date of the decision is that:
(a) he or she has sustained a loss of earning capacity of 40 per cent or more; and
(b) he or she will, after the date of the decision, continue permanently to have a loss of earning capacity which produces a financial loss of 40 per cent or more.
The Documentary Evidence
16The plaintiff relied on the following evidence:
(a) Two affidavits of the plaintiff affirmed 24 August 2023 and 20 May 2024;[15]
(b) Radiology comprising:
(i)CT Scan of the lumbosacral spine dated 18 February 2021;[16]
(ii)MRI of the lumbar spine dated 16 March 2021;[17]
(iii)X-Ray of the chest and lumbar spine dated 10 August 2021;[18]
(iv)MRI of the lumbar spine dated 29 March 2022;[19]
(v)CT scan of the lumbosacral spine dated 31 March 2022;[20]
(vi)MRI of the cervical spine and MRI of the lumbar spine dated 9 January 2023;[21] and
(vii)Ultrasound of the right shoulder dated 1 June 2023.[22]
[15]Exhibit P1, Plaintiff Court Book (“PCB”) 6-19.
[16] Exhibit P2, PCB 26-27.
[17] Exhibit P2, PCB 28-29.
[18] Exhibit P2, PCB 30.
[19] Exhibit P2, PCB 31.
[20] Exhibit P2, PCB 32-33.
[21] Exhibit P2, PCB 34-35.
[22]Exhibit P2, PCB 36.
(c) Two reports of Dr Suren Haripersad (general practitioner) dated 27 January 2024 and 4 July 2024;[23]
(d) Two reports of Dr Ali Kain Mehr (rehabilitation medicine and neurophysiology) dated 20 January 2024 and 18 July 2024;[24]
(e) Report of Ms Shruti Gupta (psychologist) dated 4 February 2024;[25]
(f) Report of Ms Didah Garcia (psychologist) dated 5 July 2024;[26]
(g) Three reports of Professor Richard Bittar (consultant neurosurgeon) dated 1 February 2022, 12 February 2024 and 2 April 2024;[27]
(h) Report of Dr David Weissman (consultant psychiatrist) dated 2 February 2024;[28]
(i) Report of Dr Richard Sullivan (interventional pain specialist and specialist anaesthetist) dated 9 May 2024;[29]
(j) Report of Dr Joseph Slesenger (specialist occupational physician) dated 11 June 2024;[30]
(k) Summary of Gross Payments;[31] and
(l) Letter of Dr Naveen Thomas (psychiatrist) to Dr Haripersad dated 24 July 2024.[32]
[23]Exhibit P3, PCB 37-40.
[24]Exhibit P4, PCB 41-48.
[25]Exhibit P5, PCB 49-51.
[26]Exhibit P6, PCB 52-60.
[27]Exhibit P7, PCB 63-75.
[28]Exhibit P8, PCB 76-90.
[29]Exhibit P9, PCB 91-98.
[30]Exhibit P10, PCB 99-116.
[31]Exhibit P11, PCB 183.
[32]Exhibit P12, PCB 184-185.
17The defendant relied on the following evidence;
(a) Surveillance videos taken on 20 November 2023 and 13 December 2023;[33]
(b) Report of Mr Barclay Reid (general surgeon) dated 12 September 2022;[34]
(c) Report of Professor Bruce Singh (psychiatrist) dated 19 April 2023;[35]
(d) Report of Dr Clayton Thomas (consultant in rehabilitation and pain medicine) dated 11 May 2023;[36]
(e) Report of Dr Richard Prytula (psychiatrist) dated 28 June 2023;[37]
(f) Report of Dr Ameya Kamat (consultant neurosurgeon) dated 29 November 2023;[38]
(g) Report of Dr Gregory White (consultant psychiatrist) dated 19 January 2024;[39]
(h) Vocational Assessment Report dated 8 February 2023;[40] and
(i) Report of Dr Damien Daniel (specialist rehabilitation physician) dated 16 February 2023.[41]
[33]Exhibit D1.
[34]Exhibit D2, Defendant Court Book (“DCB”) 5-12.
[35]Exhibit D3, DCB 13-21.
[36]Exhibit D4, DCB 22-27.
[37]Exhibit D5, DCB 28-37.
[38]Exhibit D6, DCB 38-44.
[39]Exhibit D7, DCB 45-59.
[40]Exhibit D8, DCB 60-86.
[41]Exhibit D9, DCB 87-88.
The Claim Made Under Paragraph (a)
18If I am satisfied a substantial organic basis exists for the pain and suffering consequences relied on by the plaintiff, by which I mean, a substantial and organic basis occasioned by the compensable injury, and if the same satisfies the statutory test, then the plaintiff will be entitled to succeed and the injury claimed under paragraph (a) is able to stand alone and independently of any psychological contributions to it. In Noori v Topaz Fine Foods Pty Ltd[42] the Court of Appeal in stated:
With great respect, no question of disentanglement arises under paragraph (c) of the definition of serious injury. As the decisions of this Court make clear, ‘disentanglement’ is a task which arises – if at all – only in relation to paragraph (a) of the definition. That is, where the application is based on the ‘permanent serious impairment or loss of a body function’, the Court is obliged – by s134AB(h) – to exclude from consideration ‘the psychological or psychiatric consequences of a physical injury’. Where necessary, that will require the ‘disentangling’ of the psychological consequences of the injury from the physical consequences.[43]
[42] [2018] VSCA 323.
[43] Ibid, [5].
19With the directions of the Court of Appeal in mind, it is necessary to separate the consequences of the plaintiff’s back injury suffered in the two incidents on 18 February 2021, from pain and suffering consequences of any psychological injury. If that is capable of being achieved, then the plaintiff’s pathway to success based on a permanent serious impairment or loss of a body function under paragraph (a) is less complicated.
20In determining the outcome of the Application, I have considered all of the evidence relied on by the parties. However, in these reasons, I will only refer to exhibits tendered to the extent that they were the subject of a purposeful submission by a party, and in order to explain my reasons. I have of course, also considered the plaintiff’s cross-examination and re-examination, and the final addresses of counsel. The defendant put into play for consideration the plaintiff’s credit, a good deal of which is based on some short surveillance.
The Plaintiff’s Evidence
Social History
21The plaintiff is 44 years old. In his first affidavit dated 24 August 2023,[44] the plaintiff explained that he is a widowed father to four children. His wife died from cancer around 2019. It is evident, and entirely understandable, that her death has taken an emotional toll on the plaintiff and his children.
[44]Exhibit P1, PCB 6-13.
22In 2010 the plaintiff migrated to Australia by boat from Pakistan, and spent three months in detention on Christmas Island. Thereafter, he spent some time in Shepparton picking fruit, before returning to Melbourne where he found work as a renderer, a skill he said he obtained ‘on-the-job’.
23The plaintiff deposed to speaking fluent Hazaragi but very basic English. He did not have any schooling in Pakistan and he struggles with reading and writing. He was assisted in giving his evidence in Court by an interpreter.
24The plaintiff deposed in his affidavit of 20 May 2024 that he lives with his four children.
25The plaintiff engages in English classes twice per week. He accesses the classes on his phone, and can take breaks as needed to walk and stretch his back. He said his English had improved somewhat, but it remains relatively basic.
The Relevant Employment
26In 2015, the plaintiff commenced employment as a renderer for the defendant working full-time, Monday to Friday with occasional overtime on Saturday. He was paid approximately $1,600 gross per week. He found that he was allocated to residential job sites around Melbourne.
27The plaintiff worked as a renderer on various building sites. He did general rendering tasks, such as preparing and applying finishes to the interior of residential homes. His work also included applying insulation foam, which was delivered in large, heavy panels, and of carrying buckets of render around the job sites. He said the work was physically demanding.
28The plaintiff said that over time whilst working for the defendant, he experienced occasional aches and pain in his lower back due to his work. This was more of a niggle than anything significant, and he did not recall taking any days off work because of it.
The Work Injury
29There are two incidents that occurred on 18 February 2021, when the plaintiff was working at a job site in Greenvale.
30The first incident occurred on what the plaintiff said was a windy day when he was required to assist with unloading foam insulation panels from a delivery truck. The delivery driver was pushing the panels from the back of the truck to the plaintiff on the ground. The plaintiff says that he was required to unload two panels at a time. He deposed that when unloading the panels, the delivery driver pushed two of the panels too hard, they fell, and landed on top of him causing him to fall to the ground. He says he felt immediate pain in his lower back, neck and right shoulder. He described that the pain in his lower back was much worse than any pain he had previously experienced, although he was able to push on to keep working.
31Regarding the second incident, the plaintiff said that later the same day at about lunch time, he was cutting the foam panels on the first floor of the job site, in what he described as a cramped workspace. Whilst doing so, a temporary security fence situated nearby at which the cut panels leaned against, fell on top of him. His pain again increased and he was forced to stop work. He said he experienced particularly bad lower back pain. Later in the day, the plaintiff attended General Practitioner (“GP”) Dr R Yu at the Mandalay Family Clinic in Footscray and was certified unfit for work.
32The plaintiff deposed to taking approximately one week off work, and when he returned, he undertook modified duties and hours for around one month, before he ceased with the defendant mainly due to low back pain.
Post Injury Treatment
33A few days after injury, Dr Yu referred the plaintiff for a CT scan of his low back, which was performed on 19 February 2021. It reported no disc herniation and degenerative changes of the facet joints of moderate severity.[45]
[45] Exhibit P2, PCB 26-27.
34Dr Yu referred the plaintiff for an MRI which occurred on 16 March 2021. It showed degenerative disc disease at a number of levels, along with facet joint arthritis.[46]
[46] Exhibit P2, PCB 28-29.
35The plaintiff commenced attending Dr Suren Haripersad, GP at Sunshine Brimbank Clinic, on whom he continues to attend and who referred him for radiological scans, including:
(a) an x-ray of his chest and lumbar spine on 10 August 2021, which did not report any abnormality.[47]
(b) MRI of his lumbar spine dated 29 March 2022, which was unremarkable and recorded “no cause for back pain/radiculopathy detected. No neural compression demonstrated.”[48]
(c) CT scan of the lumbosacral spine dated 31 March 2022 which found:
1. Mild bilateral facet joint arthropathic changes at L3/4, L4/5 and L5/S1 levels, most prominent at left L3/4 level.
2. Minimal posterior disc bulges at L4/5 and L5/S1, but no significant canal stenosis or neural foraminal narrowing.
3. Compared to CT from 19/2/2021, no significant interval change is identified.[49]
[47] Exhibit P2, PCB 30.
