Bakhsh v Victorian WorkCover Authority
[2025] VCC 3
•24 January 2025
| IN THE COUNTY COURT OF VICTORIA AT BENDIGO COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-24-02642
| JAFAR BAKHSH | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE MYERS | |
WHERE HELD: | Bendigo | |
DATE OF HEARING: | 12 and 13 November 2024 | |
DATE OF JUDGMENT: | 24 January 2025 | |
CASE MAY BE CITED AS: | Bakhsh v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 3 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the lumbar spine – psychological injury – pain and suffering – loss of earning capacity
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), s 335
Cases Cited:Mobilio v Balliotis [1998] VR 833; Church v Echuca Regional Health (2008) VR 566; Meadows v Lichmore Pty Ltd [2013] VSCA 201; Jones v Dunkel (1959) 101 CLR 298; Dordev v Cowan & Ors [2006] VSCA 254; Petrovic v Victorian WorkCover Authority [2018] VSCA 243; Papamanos v Commonwealth Bank of Australia [2014] VSCA 167
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mighell KC with Mr M Fogarty | Zaparas Lawyers |
| For the Defendant | Mr S A Smith KC with Ms K M Manning | Hall & Wilcox |
HER HONOUR:
Introduction
1Mr Jafar Bakhsh, the plaintiff, is a 37-year-old former farm worker. He claims that on 17 March 2021, he suffered an injury to his lumbar spine in an incident (“the March incident”) in the course of his work for Australian Pomegranate Growers Pty Ltd (“the employer”). He also claims to have suffered a consequential psychological injury.
2Mr Bakhsh applies for leave to bring a common law proceeding seeking pain and suffering and loss of earning capacity damages pursuant to the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (“the Act”). His claim is that he has a “serious injury” of his lumbar spine and/or a “severe” psychological condition.
3In opening, Senior Counsel for Mr Bakhsh indicated that the claim was founded upon injury in the course of work, and in two incidents, on 18 September 2020 (“the September incident”), and in the March incident. However, during closing submissions, Senior Counsel for Mr Bakhsh confined the claim to the injuries and impairment consequences referable to the March incident only.
4To succeed in his application for leave to claim pain and suffering damages, Mr Bakhsh must establish that the permanent impairment consequences of his compensable lumbar spine injury are “serious”, that is, that they can be fairly described as being “more than significant or marked”, and as being “at least very considerable”. The compensable psychological condition must have “severe” impairment consequences to meet the statutory threshold.
5To succeed in his application to seek loss of earning capacity damages, Mr Bakhsh must establish that he is permanently unable to earn at least 60 per cent of his “without injury” earnings in suitable employment by reason of his lumbar spine injury and/or psychological injury. He must also establish that the loss of earning capacity consequence of the lumbar spine injury is “serious”, and/or that the loss of earning capacity consequence of the psychological condition is “severe”.
6The Victorian WorkCover Authority (“the VWA”), the defendant, conceded that Mr Bakhsh suffered a compensable injury to his lumbar spine in the March incident. The VWA identified the issues to be Mr Bakhsh’s reliability as a witness, whether there is a substantial organic basis for Mr Bakhsh’s claimed lumbar spine impairment consequences, the nature and extent of the claimed impairment consequences, and the extent of any incapacity for employment.
7Therefore, the issues for determination are:
(a) Was Mr Bakhsh a reliable witness?
(b) Is there a substantial organic basis for Mr Bakhsh’s claimed lumbar spine impairment consequences?
(c) If (b) cannot be answered “yes”, can Mr Bakhsh’s organic impairment consequences be separated from those referable to a psychological or non-organic response?
(d) Are Mr Bakhsh’s claimed lumbar spine impairment consequences permanent, in the sense that they are likely to last for the foreseeable future?
(e) Are the permanent impairment consequences of the compensable lumbar spine injury “serious”?
(f) Is Mr Bakhsh permanently unable to earn at least 60 per cent of his “without injury” earnings because of the impairment consequences of the compensable lumbar spine injury?
(g) Is the loss of earning capacity consequence of Mr Bakhsh’s compensable lumbar spine injury “serious”?
(h) What permanent impairment consequences are due to psychological injury consequent upon the compensable injury?
(i) Is Mr Bakhsh permanently unable to earn at least 60 per cent of his “without injury” income because of the impairment consequences of the compensable psychological injury?
(j) Is the loss of earning capacity consequence of Mr Bakhsh’s compensable psychological injury “severe”?
(k) Are the permanent impairment consequences of the compensable psychological injury “severe”?
8For the reasons that follow, I find that Mr Bakhsh has not satisfied his onus to establish that he has a “serious injury” to his lumbar spine or a permanent “severe” mental or permanent severe behavioural disturbance or disorder.
Background
9The following, I believe, are uncontroversial matters. As far as any were contested, these represent my findings unless otherwise stated.
10Mr Bakhsh was born and brought up in Syria. He completed primary school to about aged 13[1] but did not attend secondary school. After leaving school, Mr Bakhsh worked in a hotel performing reception work.
[1]Plaintiff’s Amended Court Book (“PCB”) 114.
11Mr Bakhsh suffered an injury to his right foot in a bomb blast in Syria. He did not require surgery. Mr Bakhsh has a small piece of shrapnel in his right foot which does not cause any ongoing pain.
12Mr Bakhsh married in 2011. His wife sponsored his move to Australia in 2013. Mr Bakhsh was then aged 26 years.
13Following his arrival in Australia, Mr Bakhsh participated in English classes at a local TAFE for about 12 months. He has “moderately good” verbal English skills, but poor English literacy.[2]
[2]PCB 102.
14Mr Bakhsh obtained a Heavy Rigid Truck Licence and a Forklift Licence. He worked for Visy for about three years as a truck driver and forklift driver.
15In around 2019, Mr Bakhsh and his wife separated but continued to live in the same home near Shepparton with their four young children.
16Mr Bakhsh commenced employment with the employer on 3 August 2020. Prior to this he had worked for the employer through a labour-hire company for about four or five weeks during the harvest season in April/May 2020.
17In the September incident, Mr Bakhsh suffered an injury to his right foot when a heavy plastic roll fell onto his foot in the course of his work. Mr Bakhsh developed increasing low back and left leg pain following that injury. He was prescribed Celebrex by his general practitioner (“GP”).
18In the March incident, Mr Bakhsh developed increased back pain after slipping and falling in mud when repairing water pipes at the employer’s farm. Mr Bakhsh was driven to the emergency department at Goulburn Valley Health by his employer. His lower back and left hip were x-rayed.
19Mr Bakhsh did not work over the following year. He attempted a return to modified duties and reduced hours in early April 2022, but that was short-lived.
20Mr Bakhsh has not worked in any capacity since April 2022.
21Mr Bakhsh’s lumbar spine condition has been treated conservatively. He has had some physiotherapy treatment. He was referred to a rehabilitation physician, a neurosurgeon, and an occupational physician.
22Currently, Mr Bakhsh attends his GP monthly, and is prescribed Lyrica, Tramadol and Endone for his lumbar spine condition. Mr Bakhsh’s GP continues to certify that he is unfit for any suitable employment.
23Mr Bakhsh consulted a psychiatrist in February 2024. He is prescribed Cymbalta and mirtazapine for his psychological condition.
The lay evidence
24Mr Bakhsh’s described his impairment consequences as a result of his lumbar spine injury in his first affidavit sworn on 16 January 2024 as follows:
“30.I continue to suffer constant, fluctuating low back pain. The pain varies. The pain in my back is made worse with activity. The pain radiates to my left leg, down beyond my left knee. I experience numbness in my left leg at times. At times, my back pain is severe. I experience flare-ups of severe back pain at least three to four times a week. On these occasions, I experience an intense, aching pain in my lower back. When I have a flare-up, I try stretching, use heat packs, take extra medication, and usually lie down with pillows underneath my legs. I rest until the pain settles.
31.My back pain gets me down at times. I get agitated and frustrated, particularly when my back pain is bad.
…
33.I take Lyrica on a daily basis for back pain. I take Tramadol, usually four to five times a week. I take Endone for flare-ups of severe pain.
34.As a consequence of my back pain, I am restricted in my ability to perform heavy lifting. Repetitive bending and twisting aggravates my back. Likewise, sitting and standing for long periods causes me increased back pain.
…
36.I have broken sleep every night due to back pain. I often experience flare-ups of severe back pain at night. I toss and turn in bed. I struggle to get comfortable. It often takes me a long time to get back to sleep after I have been woken by pain. I feel tired during the day because I cannot sleep properly at night. Consequently, I have little energy during the day.
37.As a consequence of my back pain, I am restricted in my ability to play games and sports with my kids. For example, I am unable to kick a soccer ball with my kids like before. I am now very restricted. I find this upsetting and frustrating.
38.I struggle to drive long distances due to back pain. On long trips, my wife generally drives. I need to take breaks on longer trips as my back gets increasingly painful. I used to enjoy going on long trips in the car with my family. I am now very limited in my ability to do this because of my back.
39.Prior to my back injury at work, I used to help out a lot more with the jobs around the house, including mowing the lawn and cleaning the house. I do very little around the house now due to back pain. I now pay someone to mow the lawn.
40.I have enjoyed playing soccer for many years. I was playing competitive soccer up until 2018. After this, I used to enjoy playing soccer with mates in the park. I used to regularly do this. I no longer play soccer with my mates because of my back pain.
41.My intimate relationship with my wife has been affected significantly because of my back pain. I have a significantly reduced libido now.”
25In his second affidavit sworn on 23 September 2024, Mr Bakhsh relevantly deposed:
“3.Since my first affidavit, I have basically continued to suffer the symptoms, consequences, and effects of my back injury, as set out in my first affidavit.
4.I continue to suffer ongoing, variable low back pain. I continue to experience flare-ups of severe back pain at least three to four times a week. I generally need to lie down when I have a flare-up of severe back pain.
…
7.I currently take Lyrica (300mg every morning) for back pain. I take Tramal, usually once a day. Tramal makes me feel dizzy and causes me to struggle to think clearly. I often take Endone before I go to bed at night. I also take Endone for flare-ups of severe back pain.
…
9.I continue to have disrupted sleep every night due to back pain. I estimate I get around four to five hours sleep on average each night. As a result of broken sleep, I feel tired all the time. I sometimes have a nap in the afternoon because of lack of sleep at night.
10.By reason of my back pain, I remain very restricted in how active I can be with my four young kids. This continues to upset me.
11.My back pain affects my ability to drive long distances. I sometimes drive my kids to and from school. My wife usually does this now.
12.I am restricted in my ability to perform heavier jobs around the house and garden because of my back pain. I pay someone to come to our place every three weeks to mow the lawn and tidy up the garden.
13.I have not been able to return to playing soccer with my mates since my first affidavit due to my back pain. I miss it. It was a big part of my social life.”
26In his oral evidence, Mr Bakhsh said that he began to develop back pain a few days after the September 2020 incident.[3] He resumed pre-injury duties. Mr Bakhsh said that he continued to have lower back pain thereafter, but it was only minimal back pain by the time of the March incident.
[3]Transcript (“T”) 40.
27Mr Bakhsh tendered an affidavit from his wife, Zanab Zargar, sworn on 23 September 2024. Ms Zargar relevantly deposed:
“4.… [we] have been separated since around 2019. We still live under the one roof. We are trying to repair our relationship for the sake of our kids.
5.I see Jafar is in pain every day. Some days, when his pain is really bad, he struggles to get off the couch. Jafar regularly asks me for help to do things. For example, I clip his toenails because he struggles to bend over.
6.I see Jafar take medication for pain. I usually give him his daily medication.
7.Jafar lies down a lot during the day, usually on the couch.
8.He often uses a hot water bottle on his back, even in summer.
9.Jafar has not worked for over two years now. He used to always work. I know he enjoyed work.
10.Jafar does not sleep well because of his back pain. Before he hurt his back, he had no issues with sleeping. He wakes me up during the night. When he wakes up, he sometimes calls out for tablets or an extra blanket. We sleep in different rooms, but I still hear him getting up and moving around during the night.
11.Before Jafar hurt his back, he used to mow the lawn and work in the garden. He really enjoyed being outdoors, doing manual work. Now, he basically does nothing around the house and garden. We pay someone to look after the garden.
12.Jafar used to be really active with our kids before he hurt his back. He used to take the kids to playgrounds and play soccer with them. Now, he does very little with the kids. Kids activities are basically done with me now.
13.Jafar used to enjoy playing soccer. He used to play soccer with mates. He no longer plays soccer. I know a number of his mates still play soccer. I know this gets him down.
… .”
28The VWA did not seek to cross-examine Ms Zargar. Her affidavit was in broad terms, and did not mention the two incidents.
29This is a convenient point to consider the tendered medical evidence.
The medical evidence
Treating practitioners
Imaging
30An x-ray of Mr Bakhsh’s lumbar spine and left hip performed on 17 March 2021 revealed no abnormality.[4]
[4]PCB 130.
31An MRI scan of the lumbar spine performed on 31 March 2021 at the request of Mr Bakhsh’s GP, Dr Albatat, was reported to reveal:
“Moderate localised L4/5 lumbar disc disease with a shallow central disc extrusion. This is probably old. It does not appear to impinge upon neighbouring nerve root. Mild canal stenosis.
Normal exiting L4 and l5 nerve roots bilaterally.”[5]
[5]PCB 131-132.
32A bone scan performed on 15 October 2021 at the request of Dr Akil, neurosurgeon, was reported to be “normal”.[6]
[6]PCB 133.
33An MRI scan of the thoracic and lumbar spine performed on 20 October 2021 at the request of Dr Mehr, rehabilitation physician, was relevantly reported to reveal:
“There are non-compressive lumbar disc protrusions at L2/3 and L4/5
There is [an] L4/5 midline annular fissure.”[7]
[7]PCB 134.
34A nerve conduction study performed by Dr Mehr on 17 December 2021 was reported to be normal.[8]
[8]PCB 136-138.
35An MRI scan of the lumbar spine performed on 6 March 2023 at the request of Dr Akil was reported to reveal:
“Minor degenerative changes affecting several discs.
No significant neural compression centrally or peripherally.”[9]
[9]PCB 139.
Dr Mazen Albatat, GP
36Mr Bakhsh tendered a report from Dr Albatat dated 2 October 2024.
37Dr Albatat had treated Mr Bakhsh prior to the first incident but had moved away. Dr Albatat returned to Shepparton and Mr Bakhsh resumed seeing him in July 2021 (four months after the March incident).[10] Dr Albatat speaks Mr Bakhsh’s native language.
[10]T41.
38Dr Albatat opined that Mr Bakhsh may have aggravated L4/5 lumbar disc disease in the March incident. He noted that his clinical records did not reveal a history of back pain.
39In answer to the question: “Whether, in your opinion, our client’s diagnosed back injury has an organic basis”, Dr Albatat responded: “This may have caused a disc bulge.”
40Dr Albatat noted that Mr Bakhsh continued to have chronic back pain and should avoid lifting and standing for prolonged periods. He opined the injury might be permanent.
41Dr Albatat did not identify the medications he prescribed to Mr Bakhsh. Further, he did not discuss the circumstances in which Mr Bakhsh resumed taking Tramadol and Endone, having weaned off that medication in 2022 on advice from Dr Mehr.
42Dr Albatat did not comment on Mr Bakhsh’s work capacity. He deferred to specialist opinion.
Dr Ali Mehr, rehabilitation physician
43Mr Bakhsh tendered a report from Dr Mehr dated 8 October 2024.
44Mr Bakhsh was first seen by Dr Mehr on 21 September 2021, and was subsequently reviewed on 22 October 2021, 13 December 2021, 17 December 2021, 11 February 2022, 9 April 2022, 11 October 2022, 24 March 2023 and 23 June 2023. All the consultations were by Telehealth, except the first appointment on 21 September 2021 and the appointment on 17 December 2021. Dr Mehr speaks Mr Bakhsh’s native language.
45Dr Mehr noted that the injury occurred in the March incident, and there was no “contributory past medical history”. That is, it appears that Dr Mehr did not have a history of the September 2020 incident, or the lower back pain Mr Bakhsh experienced consequent upon it.
46When first seen on 21 September 2021, Mr Bakhsh complained of lumbar pain which varied in intensity between “4-10/10”, and intermittent leg pain.
47On examination, Mr Bakhsh had a slow, antalgic gait. Extension was to 10 degrees and flexion to 30 degrees. Straight leg raising to the right and left was positive at 40 degrees. Neurological examination showed some sensory disturbances in multiple territories including L4 and L5 for the left side. Reflexes were normal. There was significant tenderness and spasm in the lower back, especially paraspinal.
48Dr Mehr referred Mr Bakhsh for a weightbearing MRI scan of the lumbosacral spine, and prescribed Norflex. He advised a gradual reduction in Tramadol and the cessation of Endone.
49During reviews in 2021, Dr Mehr continued to advise the reduction and cessation of Tramadol and Endone, and prescribed Celebrex and Dozep.
50By April 2022, Mr Bakhsh reported to Dr Mehr that he had stopped taking Tramadol and Endone. He reported that Celebrex did not help, so he had stopped taking it. Dr Mehr prescribed Norgesic.
51I pause to note that Mr Bakhsh is currently taking Endone and Tramadol. That is, he resumed doing so some time after April 2022. The circumstances in which this occurred, and the timing of the resumption were not apparent on the evidence.
52On 24 March 2023, Dr Mehr suggested Mr Bakhsh see a psychologist as “his psychological condition and motivation was deteriorating, and he was quite depressed and irritable”.