[48] Exhibit P2, PCB 31.
[49] Exhibit P2, PCB 32-33.
(d) MRIs of the cervical and lumbar spines dated 9 January 2023, found no significant abnormalities in the cervical spine. As to the lumbar spine, the scan demonstrated “degenerative disc disease of all the lumbar intervertebral disc [sic] evident by loss of T2 signal. Bilateral L1-2 to L5-S1 facet joint hypertrophy is seen due to mild facet joint arthritis. No evidence of cauda equina compression or nerve root impingement.”[50]
[50]Exhibit P2, PCB 35.
36The plaintiff made a WorkCover claim. It was accepted by notice dated 13 April 2021, following which he received weekly payments and medical expenses.
37By July 2021, the plaintiff said he was continuing to experience pain in his neck, and his upper and lower back, he was referred by Dr Haripersad for physiotherapy at Physio West. He attended a couple of sessions, but he did not feel as if the physiotherapist was supporting him. He also consulted Ashleigh Dean at the Sunshine Physiotherapy & Sports Injury Clinic, for a few sessions of physiotherapy.
38The plaintiff said that by late 2021, his mental health was not good because he was not working and was in daily pain. He deposed to experiencing some psychological difficulties following the death of his wife, but he believed that his mental health had become much worse. He was referred to Ms Garcia, a psychologist for treatment.
39The plaintiff said that by March 2022, he was still experiencing significant lower back pain. He was referred by Dr Haripersad to Mr Vellore, neurosurgeon for review. Mr Vellore did not recommend surgery, but instead he referred the plaintiff to Dr O’Conghaile for pain management and who the plaintiff first saw in May 2022.
40The plaintiff was by now taking Naproxen 250mg twice daily, Diclofenac and Mirtazapine. Further physiotherapy was recommended.
41In August 2022, the plaintiff commenced a pain management program at Advance Healthcare which involved input from Dr Damien Daniel, a rehabilitation specialist, a physiotherapist Mr Dejan Stojanovic and a psychologist, Ms Shruti Gupta.
Current Treatment
42The plaintiff continues to consult his GP at Sunshine Brimbank Clinic around once or twice a month for the provision of certificates of capacity, prescription medications and referrals.
43The plaintiff remains under the care of Dr Mehr, rehabilitation specialist and neurophysiologist, whom he had last seen two weeks prior to swearing his further affidavit of 20 May 2024. At that consultation, the plaintiff said the prospect of further injections and of surgery on his lower back was discussed. He said he was not keen to pursue surgery, out of fear of the result.
44He continues to see Ms Garcia, psychologist, on a weekly or fortnightly basis for the management of his mental health.
45The plaintiff takes Norgesic and he uses Voltaren gel daily, in order to manage his pain. He also takes Allegron for his mental health. The pain medication is mainly for his lower back, and he said it gives him temporary relief but wears off over time.
46He currently attends his physiotherapist at Sunshine Physiotherapy once per week, and he does exercises at home on a daily basis.
Consequences
The First Affidavit
47The plaintiff said his injuries have significantly impacted his life and that he:
(a) experiences constant lower back pain that refers down into his legs, particularly his left leg. He experiences a sharp, shooting leg pain in his left leg. It feels like a tingling and numbness sensation and is an extremely unpleasant sensation.
(b) is never pain free, but that his pain varies in intensity throughout the day depending on his level of activity. He described how the pain can be excruciating, making it difficult for him to perform any physical activity without aggravating his lower back pain.
(c) is now significantly restricted because of his back injury. He struggles with almost all movements, but particularly with bending, twisting or lifting. Sudden movements will bring on pain. Bending at the waist is particularly difficult and he finds alternative ways to lower himself to the ground, such as bending at the knees to avoid aggravating his pain. He sits in a low chair to put shoes and socks on.
(d) is required to rotate postures between sitting, standing and walking. It is difficult for him to get comfortable in the one spot for extended periods of time.
(e) struggles with prolonged periods of sitting. He gets uncomfortable after about 20 minutes being seated in the one position. This has impacted on his ability to drive and he tries to confine trips in the car to under 20 minutes, to avoid an increase in pain symptoms.
48The plaintiff says his walking tolerance has been affected. He estimates that he can walk for about 15-20 minutes before he notices an increase in his back pain. On a good day, and after taking pain medication, he can walk for a longer period of time before it becomes uncomfortable.
49He experiences pain in his upper back and neck. His neck pain can be “very bad” and causes him to struggle to move his neck.[51] He said that rotating his head up and down and side to side is difficult, and when doing so, his pain is worse at the end of the range of motion. He said that his upper back and neck pain can often refer down into his right shoulder and arm. Lifting, reaching, pulling and pushing movements aggravate his neck and right shoulder pain. He finds reaching above shoulder height to be particularly difficult.
[51]Exhibit P2, PCB 11, at paragraph [40].
Psychological Consequences
50The plaintiff deposed to suffering from persistent pain on a daily basis, and as a result he has become moody and depressed and is more irritable.
51He acknowledged having overcome challenges following migrating to Australia, including the death of his wife. He said that despite having previously been optimistic for the future, he now considers his outlook to be bleak. He said that since arriving in Australia he took pride in being able to work and provide for his family. The loss of his capacity to work is a loss of his identity and he worries about what the future holds for him.
52The plaintiff deposed that since the compensable injury, he has entertained suicidal thoughts, although rarely, and he doubted he would carry through on them.
53At night he described his sleep as terrible, because of his physical pain and psychological state. He described lying awake at night and struggling to get to sleep because of the pain in his neck and lower back, and also because he often ruminates about his circumstances and what he has lost in his life. Once asleep, he struggles to stay that way, and often wakes in pain. Most nights he manages a couple of hours sleep, with the result that he is tired and lethargic during the day.
54The plaintiff says that the injury to his lower back, and separately to his neck, has impacted his ability to perform basic day-to-day activities. He struggles to do much to assist around the house, because of the restrictions caused by his back injury. His four adult children with whom he lives, help him around the house. He feels it is unfair that they are required to attend to all of the domestic chores, as they each have their own employment to navigate and manage. He said he regards himself as an invalid, because of his inability to work and because he is useless around the house.
55The plaintiff deposed that he is more socially withdrawn since his injuries. Not only does the pain he experiences make it hard for him to venture out of the house, but he is also embarrassed by his condition and by his inability to work.
Further Affidavit Affirmed 20 May 2024[52]
[52]Exhibit P1, PCB 14-19.
Physical Consequences
56The plaintiff deposed to continuing to suffer from constant pain in his lower back that is severe and travels down into his legs and feet. His pain continues to be aggravated by movement, or from standing and sitting for long periods of time. Bending at the waist remains difficult and he is restricted to lifting only light weights.
57He said he is able to bend but with a limited range of motion, and it becomes very difficult for him to bend past knee level without experiencing a flare up of pain.
58The plaintiff says that since he made his first affidavit, the pain in his lower back and neck has deteriorated. The pain is worse in cold weather.
59Whilst he continues to experience pain in his right shoulder, his lower back and neck give him the most grief. He says it feels as if the pain refers down from his neck into his right shoulder.
60In reference to his lower back pain, the plaintiff deposed that he continues to experience referred pain into his legs and, in particular, his left leg. The pain also refers into his feet, which makes it difficult for him to ambulate at times. He feels particularly unsteady on his feet, and this is worse in the morning and usually improves during the day, and after taking pain medication. The medication allows him to walk without any support, and in fact, he said that walking can be beneficial for pain management.
61He says he finds that some days walking can be quite good for him, and yet on other days, it can aggravate his pain with this state of affairs reflecting the unpredictable and variable nature of his pain.
62The plaintiff said that on occasion he has used a walking stick when leaving his house, and usually when his pain has not improved following taking medication, or when he has forgotten to take his medication, which he said is relatively rare. He said that normally he can leave the house without a walking aid. He tries to avoid using a stick as much as possible, because he is embarrassed about the way he feels he looks when he uses it, and he does not want to become reliant on it.
63The plaintiff could not say how often he uses a walking stick in public, but thought it was only a handful of times. Regardless of the use of a walking stick, he tries to walk at a slow pace so as not to aggravate his lower back pain.
64The plaintiff says he continues to be assisted around the house by his sons due to his pain and restrictions.
Mental Consequences
65The plaintiff deposed that his day to day existence is meaningless because of his injuries. He spends a large part of his days watching television. He goes to the shops on occasions to buy groceries, and so as to get out of the house. A couple of times per week, he will catch the train into the city for a change of scene. He said he becomes bored at home.
66The plaintiff deposed that he continues to experience severe levels of depression, anxiety and stress related to his injury. He believes this is directly related to his persisting lower back injury. He says his mood is low most days and he has very limited motivation to complete even basic tasks. He feels helpless and since being unable to go to work, he has developed an overwhelming sense of hopelessness.
67He says that every day is a struggle psychologically, given the ongoing nature of his pain. He tries to put up with it as best he can, but says it is very difficult.
68He says he is socially withdrawn due to his injury. He is also prone to outbursts of anger and frustration at his situation. He hates this behaviour and it is not an example that he wishes to set for his children.
Loss of Earnings
69The plaintiff has not returned to any form of employment since his injuries. He continues to be certified unfit for employment. He does not believe that he is capable of returning to work due to his pain. His work as a renderer was very physical and he says this is now well beyond his capabilities, given his mental and physical injuries. He described his inability to work as devastating from a financial perspective. He is fearful that his working life has come to an end so early in his life.
70The plaintiff said he would be open to trying any job that could get him back to work, however, his work experience has been exclusively in manual work and his English remains poor. He referred to his attempt to complete an English course and, despite being able to somewhat improve his English, he still struggles to speak the language.
71The plaintiff deposed that at the time of his injury he was capable of earning at least $1,600 gross per week.
The Plaintiff’s Medical Evidence
Dr Suren Haripersad, GP
72The plaintiff tendered two reports of GP Dr Haripersad dated 27 January 2024,[53] and 4 July 2024.[54]
[53] Exhibit P3, PCB 37-38.
[54] Exhibit P3, PCB 39-40.