53Dr Mehr concluded that Mr Bakhsh’s condition “had been unchanged”. He diagnosed an aggravation of lumbar spondylosis. He opined that the prognosis was poor. He opined that Mr Bakhsh had no capacity for work as “the only work that he could do was a heavy physical work, or the work that requires long time sitting, standing or walking”.
54Dr Mehr opined:
“Prognosis for return to alternative work, because of the language barrier, lack of suitable experience, education, and qualification, it will be very unlikely for … [Mr Bakhsh] to be able to find any alternative work in [the] foreseeable future.
...
Mr Bakhsh has significant physical limitation as a chronic pain condition. He cannot bend, [or] lift more than 5kg. He cannot lift repetitively. He cannot twist, kneel, squat. He cannot reach above because of the back pain, and he cannot be in [a] sitting, standing, or walking position for more than 30 minutes at a time. Therefore, he is unable to perform any alternative physical work on a reliable and consistent basis, especially because of the unpredictability of his condition. Sometimes this physical tolerance can change significantly.
Also because of [the] English language barrier and lack of suitable experience, qualification, and education, it is very unlikely for him to be able to find [a] sedentary job in a free job market.”[11]
[11]PCB 126-127.
Dr Hazem Akil, neurosurgeon
55Mr Bakhsh tendered a report from Dr Akil dated 23 September 2024.
56Mr Bakhsh was first seen by Dr Akil on 7 October 2021 and was subsequently reviewed by him on 3 February 2023 and 10 March 2023. Dr Akil speaks Mr Bakhsh’s native language.
57When he first saw Mr Bakhsh, Dr Akil noted that the injury occurred on 16 March 2021. Mr Bakhsh described lumbar back pain and reduced sensation through the whole of his left lower limb. Dr Akil noted that Mr Bakhsh had been prescribed Tramadol and Endone “but he managed to get off them and was taking Norflex … prescribed by … Dr Mehr”. Dr Akil said that he was not aware of any past medical history that could be contributory to his pain. That is, it appears that Dr Akil did not have a history of the September 2020 incident.
58On examination on 7 October 2021, there was forward flexion to about 30 degrees and extension to 10 degrees. Dr Akil said:[12]
“I also noted altered sensation in a non-dermatomal way involving the whole of the left lower limb but there was no detected motor dysfunction. I also noted that his deep tendon reflexes were all present and normal.”[13]
[12]PCB 118.
[13]Ibid.
59Dr Akil reported that the initial MRI scan “documented severe disc disease at L4/5”, bone scan and nerve conduction studies were reported as normal and a repeat MRI scan in March 2023 “showed [a] continuous similar picture to the previous MRI which showed degenerative changes at the level of L4/5”.
60Dr Akil diagnosed “aggravation of early degenerative changes”. Dr Akil opined “there are organic bases of (sic) his back injury”. He opined that the prognosis was guarded.
61Dr Akil stated that Mr Bakhsh was unfit for his unrestricted pre-injury duties. He opined that the roles of delivery driver, product assembler and retail assistant might be suitable, provided there was no bending, repetitive bending, prolonged sitting, standing, walking, and lifting of objects heavier than 10 kilograms.
Dr Kilner Brasier, occupational physician
62Mr Bakhsh tendered four reports from Dr Brasier, dated 13 January 2022, 17 March 2022, 28 April 2022 and 9 June 2022.
63In his first report, Dr Brasier noted that Mr Bakhsh first attended on 13 January 2022 via Telehealth. No interpreter was present, and Dr Brasier said, “we struggled a bit”. Dr Brasier noted that the claimed lumbar spine injury was sustained in March 2021. He understood the prior medical history was “noncontributory”. Dr Brasier made no reference to the September 2020 incident and consequential lower back pain.
64As to occupational history, Dr Brasier said he assumed Mr Bakhsh’s duties for the employer were “largely labouring type work,” and said:
“I was unfortunately unable to explore Mr Bakhsh’s occupational history in detail; however, I was able to identify that he has worked as a truck driver and in the security industry. He has a forklift licence and a motor vehicle driver’s licence.”[14]
[14]PCB 65.
65Dr Brasier opined that Mr Bakhsh was unfit for his pre-injury employment. He said:
“Considering his radiological investigations have not shown any pathology and that he is not likely to need any ongoing neurosurgical intervention, it is my opinion that he has a work capacity for suitable duties.”[15]
[15]PCB 66.
66Dr Brasier suggested a trial of suitable duties, four hours a day on non-consecutive days. He outlined his suggested restrictions.
67In his short report dated 17 March 2022, Dr Brasier noted Mr Bakhsh had returned to suitable duties working two hours, two days a week, and was about to increase to four hours, two days a week.
68In his report dated 28 April 2022, Dr Brasier noted that Mr Bakhsh had stopped taking stronger narcotic medications and was trialling a TENS machine. Mr Bakhsh complained of intermittent pain which was recently aggravated by his attempt to increase his modified duties. Dr Brasier recommended a pain management program and opined that Mr Bakhsh should “remain on his current two days per week” until after he completed the pain management program.
69In his last report dated 9 June 2022, Dr Brasier noted that Mr Bakhsh had not worked for six weeks. Dr Brasier recommended he return to work on suitable duties four hours on two non-consecutive days for the first month. Mr Bakhsh reportedly said that he was “progressing well” with the pain management program.
70Dr Brasier said that he assumed Mr Bakhsh’s pre-injury duties were largely labouring type work.
Dr Owals Sharif, psychiatrist
71Mr Bakhsh tendered a report from Dr Sharif dated 28 February 2024. It appears Dr Sharif consulted with Mr Bakhsh once.
72On mental state examination Dr Sharif noted:
“… [H]e was alert and pleasant in manner. Mood was low with restricted affect. No suicidal ideation, thought disorder or perceptual disturbance elicited. Satisfactory insight.”[16]
[16]PCB 72.
73Dr Sharif diagnosed a Major Depressive Disorder and Chronic Pain. He recommended duloxetine and mirtazapine and a referral for psychological therapy. He did not arrange a further review.
Medico-legal practitioners
Mr Siva Chandrasekaran, orthopaedic surgeon
74Mr Bakhsh tendered a report from Mr Chandrasekaran dated 23 May 2022. Mr Chandrasekaran examined Mr Bakhsh on 26 May 2022[17] at the request of the VWA.
[17]The date of examination is three days after the date of the report. One or other date is incorrect.
75Mr Bakhsh reported that he suffered constant back pain, exacerbated by movement and associated with intermittent left leg sciatica. He said he was unable to perform any bending or lifting activities. Mr Bakhsh reported difficulty showering, bending to wash his lower limbs, and getting up from the toilet seat. He was unable to perform household chores or mowing. He reported a driving tolerance of 30 minutes.
76On examination, Mr Chandrasekaran found:
“… Mr Jafar Bakhsh walked with an antalgic gait. There was pain on palpation of the lower back with restriction of all range of motion. Forward flexion was 10 degrees, extension 10 degrees, lateral flexion to the right was 10 degrees, lateral flexion to the left was 10 degrees. Mr Jafar Bakhsh was able to walk on his toes and heels. Straight leg raise was positive on the right at 30 degrees and the left at 20 degrees.
Examination of the limbs was normal in terms of tone, power, reflexes, and sensation.”[18]
[18]PCB 143.
77Mr Chandrasekaran diagnosed an L4-5 disc protrusion, sustained on 3 February 2021[19] and exacerbated in the March incident. Mr Chandrasekaran opined that Mr Bakhsh was unfit for his pre-injury duties, but noted he was on a return-to-work plan, and hoped he would progress with physiotherapy. Mr Chandrasekaran’s report is now somewhat dated and of limited assistance in the resolution of this application.
[19]The 3 February 2021 date was the incorrect date that Mr Bakhsh provided in his Worker’s Injury Claim Form lodged on 15 May 2021. The correct date was 18 September 2020.
Mr Roy Carey, orthopaedic surgeon
78Mr Bakhsh tendered a report from Mr Roy Carey dated 18 July 2023. Mr Carey examined Mr Bakhsh that day at the request of the VWA for the purpose of an impairment assessment.
79Mr Bakhsh reported that he took Lyrica and Tramadol and used occasional heat packs at home. He was about to start seeing a new physiotherapist. Mr Bakhsh indicated that he still had low back/lumbosacral area discomfort over a wide area from the upper buttocks to just below his chest. The pain was constant but varied in intensity according to activity. He reported that his sleep was occasionally disturbed by pain, and he awoke stiff and sore every morning. Mr Bakhsh described occasional anterior thigh “numbness”. He needed his wife to dry his feet, put on his socks and shoes, and cut his toenails. He had a 30-minute driving tolerance.
80Mr Bakhsh reported that his back pain started in the incident of 3 February 2021.[20] After that incident, he was treated with simple medications and physiotherapy but had “ongoing low back discomfort”. He had been able to return to his pre-injury duties well before the March incident.
[20]Ibid.
81On examination, Mr Carey relevantly found as follows:
“… He walked with no limp and could tip toe and heel walk with no obvious weakness. Standing, the pelvis was level and the spine posture was normal when viewed from the back and the side.
There was diffuse tenderness from the mid-lumbar region to, and including, the back of the sacrum. This tenderness extended to both sides, and up to about as far as the upper lumbar region.
Forward flexion was not possible unless he supported his weight using his right arm on the adjacent examination couch. It was difficult therefore to get any impression of deformity, although standing, there seemed to be an increased lower thoracic/thoracolumbar kyphosis. I could not definitively diagnose a scoliosis clinically.
The lordosis however completely reversed and he was able to touch his kneecap with his left fingers.
Extension however was most markedly diminished. No paraverbterbal (sic) spasm was seen or palpated with any movement.
… no muscular wasting.
Strength was normal in all lower limb muscle groups.
Pin prick sensation was reduced in acuity all over the left lower limb distal to the groin …
Seated, straight leg raising was to 90° (no tension signs), reflexes at knees and ankles were brisk and symmetrical, plantars were downgoing and there was no clonus.”[21]
[21]PCB 149.
82Mr Carey noted the range of motion observed at the time of examination was consistent with Mr Bakhsh’s observed behaviour during the consultation. He said that “Mr Bakhsh seemed a pleasant and straightforward witness to his complaints with no evidence of embellishment”.
83Mr Carey diagnosed an aggravation of previously asymptomatic lower lumbar degenerative change in the incident on 3 February 2021, and then further aggravated in the March incident. There were no verifiable radicular complaints. Mr Carey categorised the impairment as DRE Lumbosacral Category II: Minor Impairment. He opined that the prognosis was for continued discomfort into the foreseeable future.
Dr Philip Mutton, occupational physician
84Mr Bakhsh tendered a report from Dr Philip Mutton dated 5 June 2024. Dr Mutton examined Mr Bakhsh that day at the request of the VWA.
85Mr Bakhsh reported that he restricted his driving to a minimal amount, up to 15 minutes. He reported that he had not worked since the incident. He took Lyrica daily, and Endone and Tramadol as needed for more severe pain. Mr Bakhsh said he was looking for a new physiotherapist and had not had physiotherapy treatment in 2023 or 2024.
86Dr Mutton did not refer to the September incident in his report.
87The tendered report did not include a schedule of the material provided to Dr Mutton.
88Dr Mutton reported that Mr Bakhsh continued to complain of mid lumbosacral pain, extending superiorly to the thoracolumbar junction. There was some numbness over the left thigh, extending to the knee. His condition was worse with activity and reportedly had deteriorated over time. Mr Bakhsh reported that he was independent with his activities of daily living but needed his son to assist with activities involving bending such as putting on his shoes. His sleep was poor. He could walk for 30 minutes and sit for 20 to 30 minutes.
89On examination, Dr Mutton found:
“There was maintenance of the lumbar lordosis. He did sit throughout the interview and appeared comfortable. He was tender from [the] thoracolumbar junction down to the sacrum to moderate palpation. There was para-vertebral muscle spasm with left greater than right. He could forward flex to above the knees and laterally flex to above the knees limited by pain. He was unable or unwilling to undertake a squat. He could stand on tiptoes with support. Lower limb reflexes were brisk and symmetrical. There was altered sensation over the left lateral thigh, left lateral calf and anterior thigh. There was maintenance of power in terms of big toe dorsiflexion and ankle dorsiflexion. Straight leg raising was 90 degrees left and right.”[22]
[22]PCB 154.
90Dr Mutton diagnosed chronic low back pain with some elements of radiculopathy due to the incident. He opined that Mr Bakhsh was unfit for pre-injury duties but had the capacity for suitable employment, but it was unlikely he could work full-time hours. The starting point would be two days of three hours or similar. Dr Mutton opined that Mr Bakhsh “needs to be able to sit and stand and interchange. He should avoid bending at the waist”.[23] He noted that Mr Bakhsh had little in the way of transferable skills. His limited English was a barrier.
[23] PCB 155.
91Dr Mutton opined that Mr Bakhsh “could do some light work as a product assembler where he can sit and stand and interchange”.
Dr Clayton Thomas, rehabilitation and pain physician
92The VWA tendered a report from Dr Thomas dated 1 August 2024. Dr Thomas examined Mr Bakhsh on 30 July 2024 at the request of the VWA.
93Dr Thomas was given a history of the March incident only.
94Mr Bakhsh complained of constant lower backache, radiating to the left leg. He said he believed that an area of his lower back was turning green. His physiotherapist and his wife had confirmed this to him. Mr Bakhsh said his pain was in the middle of his lower back, to the left at L4-5. Mr Bakhsh said he experienced left leg numbness in the calf region. His back pain varied from “5 to 6/10” up to “10/10, which occurs mostly at nighttime and can last for up to a couple of days”.[24]
[24] Defendant’s Court Book (“DCB”) 23.
95Dr Thomas opined that the degenerative changes revealed in the MRI lumbar spine scan report dated 7 March 2023 were extremely minor.
96On examination, Dr Thomas found:
“He was a strong-looking man who had good general mobility and a normal gait.
He reported tenderness to the left at the L5 level and in the central region. Lumbosacral movements were nonspecifically reduced to 30%. Axial compression was negative but pelvic rotation was positive, reproducing back pain.
Neurologically, lower limb reflexes were present and symmetrical. He had nonspecific weakness of his left leg below the knee with weakness of tibialis anterior, plantar flexors and extensor hallucis longus. Straight leg raising in the seated position was unrestricted. In the lying position, it reproduced back pain in the left at 40°.
Straight leg raising on the right was unlimited.
…
There was no wasting of his left lower limb compared to the right lower limb. There was nonspecific numbness, nondermatomal involving the whole of the left leg.”[25]
[25]DCB 24.
97Dr Thomas opined that there were non-organic examination findings, and “the level of disability appeared to be much higher than I would have expected”. He was of the view that there was a non-organic component present which appeared to be significant and required further exploration.
98Dr Thomas opined that Mr Bakhsh had a capacity for suitable full-time employment. The restrictions were that he be able to alternate between sitting and standing, lifting predominantly waist to chest height, and pushing and pulling of an easily manoeuvred trolley of 20 kilograms. As to specific jobs, Dr Thomas opined that the roles of retail assistant, product assembler, delivery driver and security guard were reasonable and appropriate, subject to the restrictions he had outlined.
99Dr Thomas opined that Mr Bakhsh’s Lyrica and opiate medications needed to be tapered. Further, it was not reasonable for him to have hands-on treatment.
Dr Wan Zhang, orthopaedic surgeon
100Mr Bakhsh tendered a report from Dr Zhang dated 4 September 2024. Dr Zhang examined Mr Bakhsh that day at the request of his solicitors.
101Dr Zhang was told of the September incident and the March incident.
102Mr Bakhsh reported that he took Lyrica daily, Tramadol four to five times a week and Endone for severe flare-ups of pain. He attended weekly physiotherapy.
103Mr Bakhsh reported experiencing constant, fluctuating low back pain that worsened with activity. The pain radiated into his left leg, beyond the knee, and was accompanied by occasional numbness in his left leg. He reported experiencing flare-ups of intense back pain at least three to four times a week, “characterised by an aching sensation in his lower back” and reaching a level of “eight out of ten”.[26] Mr Bakhsh reported moderate difficulty with self-care, marked difficulty with household chores and shopping, marked difficulty with gardening and mowing, a driving tolerance of less than half-an-hour, marked sleep disturbance, marked difficulty in social and recreational activities, and a significant effect on intimate relations with his wife.
[26] PCB 90.
104On physical examination, Dr Zhang found as follows:
“Mr Bakhsh was a clear and straightforward historian, and he was cooperative with the physical examination. No abnormal illness behaviour was observed, characterised by either an excessive or inadequate response to symptoms.
…
On active range of motion of the lumbar spine, Mr Bakhsh reported pain. There was evidence of lumbosacral paravertebral tenderness and muscle spasm.”[27]
[27]PCB 92.
105Dr Zhang found reduced flexion, extension, right lateral flexion and left lateral flexion. Neurological examination of the lower extremities revealed no signs of radiculopathy or myelopathy. The straight leg raising test induced back pain but did not cause radiating pain down either leg.
106Dr Zhang’s primary diagnosis was degenerative lumbar spine disease including moderate L4-5 disc disease with extrusion, clinically categorised as chronic back pain with referred leg symptoms predominantly on the left.
107Dr Zhang opined that Mr Bakhsh’s “employment, compounded by the described incidents, [has] contributed substantially to his current back injury and the referred symptoms in his left leg”.