The First Report
73Dr Haripersad said the plaintiff first attended at Sunshine Brimbank Clinic on 6 March 2021. He was experiencing persistent pain. Further radiology was ordered. MRI showed an “L4/5 disc bulge, with no myelopathy and he was advised re posture as he had not returned to work.”[55] Dr Haripersad continued treating the plaintiff with analgesics and referred him for physiotherapy to Mr David Bergin at Physiowest. The plaintiff did not think he made much progress with his neck/upper back and lower back pains and so he was sent to a different physiotherapist but with a similar outcome.
[55] Exhibit P3, PCB 37.
74The plaintiff was:
(a) reviewed by Mr Vellore who considered surgical intervention was not required;
(b) referred to pain specialist Dr O'Conghaile, who referred him to Advance Healthcare where he was assessed and treated by Dr Daniel (rehabilitation physician), Mr Stojanovic (physiotherapist) and Shruti Gupta (clinical psychologist), but with limited success; and
(c) seen by psychologist Dr Garcia for mental health issues.
75Dr Haripersad diagnosed the plaintiff with chronic neck/back pain. He noted that the plaintiff “always described his pains [sic] as being 10/10 (severe)” and that Advance Healthcare had attempted to engage him in a pain management plan but “all efforts were in vain” and the plaintiff was “solely wanting to find the cause of his pains [sic] with investigations rather than engaging in physiotherapy sessions to assist him to get back to his previous job or some vocation.”[56]
[56] Exhibit P3, PCB 37.
76As to the relationship between the plaintiff’s work and his injury, Dr Haripersad reported:
Mr Bai sustained his neck and back injury on 18/02/2021 whilst unloading cladding (30 kgs) which got [sic] caught in strong winds and moved awkward for him. His lower back injury was also caused by cladding (60 Kgs) being pushed by a fence in strong winds striking his lower back. Based on the examination findings at Advanced [sic] Health Care Mr Bai did not do the range of movements for the fear of causing damage to his spines. All investigations were negative. Yes there was a connection between the injury and his job but the [sic] lack of investigatory evidence does not account for the severity of pain and lack of mobility.[57]
[57]Ibid.
77Dr Haripersad’s writing is not entirely comprehensible when he said that based on the “lack of investigatory evidence of severe injury” the plaintiff’s condition would have improved if he had engaged with Advance Healthcare’s pain management plan.[58] He said that he could not recommend any permanent work restrictions for the plaintiff it seems because, if the plaintiff had engaged in physiotherapy, hydrotherapy, and a gym program, they would have benefitted his mobility and pain.
[58]Ibid.
78As to the plaintiff’s psychiatric condition, he considered that his injuries have contributed to his mental health, but “not solely” as his wife’s death and family dynamics have contributed significantly to his mental health.[59]
[59]Exhibit P3, PCB 38.
79He did not assess the plaintiff’s mental health as significant enough to affect his overall functioning and activities of daily living.
The Second Report
80In his report dated 4 July 2024, Dr Haripersad noted that he had been seeing the plaintiff on an almost monthly basis for his back pain.[60]
[60]Exhibit P3, PCB 39-40.
81He had been prescribed Tapentadol IR (when required), Allegron for his neuropathic back pain, and was still seeing Ms Garcia (clinical psychologist) and the pain specialist.
82Addressing the plaintiff’s psychiatric condition, Dr Haripersad reported that the plaintiff “presented with features of Adjustment Disorder with Depressed Mood form his chronic pain following his back injury. His grieving from his wife's death and an unsupportive family has aggravated his mental health.”[61]
[61] Exhibit P3, PCB 39.
83He considered that the plaintiff’s injuries had contributed to his psychiatric condition, but there were other contributing factors. He said that the plaintiff’s mental health had contributed to his incapacity for work.
84He thought the plaintiff’s prognosis was guarded, given the chronicity of his symptoms, and he recommended review by a psychiatrist and a pain specialist.
Dr Ali Kian Mehr, Rehabilitation Specialist and Neurophysiologist
85Dr Mehr provided two medico legal reports to the plaintiff’s solicitor dated 20 January 2024 and 18 July 2024.[62]
[62]Exhibit P4, PCB 41-48.
The First Report
86Dr Mehr wrote that that the plaintiff experienced his worst pain in his lower back, particularly in the mid lumbar region, the midline and the sides. He described his pain as “shooting in nature” with an average intensity of between 8-9/10.[63] He said the pain can be aggravated by movements, standing or sitting for a long period of time. His sitting tolerance depended on the surface, but could be between 10 to 30 minutes. His driving tolerance was 15 minutes and his walking tolerance was 10 minutes. He could lift from the ground level, but he could lift from the waist level up to 2-3 kg and he could carry 2-3 kg for a short period of time. He could not bend or twist.
[63]Exhibit P4, PCB 41.
87The plaintiff complained of constant right shoulder pain, that was annoying at night, and of a restricted range of motion. He described the intensity of the pain as around 8/10, and that as a result he was restricted with the use of his right arm. He also reported suffering from neck pain, although the intensity was less, his range of motion was still restrictive and bilateral foot pain, with his left foot being worse than his right at that time.
88On examination, Dr Mehr found that the plaintiff’s:
(a) range of motion of his cervical spine was limited especially in extension, and it was tender in the midline and paraspinal.
(b) right shoulder range of motion was restricted: abduction was restricted to 70 degrees, and external rotation was restricted to 30 degrees. Flexion and extension were also slightly restricted. He found that provocative test and impingement test was positive, and neurologic examination of the upper limb did not show any major neurologic deficit.
(c) gait was antalgic because of his left foot pain. He could bend to 40 degrees. His extension was restricted and the quadrant test was positive (more on the left side compared to the right side) He could not toe stand. He could not heel stand, due to foot pain. Neurologic examination of the lower limb did not show major neurologic deficit. There was a tenderness in the forefoot in the intermetatarsal area.
89Dr Mehr thought that the plaintiff presented with facet joint arthropathy at the lumbar spine, which could be treated by medial branch block and radiofrequency. However, he noted that the plaintiff was not keen on interventional pain management and, therefore, these did not occur. As to the right shoulder, he thought the plaintiff needed intensive physiotherapy and hydrodilatation with suprascapular nerve block and pulsed radiofrequency neurotomy but similarly, the plaintiff was not keen on interventional pain management.
90Dr Mehr offered a diagnosis of:
· Chronic lumbar spine pain, by way of aggravation of lumbar spondylosis. The source of the pain being mostly facetogenic;
· Chronic cervical spine pain with less intensity, by way of an aggravation of cervical spondylosis; and
· Right shoulder pain, being adhesive capsulitis that warranted intensive treatment to prevent it progressing.
91Dr Mehr recommended that the plaintiff continue to see his GP, pain management specialist and physiotherapist regularly. He also recommended psychological management such as seeing a psychologist and psychiatrist.
92Dr Mehr considered that all of the plaintiff’s conditions were related to his work injury. He added that the plaintiff’s depression could “be a result of his pre-existing loss due to loss of function and being in chronic pain and insomnia.”[64]
[64] Exhibit P4, PCB 43.
93Dr Mehr thought that the plaintiff’s prognosis for his chronic pain condition was poor, and that the prospect of him returning to pre injury work was also poor, given that he lacks the psychical capacity to perform the role. He otherwise considered that the prospect of the plaintiff returning to an alternative job was guarded, because of his physical limitations, lack of English and work experience. Therefore, Dr Mehr did not consider that the plaintiff had capacity for any type of work and he did not think this would change in the foreseeable future.
The Second Report
94Prior to providing this report, Dr Mehr was provided with video surveillance of the plaintiff, and two further affidavits of his made 24 August 2023 and 20 May 2024. As to the additional material, Dr Mehr wrote:
The video surveillance is a clip which is 12 minutes long. This includes some scenes that Mr Bai sits for a short period of time in one place and then walks for a few minutes and then gets into his car and drives. He also carries a small bag of probably 2 or 3 kg with him when he is going to his car for a short period of time.
Also in this video, we can see in some stages his gait becomes antalgic, especially when he walks a bit further. Also whenever he stands in one point, he leans on a wall or on a pole to be able to manage his pain.
During this affidavit of 24 August 2023, he mentioned that he has some limitations with movements and also walking tolerance and sitting tolerance which does not vary with what we see in the clip. Also, the movement that we see in the clip does not exceed what he mentioned in his affidavit.
Also, I noted the affidavit on 20 May 2024 and that affidavit does not show any evidence of controversy between what we can see in the clip and what it was said.
Also, the clip completely matches with what he told me during my assessment.[65]
[65]Exhibit P4, PCB 47.
95Dr Mehr did not consider that updated material showed anything controversial, and he thought it aligned with the plaintiff’s account given during his assessment. He remained of the opinion that the plaintiff had no capacity for employment, and which was unlikely to change.
96Dr Mehr outlined the treatment he had given the plaintiff since his initial assessment in January 2024:
(a) on review on 13 March 2024, Dr Mehr wrote that the plaintiff’s psychological status was “not very good. He was going to have a Court hearing on 1 August 2024.”[66] A further MRI scan of 24 January 2024 had “demonstrated no motor neuroma.”[67] The plaintiff had bursitis in his foot and significant stomach pain, a side effect of long term medication use, that had led to him attending Hospital. He increased the plaintiff’s dose of Allegron to 25 mg to improve his pain and sleep.
(b) Dr Mehr further reviewed the plaintiff on 17 April 2024. He wrote that “the plaintiff’s psychological state was significantly affected.” The plaintiff’s sleep was broken, despite him taking Allegron 25 mg, and so he increased his dose to 50 mg. He also commenced the plaintiff on two Norgesic tablets twice daily got pain, and advised him to stop taking Palexia. The plaintiff again reported foot pain and Dr Mehr noted that an MRI demonstrated significant osteoarthritis and stress-based synovitis, which he considered accounted for the plaintiff’s pain.
(c) As of 14 June 2024, Dr Mehr considered that the plaintiff’s condition was unchanged and increased his prescription of Norgesic to two tables four times a day.
[66] Exhibit P4, PCB 48.
[67] Ibid.
Ms Shruti Gupta, Psychologist
97In a report dated 4 February 2024, Ms Gupta outlined the psychological treatment she had provided to the plaintiff as part of the multi-disciplinary pain management program he completed with Advance Healthcare in August 2022.
98She provisionally diagnosed the plaintiff with an adjustment disorder with mixed anxiety and depressed mood, in the context of his injury and a persistent pain condition. She noted that from a pain perspective, he presented with “limited self-efficacy related to his pain and high levels of pain catastrophising tendencies.”[68]
[68]Exhibit P5, PCB 49.
99Ms Gupta wrote that the plaintiff’s levels of depression, anxiety and stress were extremely severe, and impacted his general functioning. She thought that with ongoing treatment by way of psychiatric and psychological counselling, he should be able to gradually return to work in the future.
100She considered that the plaintiff’s psychological presentation appeared predominantly related to his work injury and persistent pain condition, noting that the plaintiff did not report any past history or a mental health condition when he was assessed for pain management.
Ms Didah Garcia, Psychologist
101The plaintiff’s treating psychologist Ms Garcia provided a report to the plaintiff’s solicitors dated 5 July 2024.[69] She explained that she first saw the plaintiff on 13 August 2021 on referral from Dr Haripersad. He had attended once fortnightly for psychological management until September 2022. He attended once for treatment in August 2023 before being referred by his GP for further treatment in January 2024, and at the date of her report, he had resumed attending on her fortnightly for treatment.
[69]Exhibit P6, PCB 52-60.
102Ms Garcia obtained a family background from the plaintiff as follows:
(a) he was widowed in 2019 and has 4 children aged between 20 and 24 years old. “He developed a strained relationship with his children after his wife’s passing. He and his children recently parted ways and moved in different accommodations. He lived in at a friend’s house briefly but due to financial reasons moved in with his children.”[70]
(b) he was born in Afghanistan and grew up mostly living in Pakistan. His father was a farmer whilst his mother was a stay-at-home mother. He is the middle child. His older brother was killed by another ethnic group during the Afghanistan war. His younger sister and her family moved from Afghanistan to Pakistan for security reasons in October 2021.
(c) his mother passed away due to poor health when he was young. He went to live with his aunt, he moved him to Pakistan when he was around six years old. His father remarried and had five children with his second wife. His father passed away when he was in his 20s living in Pakistan. The rest of his family (except for his sister) live in Afghanistan.
(d) he is Azara, and reported that 62% of his community were killed by the Taliban. He said that more than 3000 members of his community had been killed by ISIS.
(e) his wife was Afghani. They met and married in Pakistan in 1999. They had three sons and one daughter. The elder son works and the other children are either working causally or studying. His wife passed away from lung cancer in November 2019.
(f) he came to Australia by boat as a refugee in 2010. He stayed at Christmas Island for three months, before obtaining permanent residency in 2010. His wife and four children arrived in Australia in 2015.
[70] Exhibit P6, PCB 52.
103Ms Garcia considered that the plaintiff presented with major depressive disorder and adjustment disorder with anxiety.
104He reported symptoms characterised by depressed mood, diminished interest in daily activities, significant loss of energy, feeling less confident, that life is not worth living, psychomotor agitation, insomnia and reduced appetite due to worrying. He denied any current suicidal ideation.
105Ms Garcia regarded the plaintiff’s symptoms to be indicative of anxiety (feeling scared without good reason); experiencing trembling (in his hands and other parts of body); worrying about situations in which he might panic and make a fool of himself; and constantly feeling close to panic.
106She believed that his mental condition was secondary to his work-related physical injuries. She thought that the work injury had significantly affected his daily life. He had been certified unfit for work and the inability to return to any form of employment had caused him considerable financial hardship, accommodation issues, a strained relationship with his children and other health issues mainly from medication side effects.
107As to the plaintiff’s capacity for employment, she noted that he lacks any formal education, does not read or write in English and his ability to speak in English is limited. His work experience was in manual labour, including shoe making, fruit picking and rendering. She considered that these factors, in addition to his poor mental health, made it unlikely that he could perform reliably and consistently in a job.
108She said that the plaintiff had no work capacity, based on his psychiatric condition alone.
109Ms Garcia reported that the plaintiff’s social domestic and recreational activities had been significantly restricted as a result of his condition. She said “his depressed and anxious mood make it difficult for him to go out with his friends. He has become socially withdrawn and had loss interest in the things that he used to enjoy. He stopped seeing his friends for meals, barbecues and conversations in each other’s homes. He used to organize and play soccer with his sons and friends every 1-2 weekends prior to the work injury. However, predominantly due to his physical injury, he lost interest in soccer. His low mood has caused a strain in his relationship with his family.”[71]
[71] Exhibit P6, PCB 59.
110The plaintiff reported to Ms Garcia that his life had been “broken”.[72] He could not lift more than two or three kgs, so he does several grocery shops a week. He could no longer mow the lawn and relies on his sons to do it. His pain increased in cold weather, and stopped him from going out.
[72] Ibid.
111Ms Garcia considered that the plaintiff was “likely to remain predisposed to depression as long as his pain persists and as long as he remains disabled by pain and is unable to rehabilitate himself back into the workforce. His psychological condition, in particular his depressed and anxious mood as well as poor sleep, lack of concentration, low self-confidence and lack of energy are likely to affect his capacity to maintain regular employment or to engage in his pre-injury employment, although his capacity will be largely determined by his physical condition.”[73] She noted as well that the plaintiff’s social stressors of “strained family relationships, insecure housing accommodation and financial hardships aggravate his mental health condition.”[74]
[73] Exhibit P6, PCB 60.
[74]Ibid.
Professor Richard Bittar, Neurosurgeon
112Professor Bittar undertook an independent medical assessment of the plaintiff with the assistance of an interpreter, and he provided three reports dated 1 February 2022,[75] 12 February 2024,[76] and 2 April 2024.[77]
[75]Exhibit P7, PCB 63-66.
[76]Exhibit P7, PCB 67-73.
[77]Exhibit P7, 74-75.
The First Report
113The plaintiff reported that his current symptoms were constant neck and back pain that was “shooting” in nature and had an average severity of 8-9/10. He described how his pain was “exacerbated by any movements of the relevant part of the spine including bending, twisting, lifting more than light objects as well as sitting for more than 30-60 minutes (depending upon the type of chair or whether he is sitting on the ground). Repetitive arm movements aggravate his neck pain, and repetitive or forceful pushing or pulling aggravates his neck and lower back pain. He states that his symptoms are progressively worsening.”[78]
[78] Exhibit P7, PCB 63.
114Professor Bittar recited that an MRI of the lumbar spine on 16 March 2021, demonstrated facet joint arthropathy throughout the entire lumbar spine bilaterally; disc bulging at L4/5; and no neural compression.
115Professor Bittar said:
On examination, he walked with a slow but nonantalgic gait. He had moderate restriction of lumbar spine flexion and severe restriction of lumbar spine extension. He had mild restriction of cervical spine flexion and moderate restriction of cervical spine extension.
He had bilateral tenderness over the cervicothoracic junction without muscle spasm. There was no tenderness or muscle spasm in the thoracic spine. He had bilateral lumbar paravertebral muscle spasm and tenderness.
There was no evidence of muscle wasting and tone was normal in the upper and lower limbs.
Neurological examination did not reveal any evidence of radiculopathy or myelopathy.
There was no abnormal illness behaviour.[79]
[79]Exhibit P7, PCB 65.
116Professor Bittar diagnosed an aggravation of lumbar spondylosis with lower back pain, and a nonspecific cervical spine injury. He considered that both conditions were work related. He recommended further radiological investigations and review from a pain specialist.
117He considered the plaintiff was incapacitated for his pre injury rendering duties, and otherwise noted that because of factors including his age, education, work experience and limited English, he did not have any realistic capacity for suitable employment.
The Second Report
118On review of the plaintiff on 12 February 2024, Professor Bittar reported that overall his symptoms had continued to deteriorate. He complained of:
1.Lower back pain. He reports constant lower back pain which is generally sharp in character. It radiates bilaterally across the lumbar region, worse on the right-hand side. It has an average severity of 7-8/10. His back pain is exacerbated by bending, twisting, lifting more than around 4 kg, forceful or repetitive pushing or pulling, coughing, sneezing or straining, sitting for more than 30 minutes, standing for more than 5 minutes or walking more than around 1 km on flat ground. There are no reliable relieving factors. His lower back pain radiates diffusely into both legs, with his left leg being more severely affected than his right. His leg pain is less severe than his lower back pain.
2.Midback and neck pain. He experiences constant sharp midback pain, which has an average severity of around 9/10. This is exacerbated by bending, twisting, lifting more than around 4 kg as well as forceful or repetitive pushing or pulling and coughing, sneezing or straining. His midback pain tends to flare up with his lower back pain.
He also reports sharp pain involving his entire neck, with his neck pain having an average severity of 8/10. His neck pain is exacerbated by sudden or repetitive neck movements, maintaining his neck in a fixed position for prolonged periods, using computer, driving or sitting in one position for more than 30 minutes, or lifting more than light objects. There are no reliable relieving factors. His neck pain radiates down his right arm into his hand, mainly affecting his middle and ring fingers.[80]
[80] Exhibit P7, PCB 68.
119Professor Bittar wrote that:
(a) he continued to walk with the slow and non-antalgic gait;
(b) he had moderate restriction of cervical spine extension;
(c) he had moderate restriction of lumbar spine flexion with severe restriction of lumbar spine extension;
(d) he had bilateral tenderness over the mid and lower cervical spine, midthoracic spine and throughout the entire lumbar paravertebral musculature;
(e) he had bilateral lumbar paravertebral muscle spasm;
(f) he does not have any muscle wasting;
(g) upper and lower limb tone remain normal;
(h) straight leg raising was normal bilaterally;
(i) neurological examination of his upper and lower limbs did not reveal any evidence of radiculopathy and myelopathy; and
(j) there was no abnormal wellness behaviour.
120Professor Bittar affirmed his diagnosis of aggravation of lumbar spondylosis with lower back pain and referred leg pain, and aggravation of cervical spondylosis. He thought that the facet joints were likely significant pain generators but that other structures including the discs could not be excluded.
121He considered that the plaintiff should consider an interventional pain management approach, and should otherwise continue with his current treatment regime of :
(a) daily medications, including: Norgesic, nortriptyline, Palexia, and Voltaren.
(b) weekly physiotherapy; and
(c) weekly psychological review.