108Dr Zhang opined:
“The diagnosed back injuries and leg symptoms do have an organic basis, evidenced by MRI findings showing disc disease and nerve studies which, although returning normal results, coincide generally with the reported pain and symptoms consistent with the physical and diagnostic evaluations.”[28]
[28]PCB 94.
109Dr Zhang was of the view that Mr Bakhsh was unfit for his pre-injury employment and suitable employment because of his severe functional limitations, ongoing pain requiring regular medication, need for frequent rest and position changes, sleep disturbance, limited English and computer skills and lack of success in previous return to work efforts. Dr Zhang opined that there may be some very limited residual capacity to work “2-3 days per week, 3-4 hours per day”.
110Dr Zhang opined that the prognosis was likely fair.
Dr Robyn Horsley, occupational physician
111Mr Bakhsh tendered a report from Dr Horsley dated 12 September 2024, who examined him that day at the request of his solicitors.
112Dr Horsley noted that in his pre-injury role, Mr Bakhsh was one of two supervisors with a manager above him. During the season, there were up to 80 to 100 workers. His role was 50/50 – hands on/supervision.[29]
[29]PCB 103.
113Mr Bakhsh reported his current medication was Lyrica, twice daily, Tramadol, five to six times a week, Oxycodone each night, duloxetine each morning and mirtazapine each night.
114Dr Horsley noted that Mr Bakhsh’s verbal English skills were moderately good. His literacy skills were poor. His computer-based skills were poor.
115Mr Bakhsh reported experiencing constant but variable back pain ranging from “2 to 3 out of 10” to “9 to 10 out of 10”. He said the pain radiated down the left leg into the calf approximately once a week for one to three hours. He experienced an altered sensation over his anterior left thigh on a chronic basis. Stiffness in the mornings lasted for three to five minutes. He had significantly reduced functional tolerances and slept poorly.
116On examination, Dr Horsley found:
“… a flat affect … Clinical examination confirmed a level of fear avoidance behaviour.
There was touch sensitivity on light touch palpation in the lower lumbar spine, no paraspinal muscle spasm. There was mild loss of lumbar lordosis. There was considerable restriction of range of motion. Forward flexion was only 30°. Extension was 10°. Left and right lateral flexion, left and right lateral rotation were limited to approximately 10 to 15°.
… thigh circumference of 49.5cm on the left and 51cm on the right, and a calf circumference of 39cm bilaterally.
Peripheral nervous system examination revealed a reduction in light touch sensation over the left anterior thigh and a reduction in temperature sensation. The altered sensation was anterior and lateral, not specifically in the distribution of the lateral cutaneous nerve of the thigh. Otherwise, neurologically, he was intact. There was an element of collapsing weakness when examining the muscle groups of the left leg in a non-organic distribution. Vibration sensation was equal bilaterally. Reflexes were present and active bilaterally at the knees and ankles.
Straight leg raising was 70° bilaterally. … When attempting to walk on his toes, there were difficulties with balance. He was able to walk on his heels. His gait was not antalgic. When he was asked to squat, he put all his weight through his bilateral arms, but he was able to fully squat.”[30]
[30]PCB 105-106.
117Dr Horsley opined that Mr Bakhsh presented with ongoing mechanical back pain with no clinical radicular features. His functional tolerances were reduced, he was doing very little and was deconditioned. Significantly, she opined:
“I believe that Mr Bakhsh experiences intermittent mechanical back pain. However his level of disability has increased substantially with his level of inactivity, his level of deconditioning, his reduced functional tolerances, and his secondary significant mental health issues that need to be addressed.”[31]
[31]PCB 109.
118Dr Horsley opined that Mr Bakhsh had developed significant mental health issues and the Beck inventories she administered suggested severe depression with mild suicidal ideation and moderate to severe anxiety, with panic attacks approximately once a month.
119Dr Horsley opined that Mr Bakhsh would benefit from a multi-disciplinary pain management program to improve his functional tolerances and “education about the nature of his back condition”.[32] This should take place once his mental health was addressed. There was no place for interventional injections or “hands on” therapy.
[32] PCB 109.
120Dr Horsley stated that Mr Bakhsh would benefit from “… considered vocational counselling and some upgrading of skills to help him move into a less manual role. … He worked in a supervisory 50/50 ‘hands on’ role at the farm … He clearly has some managerial aptitude. Working in a supervisory role would be a potential goal.”[33]
[33]PCB 108. Emphasis in original.
121Dr Horsley identified the following restrictions:
· Avoidance of repetitive overreaching, repetitive pushing and pulling, truncal rotation, static postures involving the lumbar spine, working in awkward and confined spaces;
· Good manual handling technique even when lifting light items;
· Avoidance of lifting more than 12-15 kilograms except occasionally;
· Avoidance of lifting items up to 10-12 kilograms on a repetitive basis;
· Avoidance of using equipment with a vibratory component through the footplate.
122Dr Horsley stated that there needed to be considerable effort in managing Mr Bakhsh’s condition:
“… Mr Bakhsh is only 37 years of age. He has already been out of the workforce for three years. He believes that he has considerable disability. He needs education about the nature of his back injury and the importance of remaining active. Returning to the workforce would be in his best interests.
Once his mental health improves and his functional tolerances have improved, then any return to work will need to be within the restrictions as outlined above, probably in a more supervisory role … Any return to work initially, will need to be on a part time basis in the vicinity of 15 to 20 hours per week, and then depending upon his response to return to work and the critical physical demands of the role, his hours should be able to increase thereafter.
Mr Bakhsh has radiological evidence of organic pathology on the initial MRI in 2021, with annular fissures at L4/5 and L5/S1. His mechanical back pain is consistent with that radiology. However, his level of disability has increased substantially because he is deconditioned. He needs to be provided with proactive management and encouragement to return to the workforce.”[34]
[34]PCB 109.
123Dr Horsley opined that Mr Bakhsh had no current capacity for suitable employment by reason of his psychological condition. Once his mental health had improved, he needed to participate in a multi-disciplinary pain management program, on a one-to-one basis because of his language issues, to improve his functional tolerances. He required parallel vocational counselling, upgrading of his English skills and computer skills.
Dr Chris Grant, psychiatrist
124The VWA tendered a report from Dr Grant dated 17 April 2024. He examined Mr Bakhsh that day by Zoom at the request of the VWA.
125On mental state examination, Dr Grant found:
“He was lying on a bed at [a] 30 to 45°angle. There was no psychomotor slowing or agitation. He conveyed no distress, exhibiting a good range of that (sic) was well modulated and congruent with his thinking with no loss of emotional control.
He spoke and understood English well. Speech production and thinking processes were normal. Thought content was non-bizarre. There were no delusions. He was not suicidal. There were no signs of a psychotic illness.
There were no hallucinations.
Intellect was average and cognition was intact.”[35]
[35]DCB 20.
126Based on his review of various documents, Mr Bakhsh’s account of his symptoms and his presentation on mental state examination, Dr Grant opined that there was no diagnosable psychiatric disorder or mental illness, such as an Adjustment Disorder. Dr Grant noted that Mr Bakhsh complained of ongoing pain difficulties but was not of the view that a diagnosis of a Somatic Symptom Disorder with predominant pain was appropriate. He did not require any psychiatric or psychological treatment.
127On psychiatric grounds, Dr Grant opined Mr Bakhsh had a capacity for suitable employment.
Dr Nicholas Ingram, psychiatrist
128Mr Bakhsh tendered a report from Dr Ingram dated 20 September 2024. Dr Ingram examined Mr Bakhsh by Zoom that day at the request of his solicitors.
129Dr Ingram noted there was no prior history of psychiatric problems.
130On mental state examination, Dr Ingram found:
“His behaviour was appropriate and there was no evidence of him being in pain during the interview or of any psychomotor retardation. He spoke clearly and answered questions appropriately and was able to give a full history.
His affect was depressed and there was a decrease in reactivity and engagement. There was a preoccupation with his pain and depressive themes, though there was no formal thought disorder, or perceptual abnormality and his memory, concentration and intelligence seemed normal and he had reasonable insight.”[36]
[36]PCB 114.
131Dr Ingram diagnosed a chronic Adjustment Disorder with Depressed Mood and Anxiety. Dr Ingram further opined:
“Mr Bakhsh’s main problem is his chronic pain and at this stage it does not seem likely that there will be much further improvement in his pain. In the absence of a clear diagnosis for his pain it is possible that he has a chronic pain disorder. This is a complex condition with biological, psychological, environmental, and cultural factors all contributing to its development and the fact that it is not entirely biological does not make it less real than other pain … .
Psychologically he is severely depressed and this seems to be getting worse with time. …
…
In regard to work, not only is Mr Bakhsh incapable of working at the current time because of his pain, but I think he would be unable to work in any capacity because of his depression and the impact that this has on his motivation, concentration and energy levels and I think this is likely to continue into the indefinite future unless there is an improvement in his pain.”[37]
(emphasis added)
[37]PCB 115.
Was Mr Bakhsh a reliable witness?
132Senior Counsel for the VWA submitted that there were a number of aspects of Mr Bakhsh’s evidence which were “entirely unacceptable”:[38]
(a) Mr Bakhsh’s evidence about his work history and prior earnings:
(i)Mr Bakhsh did not mention in his affidavits that he had been employed by North Star Health Care Pty Ltd (an NDIS provider) (“North Star”), in 2020. In evidence-in-chief, he said he undertook support work for four hours a day, six days a week for approximately eight to nine months. He said he did that at the same time as the farm work for the employer. He said “after work I would go there”. Mr Bakhsh said he stopped doing this work after he hurt his back. In cross-examination, Mr Bakhsh said he worked 21 hours a week and was paid about $1,620 nett per fortnight. The gross income from North Star in Mr Bakhsh’s taxation return in the 2019/2020 financial year was just $8,580. No other income from North Star was declared in Mr Bakhsh’s taxation returns between 1 July 2017 and 30 June 2024;
(ii)Mr Bakhsh’s 2019/2020 taxation return did not include the income earned working for a labour-hire company during the employer’s harvest in 2020;
[38]T55.
(b) Mr Bakhsh claimed in his affidavits that his back pain had significantly affected his intimate relationship with his wife in circumstances where he and his wife had been separated under one roof since 2019;
(c) Mr Bakhsh’s evidence that he had developed a green patch on his lower back by reason of his injury was either dishonest or unreliable;
(d) The surveillance footage of March 2024 and June 2024: “acknowledging that it was only a brief snippet of film, … painted a completely different picture” of Mr Bakhsh’s ability to flex his lumbar spine than he revealed to examining doctors and in his evidence.[39] When examined, Mr Bakhsh demonstrated a very limited ability to flex of between 10 to 30 degrees. In the surveillance footage, it was submitted Mr Bakhsh was seen to bend fully and then stand upright in a full, free and fluid motion, with no sign of pain or difficulty.
[39] T59.
133Senior Counsel for Mr Bakhsh submitted his evidence should be accepted. There was no medical evidence suggesting that Mr Bakhsh was consciously exaggerating or embellishing his presentation. The surveillance footage was of little assistance. It was short and not continuous. Further, the VWA had not chosen to provide it to any medical practitioner for comment.
134Senior Counsel for Mr Bakhsh submitted that the attack upon Mr Bakhsh regarding his tax affairs did not bear scrutiny. Mr Bakhsh declared his earnings from North Star in his 2019/2020 taxation return and there would be no reason not to declare it the following year. It could be oversight, error, or reflect that Mr Bakhsh did not work for that organisation in the following tax year and had been mistaken about when he worked for North Star.
135Senior Counsel for Mr Bakhsh submitted that Mr Bakhsh and his wife were separated under one roof, but according to his wife, they were trying to repair their relationship for the sake of their children. Senior Counsel submitted this did not exclude a continuing intimate relationship between the couple which had been impacted by Mr Bakhsh’s back injury. The VWA had chosen not to seek leave to cross-examine Mr Bakhsh’s wife.
136Senior Counsel for Mr Bakhsh submitted that Mr Bakhsh seemed convinced that he has a green patch on his back. Accepting that it could not be seen when his lower back was observed in Court, Mr Bakhsh’s belief otherwise was not “a strike against the plaintiff’s credit”.[40]
[40] T84-85.
137Insofar as the VWA were suggesting that Mr Bakhsh was feigning his disability, such a suggestion was at odds with his medication use which included Tramadol, Endone and Lyrica.
Findings on reliability
138The reliability of a plaintiff’s evidence can be of great importance in applications such as this. Often, the opinions of medical practitioners are “to a considerable extent dependent upon the accuracy of the claimant as historian”.[41]
[41]Mobilio v Balliotis [1998] VR 833 at 836.
139I bear in mind that English is not Mr Bakhsh’s first language. He gave evidence with the assistance of an interpreter in Court and was assisted by an interpreter when seen by doctors who did not speak his native language.
140I find that Mr Bakhsh was a poor historian, and aspects of his evidence were unsatisfactory for the following reasons.
141First, Mr Bakhsh’s evidence as to his occupational history. There was no satisfactory explanation for the absence of any reference to Mr Bakhsh’s NDIS work in his affidavits. I accept his oral evidence that he did this work for approximately eight or nine months, alongside his work for the employer. He stopped performing the NDIS work in October or November 2020. The work involved caring for a patient, primarily giving food and medication via syringe.[42] The declared gross earnings from that work in the agreed amended summary of taxation returns was $8,580 in the 2019/2020 year. Mr Bakhsh’s evidence as to the period of that employment (eight or nine months) and his net fortnightly pay ($1,000 to $1,600), would have led to a considerably larger sum than $8,580 by way of gross earnings. During cross-examination, Mr Bakhsh said that the work he did for North Star was done under his ABN. Inconsistently, Mr Bakhsh also said that he was paid net of tax. There was no explanation as to why some of the work for North Star was performed as an employee and some through an ABN.
[42]T13.
142Mr Bakhsh’s capacity to obtain and perform the NDIS work was relevant to an assessment of his vocational capacity and skills. The evidence about it was inadequate. None of the doctors who provided opinions, including three occupational physicians, had a history of that work.
143Second, I found Mr Bakhsh’s evidence regarding the impact that his back injury had on his intimate relationship with his wife misleading. They had been separated under one roof since 2019, yet this was not mentioned in Mr Bakhsh’s affidavits. I reject Senior Counsel for Mr Bakhsh’s submission that the reference to an intimate relationship in Mr Bakhsh’s affidavit was unclear, and it might have referred to “sitting on the couch watching television together holding hands. Going for a walk.”[43] It was clear in context that the reference to an intimate relationship was to their sexual relationship, particularly given the mention of libido.
[43]T84.
144I found Mr Bakhsh’s response when the apparent contradiction between his evidence and the reality of his relationship was put to him unconvincing.[44]
[44]T22-T23.
145I am fortified in my views on this issue by the fact that Ms Zargar did not refer to their intimate relationship at all in her affidavit.
146Third, I find that Mr Bakhsh’s erroneous belief that he has developed a green patch on his lower back is not a matter that affects his credibility. It was clear that he genuinely believed this to be so. It does impact his reliability.
147Fourth, the brief surveillance footage taken on three days in 2024.
148I have carefully re-watched the surveillance footage in preparation of these reasons. On each of those three days, Mr Bakhsh was seen to move without apparent pain or restriction, and on two occasions displayed a capacity to bend or squat which was significantly greater than had been displayed to any medical practitioner:
(a) In the seven minutes of surveillance footage taken on 7 March 2024, Mr Bakhsh was seen to bend low from the waist into the passenger side of a four-wheel drive vehicle. He was otherwise seen walking and filling the vehicle with fuel;
(b) In the approximately 45 seconds of surveillance footage taken on 18 June 2024, Mr Bakhsh was seen to get out of the driver’s seat of a four-wheel drive vehicle. His wife got out of the front passenger seat. Mr Bakhsh took what appeared to be a car battery from the rear passenger seat and carried it towards his house in his right hand. Mr Bakhsh moved in an apparently free manner and carried the battery without any outward sign of difficulty;
(c) In the approximately one minute of surveillance footage taken on 19 June 2024, Mr Bakhsh was seen to squat or crouch low into the driver’s side of a small vehicle. Mr Bakhsh then stood and bent into the driver’s side of the vehicle briefly, before resuming a standing position. Mr Bakhsh then sat in the driver’s seat of the vehicle.
149Mr Bakhsh’s ability to bend forward and squat when examined by medical practitioners was very limited. When examined by Mr Carey in July 2023, Mr Bakhsh was reportedly unable to forward flex without supporting his weight on the examination couch. When examined by Dr Mutton on 5 June 2024, Mr Bakhsh was reportedly unwilling or unable to perform a squat, and forward flexion was limited to above his knees. When examined by Dr Horsley on 12 September 2024, Mr Bakhsh could only forward flex to 30 degrees. Allowing for the fact that Mr Bakhsh’s back pain is variable, the brief footage does cause me to have some doubts about the extent of Mr Bakhsh’s alleged limitations when compared to the movements displayed to doctors.
150However, I bear in mind that the duration of the surveillance footage was only 7.5 minutes, taken over three days in March and June 2024. Senior Counsel for Mr Bakhsh did not seek, and the Court was not provided with, any information as to the total time Mr Bakhsh was under surveillance, or whether there was other surveillance footage which was not shown. In the surveillance footage, Mr Bakhsh was not seen to perform any strenuous, repetitive or prolonged activity. Further, the VWA chose not to provide the surveillance footage to any doctors for comment.[45] I therefore attach only limited weight to it.