122He believed that the plaintiff remained incapacitated for employment and that as a result of his spine impairment, he was significantly inhibited from:
· repetitive pushing and pulling;
· repetitive carrying or lifting; repetitive or sustained twisting or bending of his back or neck;
· overhead activities;
· use of heavy tools;
· prolonged sitting, standing or walking; and
· craning of the neck.
123Professor Bittar recommended permanent work restrictions for the plaintiff in line with his functional limitations. He did not consider that there was any employment for which the plaintiff would be suited, in light of his functional limitations and also his education, training skills (including English language and computer skills) and work experience.
124He referred to the vocational assessment report dated 8 February 2023,[81] which identified job roles that had been suggested the plaintiff may be suited for of: meter reader; courier deliverer; taxi driving; delivery driver and product assembler. Professor Bittar did not consider that the plaintiff had capacity to undertake any of the roles identified reliably and consistently.
[81]Exhibit D8, DCB 60-86.
125Professor Bittar referred to a transferable skills analysis report dated 30 June 2021, which identified that the plaintiff may be suited to employment as a renderer, delivery driver, production worker, product assembler and courier. Professor Bittar similarly considered that the plaintiff did not have capacity to perform any of those roles reliably or consistently.
126Professor Bittar thought that the plaintiff’s spine impairment and subsequent incapacity were likely to continue for the foreseeable future.
The Third Report
127Professor Bittar was provided with the video surveillance of the plaintiff. In his report dated 2 April 2024, he said of the surveillance:
The video surveillance footage of Juma Bai demonstrates Mr Bai undertaking a variety of sedentary or very light physical activities. At the start of the video, he appeared to be in a degree of pain as he sat for a short period. For the remainder of the video, he was seen walking, generally with the use of a walking stick, which he alternated from one arm to the other, as well as getting in and out of a motor vehicle on several occasions. He was seen carrying what appeared to be small parcels or bags often to a motor vehicle.
There was no physical activity seen in the video surveillance footage that would cause me to alter the opinions expressed in my previous report.[82]
[82]Exhibit P7, PCB 74.
Dr David Weissman, Psychiatrist
128Dr Weissman examined the plaintiff via zoom, and provided a medico legal report to his solicitors dated 2 February 2024.[83]
[83]Exhibit P8, PCB 76-90.
129He diagnosed:
1.Work-related Chronic Adjustment Disorder with depressed and anxious mood, of moderate intensity, part employment related.
2.Unrelated, unresolved grief reaction and persistent bereavement process.[84]
[84] Exhibit P8, PCB 88.
130He said he thought that the plaintiff required a “solid dose of antidepressant medication, in part to treat his work-related psychiatric condition/mental injury. He may additionally benefit from a referral to a psychiatrist for expert treatment.”[85]
[85] Ibid.
131As to work capacity, Dr Weissman considered that “on purely psychiatric grounds alone, perhaps somewhat artificially and hypothetically, he possibly/probably has a partial capacity for so-called suitable duties.”[86] However, he noted that the plaintiff reported he could not read or write in his native language or English, and was computer illiterate. He has a driver’s license, however had not worked for three years and “seemed to have no transferable skills outside of shoe making and the heavy work of rendering.”[87]
[86]Ibid.
[87]Exhibit P8, PCB 89.
132Dr Weissman wrote that “purely on psychiatric grounds alone from a narrow, hypothetical and artificial perspective, he may have a partial capacity for so-called suitable duties. However, when one considers his situation and circumstances as a whole in the real world, his chances of being able to obtain and then sustain so-called suitable paid employment are slim, if not remote.”[88]
[88] Ibid.
133He considered that from a cognitive or psychiatric capacity, the plaintiff did not have the capacity to perform the suitable employment options mentioned in the transferrable skills and analysis report of 30 June 2021, and the vocational assessment report dated 8 February 2023.
134Addressing his psychiatric prognosis, Dr Weissman thought that it “would have been a little uncertain and guarded and only fair because he was already a widower following his wife’s tragic death in 2019. However, he was still working full-time as a renderer, Monday to Friday and some Saturdays, for his pre-injury employer from 2015 all the way up until his work injury on 18.02.21. His overall psychiatric prognosis for the future is now very uncertain and guarded and likely to be quite poor, negative and unfavourable. This has a moderate contribution from his work-related injury and in turn his work-related chronic adjustment disorder.”[89]
[89] Ibid.
Dr Richard Sullivan, Interventional Pain Specialist and Specialist Anaesthetist
135Dr Sullivan provided a medico legal report to the plaintiff’s solicitors dated 9 May 2024.[90]
[90]Exhibit P9, PCB 91-98.
136Under ‘Presenting Symptoms’ Dr Sullivan recorded:
1. Lower back pain. This pain is constant and has characteristics including sharp, shooting and aching. At rest, he rates such pain around 6/10 on numerical rating scale with exacerbations up to 8 or more depending on activities. He reports activities that include bending through the waist, twisting, lifting, pushing, pulling, and straining can aggravate, and he obtains relief by resting, stretching, engaging in gentle exercise, utilising analgesic medications. He has functional restrictions relating to his lower back pain, including a sitting tolerance of some 20 to 30 minutes, a standing tolerance of some 10 to 15 minutes. He tends to lean against objects to alleviate pain when standing stationary. He can walk for around 500 meters to 1 km without provoking pain and he sometimes utilises a stick to assist with walking. He can drive for approximately 20 minutes, and he can load through his axial spine with around 5 kg without significant aggravation of his symptoms.
2. Posterior cervical pain. This pain is in the mid and lower cervical region. It extends bilaterally into the scapular area and then wraps around affecting the right shoulder. This pain has aching, burning, and sharp characteristics. It is constant. At rest, it rates around 5/10 on numerical rating scale, but activities can exacerbate it to 8 or more. Holding his neck in fixed positions for extended periods exceeding his comfortable range of cervical movement utilising his upper limbs above chest height, such as reaching, especially on the right side, and lifting and loading with objects or weights in excess of a few kilograms in either upper limb can provoke the posterior cervical pain. He also finds that he is limited if he sits at a computer or utilises a tablet, he finds pain will be exacerbated after around 15 to 20 minutes. Such pain is alleviated by resting, gentle stretching, gentle exercise, and utilising analgesic medications.
3. Right-sided shoulder pain. This has an aching and stabbing quality. It affects predominantly the anterior aspect of the shoulder that can extend towards the lateral deltoids and as far as the biceps. It is provoked principally by trying to lift his right upper limb above chest height, and also through forcible activities of the right upper limb, such as pushing, pulling, or lifting in excess of around 5 kg, and this pain is relieved by resting and taking analgesic medications.[91]
[91]Exhibit P9, PCB 92.
137The plaintiff reported an ability to attend to his own washing, showering, and dressing although, he explained that he tended to adopt a slow and modified approach to such activities. He said that he was entirely reliant on his children to complete domestic chores, including cooking, cleaning, washing, and the like. He found that even modest domestic chores readily aggravate his symptoms and will only undertake very minor tasks, such as small amounts of shopping.
138He reported that his sitting tolerance was limited to 20 to 30 minutes, standing to 10 to 15 minutes, walking to around 500 metres to a kilometre, driving to around 20 minutes, and lifting and carrying around 3 to 5 kg. He also tended to favour his left upper limb over the right side.
139Prior to his work injuries, the plaintiff described himself as very family focused. He engaged in social and recreational activities with his wife and children, including family outings and other activities within the community. He said that he now has a substantively reduced capacity and enjoyment for such activities.
140On examination, Dr Sullvan wrote:
He was able to don and doff clothing without assistance. He had restricted cervical range of movements. There was modest restriction of cervical flexion and rotation, though cervical extension was substantively reduced to no more than 20 degrees. He had mildly increased tone around the cervical paravertebral musculature and there was pronounced allodynia to modest palpation of the paravertebral cervical musculature. Your client had adequate range of movements of the left shoulder girdle and substantively reduced range of movement of the right shoulder girdle, which was suggestive of a degree of capsulitis. He was able to demonstrate no more than 90 degrees of right shoulder flexion, 90 degrees of right shoulder abduction, 30 degrees of internal rotation and no more than 20 degrees of external rotation. Palpation over the shoulder girdle revealed sensitivity and pain was readily provoked palpating around the acromioclavicular joints and lateral deltoid. Deep tendon reflexes of the upper limbs were brisk and symmetrical and grip strength was preserved bilaterally. The lumbar spine looked innocuous on inspection though on palpation there was evidence of increased tone of the paravertebral lumbar musculature and modest palpation of these structures produced an allodynic response bilaterally. There were restrictions of lumbar range of movement and he could demonstrate no more than 30 degrees of flexion, no more than 10 degrees of extension, and no more than 20 degrees each of left and right lateral flexion. He reported that extension was the more pain provoking of his movements consistent with his noted facet joint pathology on imaging. He was able to demonstrate a heel stance and toe stance though he had to steady himself against the back of the chair to do this successfully. Deep tendon reflexes in his lower limbs were brisk and symmetrical. There was no evident muscular wasting or fasciculation in the lower limbs nor upper limbs.[92]
[92]Exhibit P9, PCB 94.
141Dr Sullivan said that the incident at work had precipitated an aggravation of lumbar spondylosis and the plaintiff had likely suffered some soft tissue injuries to his cervical region, upper back and right shoulder. He considered that the plaintiff had subsequently developed posttraumatic chronic pain, affecting his lower and upper back, neck and right shoulder. He thought that the plaintiff had ongoing significant functional limitations as a result, and that his prognosis was poor.
142In answer to whether the plaintiff’s condition had organic features, Dr Sullivan wrote that objective signs of the plaintiff's condition included “movement restrictions on clinical examination and increased/exaggerated response to sensory stimuli (allodynic response to digital palpation in the cervical and lumbar regions). In the radiological reports, there is evidence of lumbar spondylosis (lumbar disc pathology and lumbar facet joint pathology).”[93]
[93] Exhibit P9, PCB 95.
143Addressing the plaintiff’s spine alone, Dr Sullivan considered that he was restricted with repetitive pushing, pulling, carrying, and lifting, and essentially any sort of forcible activities with his upper limbs incidentally lifting or carrying objects or weights of more than 3 to 5 kg. He also noted that the plaintiff’s pain was provoked from using his right upper limb. He was also likely to experience provocation of his back pain with twisting and bending activities, provocation of his neck pain with overhead activities, and provocation of his neck pain with typing, writing, and use of tools.