[45]Church v Echuca Regional Health (2008) VR 566, at paragraph [100].
151I make no adverse findings about the accuracy or otherwise of Mr Bakhsh’s taxation returns.
152For the above reasons, I have reservations about Mr Bakhsh’s reliability and look for objective evidence to determine the nature and extent of his impairment consequences.
Is there a substantial organic basis for Mr Bakhsh’s claimed lumbar spine impairment consequences?
153I am required to identify the injury sustained in the March incident and the impairment consequences which flow from that injury. As Mr Bakhsh’s application relates to the impairment consequences of a physical injury, I must exclude the psychological or non-organically based pain and suffering consequences.
154Once the nature of the injury is determined, it is then necessary to consider whether Mr Bakhsh has established that there is a substantial organic basis for his claimed impairment consequences. This is the first step in the two-step approach to disentangle physical and psychological pain and suffering consequences approved by Maxwell ACJ in Meadows v Lichmore Pty Ltd.[46]
[46][2013] VSCA 201, at paragraphs [21]-[22].
155I accept Mr Bakhsh’s evidence that he suffered lower back pain since shortly after the September incident, but he had been able to return to his pre-injury duties, and his lower back pain was “minimal” just prior to the March incident. The injury sustained in the March incident therefore was an aggravation of previously minimally symptomatic degenerative change in Mr Bakhsh’s lumbar spine.
156Senior Counsel for Mr Bakhsh submitted that a Jones v Dunkel [47] inference ought to be drawn in light of the VWA’s unexplained failure to tender three reports from Dr Umberto Boffa, occupational physician, dated 22 February 2023, 6 September 2023 and 14 September 2023. I infer that those reports would not have assisted the VWA’s case, and I more readily accept the evidence tendered by Mr Bakhsh about which Dr Boffa could have opined.
[47](1959) 101 CLR 298.
157Senior Counsel for Mr Bakhsh submitted that Mr Bakhsh did not limit his case to an aggravation of degenerative changes, and there was medical evidence to suggest that Mr Bakhsh had suffered a skeletal, or disc injury, to his lumbar spine in the March incident.
158I prefer Dr Akil’s diagnosis that Mr Bakhsh suffers from discogenic lower back pain, and his opinion that the injury is an “aggravation of early degenerative changes”. That diagnosis accords with the diagnoses of the orthopaedic surgeons Mr Carey and Dr Zhang. I prefer the opinions of the treating neurosurgeon and the orthopaedic surgeons on this issue given their speciality.
159There are cases where imaging findings can provide objective evidence of injury and the pain arising from it.[48] This is not such a case.
[48]Dordev v Cowan & Ors [2006] VSCA 254, at paragraph [19].
160The findings on imaging of Mr Bakhsh’s lumbar spine form part of the picture in determining the nature of the compensable injury. However, Senior Counsel for Mr Bakhsh accepted, and I find, that the results of imaging of Mr Bakhsh’s lumbar spine could be productive of no symptoms, lots of symptoms and everything in between.[49]
[49]T86.
161Senior Counsel for Mr Bakhsh submitted that there were several objective findings made by medical practitioners, which support the view that there is an organic basis for Mr Bakhsh’s symptoms.
162In September 2021, Dr Mehr noted spasm in the lower back, especially in the left paraspinal area. In June 2024, Dr Mutton noted paravertebral spasm. In September 2024, Dr Zhang found muscle spasm.
163I accept that those practitioners found muscle spasm on those occasions. That is an objective finding. Other practitioners, namely Dr Akil, Dr Chandrasekaran, Mr Carey, Dr Thomas and Dr Horsley, did not find muscle spasm on examination. The most likely explanation for these different findings is that Mr Bakhsh’s muscle spasm is intermittent.
164In July 2023, Mr Carey noted no thigh wasting (thighs 58 centimetres in circumference on both sides). In June 2024, Dr Mutton did not describe any assessment or finding of muscle wasting during his examination. In August 2024, Dr Thomas specifically noted no wasting of the left lower limb compared to the right. In September 2024, Dr Zhang did not describe any assessment or finding of muscle wasting in the lower limbs. In September 2024, Dr Horsley recorded a reduced thigh circumference in the left thigh (49.5 centimetres on the left as compared to 51 centimetres on the right). Dr Horsley is the only practitioner who made such a finding. Mr Bakhsh’s thigh circumference reduced significantly in the twelve months between Dr Carey’s examination and Dr Horsley’s examination, presumably reflecting significant weight loss in that time.
165I am unable to resolve the difference between Dr Horsley’s finding of a reduced thigh circumference and the other findings that there is no such discrepancy on the evidence before me. In the circumstances, I do not place any significant weight on that finding.
166Although I accept Dr Zhang’s opinion that Mr Bakhsh’s condition is an aggravation of pre-existing degenerative change, I do not accept his opinion as to Mr Bakhsh’s presentation and impairment for the following reasons:
(a) First, he noted that Mr Bakhsh described periodic numbness and sensations of heaviness in his left leg extending beyond the knee to the calf. Dr Zhang stated that he performed a neurological examination of Mr Bakhsh’s lower extremities but did not describe any assessment of the claimed numbness or weakness in his left leg;
(b) Second, Dr Zhang noted that straight leg raising “induced back pain” but did not describe whether the test was performed seated or lying down, nor whether full straight leg raising was achieved;
(c) Third, Dr Zhang stated there was “evidence of lumbosacral paravertebral tenderness” without identifying what that evidence was;
(d) Fourth, it is not clear what Dr Zhang meant by “assessing muscle power in the hip and knee was challenging due to pressure and pain in the back”. Dr Zhang did not state whether muscle power was or was not assessed, or the results of that assessment. Dr Zhang did not comment on the significance or otherwise of this assessment being “challenging”;
(e) Fifth, Dr Zhang’s opinion that the nerve studies (which returned normal results) was one of the matters that coincided generally with Mr Bakhsh’s reported pain and symptoms does not make sense.
167From early in his consultations, Dr Mehr advised Mr Bakhsh to reduce, then stop, taking Endone and Tramadol. This appeared to have been achieved during 2022. By March 2023, Dr Mehr recommended that Mr Bakhsh see a bariatric surgeon to assist with weight loss, that he walk for at least an hour every day, and see a psychologist as his psychological condition was deteriorating.
168The most recent material from a treating specialist is the report of Dr Akil dated 23 September 2024, who last had contact with Mr Bakhsh in March 2023. There are a number of important aspects to this report.
169First, Dr Akil noted that Dr Mehr had prescribed Norflex in place of Tramadol and Endone. I infer that Dr Akil concurred with the view that medications such as Tramadol and Endone were not appropriate for Mr Bakhsh’s condition.
170Second, Dr Akil noted that Mr Bakhsh claimed to suffer from altered sensation throughout his whole left lower limb which was non-dermatomal.
171Third, Dr Akil noted deep tendon reflexes were all present and normal.
172Fourth, Dr Akil was positive about some likely suitable employment options.
173Fifth, although Dr Akil opined there were “organic bases (sic) of his back injury”, he was not asked, and did not opine, whether there was a substantial organic basis for Mr Bakhsh’s claimed impairment consequences.
174I prefer the opinion of Dr Thomas that there is a significant non-organic component to Mr Bakhsh’s claimed impairment consequences. I find Dr Thomas’ opinions are in keeping with findings of the treating doctors, Dr Mehr, Dr Brasier and Dr Akil, and also, many of the findings of Mr Carey and Dr Horsley.
175During closing submissions, Senior Counsel for Mr Bakhsh submitted that Dr Thomas’ diagnosis of non-specific low back pain was against the weight of the evidence, and his opinion ought not to be accepted. It was submitted that a possible reason for this was that Dr Thomas only had the report of the MRI scan of Mr Bakhsh’s lumbar spine performed on 6 March 2023, and not the earlier imaging. It was submitted:
“But what’s critical is that [Dr] Thomas hasn’t had all the scans, and the other doctors have, and the other doctors come to a different diagnosis. For example [Dr] Wang, or [Mr] Akil, aggravation of degenerative changes.”[50]
[50]T86.
176In my view, this criticism of Dr Thomas’ report lacks true substance in view of the opinion of the treating neurosurgeon, Dr Akil, that the MRI findings showed a continuous similar picture.
177Dr Thomas is the only doctor who was given a history of Mr Bakhsh believing there was a green patch on his back. In his oral evidence, Mr Bakhsh said his wife had told him of it, and his physiotherapist had confirmed it. No report was tendered from the physiotherapist, and Ms Zargar did not mention this in her affidavit. There was no medical opinion tendered explaining this phenomenon, and as I have said, the green patch was not evident on viewing Mr Bakhsh’s lumbar spine in Court.