144Dr Sullivan thought that the plaintiff had the “capacity to perform at most entirely sedentary work of a part-time nature, avoiding static posturing for longer than around 15 minutes at a time, avoiding any form of meaningful lifting or carrying, and avoiding other manoeuvres that would provoke his underlying pain condition including neck movements, back movements, standing and walking.”[94] Additionally, he considered that the plaintiff’s ongoing need for analgesic medications that adversely affect his focus, function and concentration would need to be accounted for.
[94] Exhibit P9, PCB 96.
145Dr Sullivan wrote that although the plaintiff had a “theoretical capacity to undertake entirely sedentary employment of a part-time nature, he has extremely limited transferable job skills. He has very limited capacity for spoken English and effectively no capacity to read or write in English, and he would face substantive challenges with any form of vocational retraining. As such, his realistic prospects for obtaining stable and settled employment of any nature now into the foreseeable future is, in my opinion, remote at best.”[95]
[95] Ibid.
146Dr Sullivan did not consider that the plaintiff had the capacity to perform any of the job roles identified in the two vocational reports now, or into the future. He wrote that “essentially, as a consequence of his spine impairment, despite hypothetical capacity, the reality is that your client effectively has no current work capacity. It is also my expectation that the situation is unlikely to change in the foreseeable future.”[96]
[96] Exhibit P9, PCB 97.
Dr Joseph Slesenger, Occupational Physician
147Dr Slesenger prepared a medico legal report for the plaintiff’s solicitors dated 11 June 2024.[97]
[97] Exhibit P10, PCB 99-116.
148The plaintiff reported his current physical symptoms to be:
Neck
He has residual neck pain with stiffness and some restriction to the range of neck movements. He has difficulty with head checks, particularly early in the morning. The neck pain is constant and severe. The pain radiates into the right shoulder with associated restriction to his range of shoulder movements and weakness in his right hand. He denied a history of pins and needles/numbness in his right hand.
Lower back
His lower back pain has persisted with radiating pain into the mid-back. The pain is constant, moderate to severe and aggravated by activity, particularly walking, standing and sitting for more than 20 minutes. The pain radiates into the right thigh and he advised of a cramping sensation in the right thigh when sitting for prolonged periods (although I note reference to left sided symptoms in the documentation).[98]
[98]Exhibit P10, PCB 103.
149Based on his review of the clinical records provided to him, and examination of the plaintiff, Dr Slesenger gave a diagnosis of:
· Lumbar spine:
o Soft tissue injury.
o Chronic lower back pain.
· Cervical spine:
o Soft tissue injury.
o Chronic neck pain with radiating features but no confirmed evidence of radiculopathy.[99]
[99] Exhibit P10, PCB 113.
150Dr Slesenger was satisfied that the plaintiff’s impairment had an organic physical basis. He noted the absence of non-organic features on evaluation and the continuation of his symptoms since the injury, as documented in the clinical records. However, Dr Slesenger observed that there was some discrepancy between the plaintiff’s presentation at formal evaluation and the surveillance footage he had been supplied. He wrote that “I have concerns with regard to his use of the walking stick, which does not appear to be consistent with the footage (I note that he did not attend the evaluation with a walking stick). I also note that his limp appeared to be variable and this may be indicative of a functional element to his presentation. However, this is difficult to establish given the temporal dissociation between the footage and the evaluation with myself.[100]
[100]Exhibit P10, PCB 113.
151Dr Slesenger said he was “satisfied” that the plaintiff’s axial impairment was causally linked to his pre-injury job demands in general, as well as the incident on 18 February 2021, although, he noted that there was some uncertainty as to the mechanism of injury.
152He recommended the following functional limitations:
· sitting no greater than 20 minutes;
· avoid repetitive turning and twisting;
· avoid prolonged standing greater than 20 minutes;
· avoid walking greater than 20 minutes;
· avoid lifting greater than 5 kg;
· avoid carrying greater than 5 kg;
· avoid driving for more than 30 minutes;
· avoid repetitive stooping and bending; and
· avoid prolonged static postures.
153Based on the plaintiff’s symptoms, functional limitations, residential location, lack of literacy skills and qualifications, and his poor computer skills, Dr Slesenger did not consider that the plaintiff would be able to return to work in suitable alternative duties on a consistent and reliable basis. He considered that each of the job roles identified in the vocational assessment reports of production worker, product assembler, meter reader, courier/delivery driver and tax driver, were outside of the plaintiff’s capacity limits.
154Dr Slesenger did not anticipate that there would be any significant change to the plaintiff’s spinal condition in the foreseeable future.
Dr Naveen Thomas
155The plaintiff tendered a letter from psychiatrist Dr Thomas to GP Dr Haripersad dated 24 July 2024.[101]
[101] Exhibit P12, PCB 184-185.
156Dr Thomas reported that the plaintiff’s son attended the assessment to assist with translation and had provided “collateral information” to Dr Thomas.[102]
[102] Exhibit P12, PCB 184.
157Dr Thomas noted that the plaintiff did not have a history of mental illness and presented with a history of “depressive syndrome lasting over three years, characterised by low mood, anhedonia, lack of energy, decreased self-esteem, reduced socialisation, decreased confidence, and lack of motivation. These symptoms emerged in the context of significant pain due to workplace injuries—one involving his shoulder and another his back—sustained during his rendering job and while removing forms from a truck.”[103]
[103] Ibid.
158The plaintiff reported suffering from severe pain that disrupted his sleep and exacerbated his depressive symptoms. Dr Thomas wrote “these issues significantly impact his daily life and social interactions. Additionally, he lost his wife to cancer in 2019, which further affected his mental health.”[104]
[104] Ibid.
159Dr Thomas diagnosed:
· moderate depression with somatic symptoms in the context of significant pain and its consequences.
· differential diagnosis of adjustment disorder with depressive reaction; and
· no significant risk issues.
160At the time of assessment by Dr Thomas, the plaintiff was taking Nortriptyline 15 mg at night and standard analgesics. Dr Thomas recommended that Dr Haripersad consider increasing Nortriptyline by 25 mg every two weeks to a maximum of 100 mg at night, based on tolerance, benefits, and side effects.
Defendant’s Medical Evidence
Mr Barclay Reid, General Surgeon
161Mr Reid prepared a report at the defendant’s request dated 16 September 2022 for the purpose of the plaintiff’s accepted impairment benefits claim.[105]
[105]Exhibit D2, DCB 5-12.
162Dr Reid wrote:
An MRI of the lower back done on 16 March 2021 showed facet joint arthropathy throughout the lower back and a disc bulge at L4/5. There was no neural compression. There was degenerative disease at all the discs.
An x-ray of the lumbar spine done on 10 August 2021 showed no abnormalities.
An MRI of the lower back done on 29 March 2022 was reported as being unremarkable and showing no cause for the pain that could be detected.
No x-rays of the neck or scans of the neck have been done…[106]
[106] Exhibit D2, DCB 8.
163Addressing the plaintiff’s neck, Mr Reid diagnosed a “musculoligamentous injury of the back of the neck and the musculature from the neck to the right shoulder. The pain going down the right arm, sometimes as far as the elbow is likely to be due to local muscle injury rather than neurological as it is not accompanied by numbness and tingling. There were no physical signs of ongoing injury and there was no neurological compromise or nonverifiable radicular symptoms. His treating doctors had not thought the neck injury was serious enough to warrant Xrays or CT or MRI scans.”[107]
[107]Exhibit D2, DCB 9.
164Regarding the plaintiff’s lumbar spine, Mr Reid diagnosed “a musculoligamentous injury together with a probable minor disc injury at L4/5, making his previous widespread degenerative disease symptomatic. There was no neurological compromise but there were non-verifiable radicular complaints down the right lower limb.”[108]
[108]Ibid.
Professor Bruce Singh, Psychiatrist
165Professor Singh provided a medico legal report dated 19 April 2023.[109]
[109]Exhibit D3, DCB 13-21.
166He examined the plaintiff via telehealth with the assistance of an interpreter and obtained the following history:
Mr Bai is a 44-year-old man of Hazara ethnicity who had been living in Pakistan for 10 years before he came to Australia with his family. The Hazara are a minority Shiite group of Afghani people who have settled in Pakistan because of persecution in their own country and subsequently in their adopted one. He lived in Quetta where he grew up. He never went to school and was illiterate. He came to Australia in 2010 and his family followed seven years ago, (his wife and four children). He came as a refugee.
…
There is no past medical history.
250Mr Miles submitted that “to really ram home the effectiveness of his complaints,” the plaintiff had decided to take a walking stick to see Mr Kamat.[171] However, his affidavits made no mention of the walking stick. I should be sceptical of his excuses of an oversight in pain medication and of its psychological support for its use.
[171] T 60, L 16-18.
251Mr Miles submitted, that although the opinions of the plaintiff’s doctors who viewed the surveillance footage were not irrelevant, by the same token, they are not determinative.
252Mr Miles submitted that propensity of medical reports advancing the existence of organic issues to explain his pain are difficult to explain, as they refer to functional overlay but with psychiatric issues, and vice versa. Mr Miles submitted that the psychiatric evidence is that it is the plaintiff’s physical problem producing pain.
The Plaintiff’s Physical Injuries
253Mr Miles submitted that Dr Haripersad’s report of 27 January 2024 interpreted the radiology as unimpressive. He said “…the lack of investigatory evidence does not account for the severity of pain and lack of mobility… I am of the opinion due to the lack of investigatory evidence of severe injury Mr Bais' [sic] conditions would have improved if he engaged with management plan set out at Advanced [sic] Health care.”[172]
[172] Exhibit P3, PCB 37.
254Dr Haripersad did not recommend any work restrictions and he considered that the plaintiff’s prognosis was good, if he had engaged with treatment. He said as well that the plaintiff’s mental health had not on its own contributed to incapacity and that it was not significant enough to affect his overall functioning and activities of daily living.[173]
[173]Exhibit P3, PCB 38.
255Mr Bittar referred to the plaintiff describing diffuse pain. The plaintiff was not keen on what he described as only minimally invasive procedures or pain blocks and injections as had been recommended by Dr Mehr. Professor Bittar also recommended that the plaintiff consider an interventional pain management approach but this had been declined by the plaintiff.
256Mr Miles submitted that if the plaintiff’s impairment and pain was of the extent that he would have the Court accept, it is reasonable to conclude that he would have undergone these minimal procedures that might have assisted him.
257Mr Miles referred to Dr Daniel who had been a long term pain management provider to the plaintiff, and who wrote on16 February 2023:
He said today that he was ‘suffering very much’. He says he gets ‘no sleep’. We had the same concerns today as we had from the beginning with Juma. He remains fixated on the thought that if he has pain he must have damage in his spine, both cervical and lumbar. Normal MRIs fail to convince him otherwise. He also has fixed beliefs about hurt equals harm, so he is very reluctant to move. Finally, he feels he needs to be 100% cured before he can return to work. All these beliefs, which we have tried very hard to educate him on, are stopping him from progressing.[174]
[174] Exhibit D9, DCB 87.
258Mr Miles submitted that Dr Mehr, the third pain management treater the plaintiff had seen, commented in his first report dated 20 January 2024, that his antalgic gait was due to left foot pain. Dr Mehr suggested various treatments designed to address the plaintiff’s pain, but the plaintiff did not pursue them due to his stated attitude about interventional pain management. Mr Miles submitted that if the plaintiff was genuine in addressing his pain, he would have pursued these clinical recommendations.
259As to Dr Mehr’s opinion that the surveillance he was shown was not controversial,[175] Mr Miles submitted that his comments are based on his acceptance of the plaintiff’s explanation, that he had not taken his pain medication.
[175] See exhibit P4, PCB 47.
260As to Dr Sullvan’s comments that the plaintiff had some soft tissue injuries to the neck, back and right shoulder and that he had developed “posttraumatic chronic pain,”[176] Mr Miles submitted that this opinion comprised an example of a doctor firstly, accepting the plaintiff’s complaints and, secondly, fashioning a diagnosis to apply to it. Nonetheless, Mr Miles observed that Dr Sullivan considered that the plaintiff had a “theoretical capacity to undertake entirely sedentary employment of a part-time nature”.[177]
[176] Exhibit P9, PCB 94.
[177] Exhibit P9, PCB 69.
261Mr Miles submitted that Dr Slesenger in his report dated 11 June 2024, recorded that the plaintiff “walked with a pronounced left sided limp with reduced weight bearing on the left side.”[178] He offered up a diagnosis of soft tissue injuries to the neck and lower back with associated chronic pain. Mr Miles submitted that the diagnosis also depended on the acceptance of the plaintiff’s complaints by Dr Slesenger and the ascribing a label to them.
[178] Exhibit P10, PCB 106.
262Dr Slesenger was shown the surveillance film. He said that “his limp appeared to be variable and this may be indicative of a functional element to his presentation.”[179] Mr Miles submitted that the defendant’s position is that it was contrived.
[179] Exhibit P10, PCB 113.
263Mr Miles referred to Mr Reid who reviewed the plaintiff at the defendant’s request for an impairment benefits claim, and who reported on 16 September 2022, that the radiology of the plaintiff’s low back was unremarkable.[180] There was no radiology of the plaintiff’s neck but he diagnosed a musculoligamentous injury to the neck and back. He expected a full recovery for the neck and the back; however he thought that the back would take longer to recover.
[180] Exhibit D2, DCB 8.
264Mr Miles addressed the report by Dr Thomas, whom he submitted was a “fairly accurate barometer” of what was really going on in a case.[181] Dr Thomas’ comments in his report dated 11 May 2023 included: “lumbosacral movements about half of normal, although indirect observation improvements were far better” and “axial compression and pelvic rotation were both positive.”[182] Mr Miles submitted that Dr Thomas concluded that “there is a significant nonorganic competent here.”[183]
[181] T 66, L 29-30.
[182] Exhibit D4, DCB 25.
[183] Ibid.
265Mr Miles said it was significant that Dr Thomas considered the plaintiff could return to work in suitable duties on a full time basis, and that the plaintiff was capable of performing all of the roles in the defendant’s vocational report.
266Mr Miles submitted that Mr Kamat in his report of 20 November 2023, found that the radiology did not demonstrate any significant abnormality, other than mild degenerative changes and that the sacroiliac joints were normal. His diagnosis was of an aggravation of cervical and lumbar spondylosis and he believed that there was a psychiatric component to the plaintiff’s presentation.[184]
[184] Exhibit D4, DCB 43.
Psychiatric Injuries
267Mr Miles turned to the plaintiff’s psychiatric records. Dr Weissman in the course of his report of 2 February 2024, considered that the plaintiff “was not a very forthcoming historian”.[185] He noted that there were significant factors in the plaintiff’s presentation, that included the plaintiff blaming himself for his wife’s death as did his children [186]
[185] Exhibit P8, PCB 78.
[186] Exhibit P8, PCB 80.
268He submitted that Dr Weissman made an obvious point about the influence of the passing of the plaintiff’s wife on his condition, for which he was not taking an antidepressant, and arrived at a diagnosis of an adjustment disorder that was partly employment related. He agreed that there were non-organic factors contributing to the plaintiff’s experience of pain and recommended that the plaintiff take an anti-depressant. He considered that “purely on psychiatric grounds alone from a narrow, hypothetical and artificial perspective, he may have a partial capacity for so-called suitable duties.”[187]
[187] Exhibit P8, PCB 89.
269Ms Gupta psychologist treated the plaintiff during Advance Healthcare’s pain management program and provided a report dated 4 April 2024.[188] She diagnosed an adjustment disorder with mixed anxiety and depressed mood in the context of his persistent pain condition. However, in Ms Garcia’s report of 5 July 2024,[189] she considered that the plaintiff would gradually improve with treatment.
[188] Exhibit P5, PCB 49-51.
[189] Exhibit P6, PCB 52-60.
270Mr Miles submitted that although Ms Garcia is a long term treater of the plaintiff, who diagnosed him with a major depressive disorder and adjustment disorder with anxiety, and considered that he was unlikely to have capacity for work,[190]on almost all occasions bar one, she had treated the plaintiff over the phone in English, and with his children sometimes assisting with interpreting. This Mr Miles said was “not an ideal situation” for a psychologist to come to an objective assessment of her patient.[191]
[190] Exhibit P6, PCB 57-58.
[191] T 70, L 29-30.
271Mr Miles submitted that the plaintiff was belatedly referred to psychiatrist Dr Thomas, who provided a report dated 24 July 2024.[192] He recommended that the plaintiff’s anti-depressant be increased from 25 mg to 100 mg and it appeared that process got underway given the plaintiff’s evidence that his medication had been increased and that it had helped his sleeping a little bit.[193]
[192] Exhibit P12, PCB 184-185.
[193] T 22, L 18-20.
272The defendant’s psychiatrist, Professor Singh, in his report dated 19 April 2023 diagnosed an adjustment disorder with depressed mood and thought that “the main barriers influencing the course of the condition are his isolation in Australia and the fact that his wife has died and he is having conflict with his children.”[194] He considered as well that the possibility of recovery was tied to the plaintiff’s physical condition.
[194] Exhibit D3, DCB 16.
273Dr Prytula in his report of 28 June 2023 considered that the plaintiff did not have capacity for suitable employment, and considered that his capacity was being determined by his physical symptoms, which were in turn affecting his mental state.[195] Mr Miles submitted that the psychiatrists were taking the plaintiff’s complaints at face value but had not seen the surveillance video in this case.
[195] Exhibit D5, DCB 33.
274The defendant’s position was that none of the psychiatric reports, reached the point of a severe psychiatric injury.
Economic Loss
275The parties agreed that $644 was the weekly figure.
276Mr Miles submitted that if I accepted the plaintiff could perform each of the roles in the vocational assessment report then the plaintiff’s claim ought be dismissed, because the average weekly wage for a:
(a) courier driver is $1,237;
(b) product assembler $1,042;
(c) light delivery driver is $1,040;
(d) uber driver is $970; and
(e) meter reader is unknown.
277Mr Miles submitted that though the worker was not literate, his English was better than he admitted to, having undertaken lessons for about three years, and had apparently been able to pick up on what he thought was the inadequacy of the interpreter not translating his complaints correctly at examination with Dr Kamat.
Plaintiff’s Submissions
278Mr Saunders submitted that the defendant made credit a central issue, based solely on the surveillance. Mr Saunders submitted that although unsophisticated, the plaintiff should be assessed as a witness of truth. He struggled to give his evidence due to pain and fatigue. As was seen by his appearance in the witness box, he was slumped and frequently altering his position. He testified without prevarication, and made a number of declarations against interest, such as his capacity for certain jobs, and which may be regarded as bolstering his credit.
279Mr Saunders submitted that the plaintiff is motivated, but he is unable to work by reason of his physical injury and also his psychiatric state. No treating doctor has recommended that he return to work.
280Mr Saunders relied on the evidence of Dr White, who is accepting of the plaintiff's desire to work, notwithstanding what he considers to be a significant psychiatric illness, and in fact described him as stoic.
281Mr Saunders submitted that the best account of the injury is from Dr Mehr and Mr Bittar and to a lesser extent, Dr Sullivan all of whom identified an aggravation of largely asymptomatic pre-existing degenerative changes, with the pain generator being the plaintiff’s facet joints.
The Surveillance
282Mr Saunders addressed the surveillance. The defendant made an admission that there were 47 hours of attempted surveillance, but only 17 minutes of footage.
283Mr Saunders argued that I ought to accept the plaintiff’s evidence.The plaintiff was not observed to be doing anything inconsistent with his sworn evidence or according to the histories to doctors. If anything, his presentation was at least broadly consistent. Mr Saunders suggested that the plaintiff walked slowly and frequently with an antalgic gait, and sometimes with a frank limp.
284Mr Saunders submitted that it is significant that the plaintiff was using a walking stick immediately after the appointment with Dr Kamat, and in the same manner as he was immediately prior to it, negating the argument that use of the stick was a contrivance.
285The fact of the plaintiff not using the stick when doing some light shopping, is consistent with the reporting history. Doctors noted that he can undertake some light shopping and carry some small items. The plaintiff also deposed to that type of capacity. The video of surveillance did not cause the doctors to change their opinions.
286Mr Saunders submitted that it is significant that the surveillance was not shown to the defendant’s doctors. Mr Saunders contended that it would have been simple to send the surveillance footage to Dr Thomas, and to other medical witnesses, but the defendant declined to do so, and he invited me to draw an inference in accordance with Kuhl v Zurich Financial Services Australia Ltd.[196]
[196][2011] HCA 11; 243 CLR 361.
287As to a work capacity, Mr Saunders submitted uncontroversially, that the plaintiff comes from a very disadvantaged background; he has had very limited education, he is unsophisticated and his work history is limited to manual labour type employment and given his limited English language skills, he is not suited to anything other than manual work; and he has not worked for over three and a-half years, and that the assistance that he has been provided has been limited to improving his English language skills which are basic and his IT skills which are similarly basic.
288Mr Saunders submitted that if it was thought that the defendant identified a position which would constitute suitable employment, then I should be satisfied that the plaintiff has proved that he does not have capacity for the same in that none of the jobs are suitable, and a central component of each of them, is the plaintiff’s limited English skills.
289Mr Saunders addressed the defendant’s reliance on the opinion of Dr Thomas. Mr Saunders submitted that although Dr Thomas is an experienced and well-regarded medico legal witness, it is trite to acknowledge that no witness is infallible, but that at any rate, the weight of the evidence including of the plaintiff’s treating doctors is on balance more persuasive, and Dr Thomas’ opinion is confined to matters physical only.
290Mr Saunders addressed the issue of disentanglement. Mr Saunders acknowledged that the plaintiff needs to be able to establish that the injury on which he relies pursuant to subparagraph (a) of the definition of serious injury, has a substantial organic basis. Mr Saunders submitted that the high point for the defendant is the opinion of Dr Clayton Thomas, who reported a significant overlay in the plaintiff’s presentation, but that Mr Saunders submitted was not an opinion that excluded the plaintiff suffering from an injury with a substantial organic basis.
291Mr Saunders submitted that the evidence disclosed that separately the plaintiff has developed a mental disorder and condition. It has been described as an adjustment disorder with mixed anxiety and depressed mood, in the context of his physical injury and chronic pain by reference to Ms Gupta and a major depressive disorder and an adjustment disorder with anxiety. Dr Weismann diagnosed a work related chronic adjustment disorder with depressed and anxious mood of moderate intensity, that was partly work related together with unresolved grief and bereavement.
292Dr Singh believed the plaintiff’s mental state was a consequence of his physical disability. Dr White also diagnosed the plaintiff’s mental state of a chronic adjustment disorder with mixed anxiety and depressed mood with symptoms of anxiety and depression caused by disability following his work injury but that other significant causative factors were at play such as the death of the plaintiff’s wife and the vexed relationship with his children.
Analysis and Findings
293Under paragraph (a) of the definition of serious injury, the plaintiff is tasked with establishing that the injury on which he relies has a substantial organic basis.
294I am satisfied that the plaintiff has proved injury to his spine by way of aggravation of what was previously largely asymptomatic spondylosis in the neck, but more particularly, the lower back or lumbar spine, for the following reasons.
295Dr Mehr described the source of the plaintiff’s pain as primarily organic.
296I observe that the plaintiff’s WorkCover claim under both limbs of injury was accepted.
297Although Dr Clayton Thomas made a finding of the presence of non-organic factors affecting the plaintiff’s ‘presentation’, this does not equate to a finding that excludes the injury nonetheless having a substantial organic basis. Indeed, Dr Thomas said he could not exclude a nociceptive cause for the plaintiff’s nonspecific back ache.[197] However, and despite Dr Thomas not thinking the plaintiff as capable of a return to pre injury work, he saw no reason to exclude a return to pre injury work hours, and he expressed the opinion that from a physical standpoint, the plaintiff had a capacity for suitable employment.
[197] Exhibit D4, DCB 25.
298Dr Kamat’s opinion is that the plaintiff’s injury, by way of aggravation of cervical and lumbar spondylosis is genuine, although he thought there may be a psychological element involved in the plaintiff’s response to the physical effects of his injury.
299Dr Daniel did not discount the genuineness of the plaintiff’s experience of pain, but he assessed the plaintiff to be a rigid thinker who was looking for a cure, and associating any activity which causes him hurt as equating in his eyes to harm. These may be unhelpful characteristics for the plaintiff to present with from a treating point of view, and in order to enable better management of his physical health, but it is not a basis to exclude a physical cause of his incapacity.
300The plaintiff’s spine was largely asymptomatic prior to the compensable injury. It became symptomatic in the immediate wake of the injury with neck and lower back pain and discomfort. The shoulder pain referred to by the plaintiff was not foremost in the focus of the matters of complaint in the plaintiff’s evidence at the hearing.
301There is a lack of persuasive evidence to contradict the plaintiff’s evidence that because of cervical and lumbar pain, he has reduced and limited functional capacity in activities of daily living by comparison to the state of affairs that he enjoyed before the accident. There is no evidence to contradict the plaintiff’s account that pain disposes him to waking. He might ruminate which may cause a disturbance to sleep, but I accept that it is pain, predominantly in his back, that wakes him.
302I have taken into consideration that the plaintiff’s unwillingness to undertake interventions by way of injections is difficult to rationalise, given his evidence that he would try anything, if he thought it could alleviate his pain. The defendant’s submission was not that the plaintiff’s failure to undergo treatment was unreasonable, but instead, it underscored an attack on the genuineness of the plaintiff’s pain, because if he was suffering to the extent he described to doctors and he testified to, he would have taken the relatively non-invasive course of injections that were recommended to help his underlying but aggravated spondylosis. I think it is too long a bow to draw that because of the rejection of the suggested treatment, the plaintiff’s pain is not real or is highly exaggerated. He has not been dismissive of other modalities of treatment, and takes prescribed pain relieving medications, and has undergone physiotherapy. I am unwilling to draw an analogy of equivalency between what was essentially a state mandated Covid injection, and injections designed for the plaintiff’s spinal pain. Moreover, it struck me listening to the plaintiff, that it was not until he was cross-examined about the injections that he seemed to properly grasp their purpose and scope. Bearing in mind his language and education, it is debateable if he appreciated what the suggested injections involved, or what the effects on him of them might be. He expressed some fear about them, and I accept it was this, and not a lack of genuineness of disability, that underpinned his actions on that score.
303I am satisfied that the plaintiff has identified a medical basis that “sufficiently separates out” a present organic injury, with the same being the author of pain and of functional limitations, in performing everyday activities of daily living and that did not exist before the injury, and on that basis alone, I am satisfied the aggravation to the plaintiff’s underlying but asymptomatic spine, is a serious aggravation.
304As to the claim under paragraph (c), I am satisfied that the preponderance of evidence is that the plaintiff’s physical injury has resulted in the development of a separate mental disorder that has been variably diagnosed as ranging from the moderate to the severe. The plaintiff’s treating psychologist describes the injury as a major depressive disorder. I accept that diagnosis.
305When I take into account the absence of medications or treatments required by the plaintiff for his mental health prior to the work injury in February 2021, and this includes the period that followed the unfortunate death of his wife in 2019, and the development of some apparent family disharmony, but during which times the plaintiff was working, I am satisfied that a significant cause of the onset of the plaintiff’s diagnosed mental state, has been the compensable physical injury. I note that, for example, Dr Prytula, reported that as serious as it had been, the plaintiff was successfully grieving the loss of his wife. The emotional symptoms that manifest in the plaintiff and the need for medications to manage his mental condition, satisfy me that they are more than significant and that the injury under paragraph (c) is severe.
306Other than from Dr Thomas, the evidence is not confident that whether from a physical point of view, or separately, from a psychiatric basis, that the plaintiff has a capacity for suitable employment. When the plaintiff’s physical limitations and the recommendations for restrictions that have been identified are considered, and taken together with the plaintiff’s lack of English language skills, and the absence of transferrable skills more generally, I am satisfied that such suggested employment relied on by the defendant, is not suitable employment. The same result applies based on the effects the plaintiff suffers in consequence of his ongoing mental condition, and these include, social withdrawal and isolation, the effect on cognitive capacity as referred to by Dr Weissman, and the ongoing need for medications to assist his mental state and also separate from that taken for pain relief, then there is no realistic capacity for ongoing employment on a consistent and reliable basis.
307Addressing the question of permanence, the evidence of Ms Garcia, Dr Weissman, Dr Prytula and Dr White, offer a more than convincing basis that satisfies me that the plaintiff’s mental state is stable and will likely to continue indefinitely in its current form.
308I am satisfied that the physical injury in the form of chronic pain occasioned by the aggravation to the plaintiff’s underling spondylotic state is also permanent. The plaintiff has suffered consistent pain since 2021. Although injections might have, or might still if followed through on, offer some period of relief, the prospect of episodic relief from the ongoing heightened levels of reported pain, is not a basis for me to conclude that the organic injury is not a serious long term impairment to the spine.
309I have not found it necessary to consider the application of Kuhl v Zurich Financial Services Australia Ltd,[198] because I have not assessed the limited surveillance as of such probative worth to have displaced my principal findings. Accordingly, the occasion to consider the drawing of an unfavourable inference because of the lack of provision of surveillance by the defendant to its medical witnesses does not arise. I did not find the plaintiff’s credit impeached by the footage. The activities seen were neither contrary to the plaintiff’s evidence, or the accounts found in the medical reporting and nor did the surveillance upset the fundamental opinions of those from the plaintiff’s camp who viewed the footage. The plaintiff’s use of the stick when waiting to see Dr Kamat, in the absence of evidence that suggested, for example, that he was aware he was under surveillance, is more indicative of genuine purpose for its use as opposed to a contrivance. The surrounding matters of the plaintiff walking a longer route to his car than a shorter one, and the changing of the stick at times from one hand to another, were explained by the plaintiff, and on balance, I accept the explanations.
[198] [2011] HCA 11; 243 CLR 361.
310The plaintiff has satisfied the requirement of a loss of an earning capacity whether on the basis of paragraph (a) or under paragraph (c) of the definition of serious injury and as such, would be entitled to leave to bring proceedings for both pain and suffering and a loss of earning capacity.[199] The plaintiff acknowledged that the claim for a loss of earning capacity was an ‘all or nothing’ claim. It follows from my findings that the plaintiff has discharged his burden in support of this element of his claim for relief.
[199]See Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170 [63].
311The plaintiff is entitled to the relief sought in the Originating Motion. I will hear the parties on the form of final orders and of costs.
0
11
0