178Dr Thomas made findings of nonspecific weakness and nondermatomal numbness in the left leg. A similar finding was made by Dr Akil, of nondermatomal altered sensation involving the whole left lower limb with no detected motor dysfunction. Dr Horsley also noted the altered sensation in the left leg was not in the distribution of the lateral cutaneous nerve.
179Dr Thomas found a difference in the results of the straight leg raising test performed seated, which was unrestricted, and in the lying position, which reproduced back pain in the left at 40 degrees. Although the axial compression test was negative, there was a positive result for pelvic rotation. There was a nonspecific reduction in lumbosacral movements.
180Mr Carey made findings in July 2023 of diffuse tenderness, normal strength in all lower limb muscle groups, and diffuse pin prick sensation all over the left lower limb, brisk and symmetrical reflexes and seated straight leg raising to 90 degrees
181Dr Thomas’ view that Mr Bakhsh’s medication regime required tapering, and that there was no place for synthetic or opiate analgesia is particularly within his expertise as a consultant in rehabilitation and pain medicine. I note that those views accord generally with the views of Dr Mehr, the treating rehabilitation physician.
182Dr Thomas’ view that it was not reasonable for Mr Bakhsh to continue with “hands on” treatment also accords with the views of Dr Horsley that there is no place for “hands on” therapy.
183In September 2024, Dr Horsley noted fear avoidance behaviour and an element of collapsing weakness when examining the muscle groups of the left leg in a non-organic distribution, intact reflexes, and no clinical radicular features. Dr Horsley was of the view that there were significant mental health issues. Although it is outside Dr Horsley’s expertise to opine as to psychiatric diagnoses, I accept her findings on examination and find that they support the view that there were significant non-organic factors relevant.
184I further note that Dr Ingram opined that if there was no clear diagnosis for Mr Bakhsh’s pain, it was possible that he suffered from a chronic pain disorder. Dr Ingram said that “biological, psychological, environmental and cultural factors” contributed to this condition.[51] I understood Dr Ingram to mean that there were possibly non-psychological factors affecting Mr Bakhsh’s presentation.
[51] PCB 115.
185I generally accept the evidence of Mr Bakhsh’s wife, although it was cast in broad terms and did not differentiate between Mr Bakhsh’s functioning after the September incident and the March incident. However, Ms Zargar’s evidence is of only limited assistance in determining the issue of whether there is a substantial organic basis for Mr Bakhsh’s claimed impairment consequences.
186I accept that there is likely an organic basis for some impairment consequences arising from Mr Bakhsh’s aggravation injury to his lumbar spine. However, on the medical evidence I prefer, I find that Mr Bakhsh has not satisfied his onus to establish that there is a substantial organic basis for his claimed impairment consequences.
Can Mr Bakhsh’s claimed lumbar organic impairment consequences be separated from those referable to a psychological or non-organic response?
187Having determined that I am unable to answer the first question in the affirmative, I must consider whether I am able to disentangle the claimed lumbar impairment consequences referable to physical impairment from those referable to a psychological or non-organic response.
188Neither counsel addressed this issue.
189The medical evidence does not enable me to disentangle the claimed lumbar impairment consequences referable to physical impairment from those referable to a psychological or non-organic response.
190Given that I am unable to determine which of Mr Bakhsh’s claimed impairment consequences are due to his physical impairment, I cannot assess whether they satisfy the statutory threshold. I am also unable to determine what impact, if any, they have upon his capacity for employment.
191I will now consider Mr Bakhsh’s claim that he suffers from a mental or behavioural disturbance or disorder with severe impairment consequences.
What permanent impairment consequences are due to psychological injury consequent upon the compensable injury?
192The case with respect to the sub-paragraph (c) claim was put on the basis that Mr Bakhsh suffers from a Major Depressive Disorder or chronic Adjustment Disorder with Depressed Mood and Anxiety. Senior Counsel for Mr Bakhsh did not submit in the alternative that Mr Bakhsh suffered a psychological pain condition.
193The psychological impairment consequence relied upon by Senior Counsel for Mr Bakhsh was an inability to work in any suitable employment.[52]
[52]T97.
194In his first affidavit, sworn on 16 January 2024, Mr Bakhsh deposed his back pain “gets me down at times. I get agitated and frustrated, particularly when my back pain is bad.”[53] He said he missed working and worried about his financial future. Mr Bakhsh said he had been referred to a psychiatrist in August 2023 but had not yet attended.
[53]PCB 14.
195In his second affidavit sworn on 23 September 2024, Mr Bakhsh relevantly deposed:
“My mental health has deteriorated due to my ongoing low back pain and the restrictions placed on my life because of my back pain. Further to my first affidavit, I met with a psychiatrist, Dr Owais Sharif, by telehealth on 28 February 2024. I spoke to him on one occasion. More recently, my GP, Dr Albatat, told me that he will be referring me to a psychologist.”[54]
[54]PCB 18.
196In opening, Senior Counsel for Mr Bakhsh said that Mr Bakhsh was prescribed Cymbalta and mirtazapine for his mental health. Mr Bakhsh did not depose that he took any medications for his psychological condition. He did not give any oral evidence on this issue.
197In her affidavit, Ms Zargar said:
“Jafar’s mood is a lot lower than before he hurt his back. He is not normal like before. His personality has changed since he hurt his back.”[55]
[55]PCB 23.
198I have outlined the tendered evidence from the psychiatrists, Dr Sharif, Dr Grant and Dr Ingram, above.
199Dr Horsley noted Mr Bakhsh’s current medication included duloxetine and mirtazapine.[56] Dr Hosley noted Mr Bakhsh was due to have his first appointment for psychological therapy on 20 September 2024.[57]
[56]PCB 102.
[57]PCB 107.
200Mr Bakhsh reported to Dr Ingram that he felt the mirtazapine and duloxetine “had made little difference to his situation”.[58]
[58]PCB 114.
201Mr Bakhsh told Dr Grant that he took “medication” for his mental health, which made no difference.
Findings
202In Petrovic v Victorian WorkCover Authority,[59] the Court of Appeal said:
“As has been said many times before, in a personal injury proceeding, the evidence of the plaintiff (and whether that evidence is accepted by the trier of fact) is often critical to the success or otherwise of the plaintiff’s proceeding. This is particularly so in cases involving psychiatric injuries. Additionally, in such cases, the opinions of medical experts (and the question of whether those opinions should be accepted) are often also heavily dependent upon the acceptance of the plaintiff’s account. Put shortly, the opinion of any particular expert opinion in a case like the present is usually only as good as the underlying history upon which it is based.”
[59][2018] VSCA 243 (‘Petrovic’), at paragraph [74].
203The evidence as to Mr Bakhsh’s psychological condition was unsatisfactory.
204The treating material was scant.
205Dr Albatat did not refer to Mr Bakhsh’s psychological condition at all in his report.
206Mr Bakhsh has only seen Dr Sharif once, in February 2024, and his report is short. There was no evidence that Mr Bakhsh had been referred to Dr Sharif for any review of his medications or his condition. Dr Sharif did not proffer any opinion about work capacity.
207There was no evidence that Mr Bakhsh had consulted with a psychologist as planned, and no report was tendered from a treating psychologist.
208Mr Bakhsh and his wife deposed to psychological consequences in brief terms in their affidavits.
209Dr Horsley noted a history of trauma in Syria before coming to Australia. It is not clear whether Dr Horsley is referring to the bomb blast which resulted in Mr Bakhsh having a small piece of shrapnel in his right foot or something else. No other practitioner noted a history of prior trauma in Syria and it was not explored in evidence.
210No practitioner mentioned that Mr Bakhsh and his wife have been separated under one roof since 2019, and the impact, if any, that has had upon Mr Bakhsh’s psychological wellbeing.
211Mr Bakhsh described experiencing panic attacks to Dr Horsley and Dr Ingram. These were not mentioned in his affidavits, or in Ms Zargar’s affidavit. Dr Grant did not refer to this symptom being reported to him. Dr Sharif made no mention of panic attacks in his report. I am not satisfied on the evidence that Mr Bakhsh experiences panic attacks or, if he does, that such panic attacks are related to this claim.
212As stated above, there are some issues with the reliability of Mr Baksh’s evidence.
213The differing findings and diagnoses of Dr Sharif, Dr Grant and Dr Ingram demonstrate that psychiatrists are particularly reliant upon the history and presentation.
214Dr Grant’s opinion that Mr Bakhsh did not have a diagnosable psychiatric condition is understandable given his findings on mental state examination.
215As I have said, I do not accept Dr Horsley’s diagnosis of Mr Bakhsh’s psychiatric condition and the consequential impairment. Dr Horsley is an occupational physician and her opinions on this issue are beyond her speciality.
216The plaintiff’s case was put primarily on the basis of the opinion of Dr Ingram.
217I do not accept Dr Ingram’s opinion that Mr Bakhsh has no work capacity by reason of his psychological condition.
218First, I note that the stated reason for this opinion was:
“… I think he would be unable to work in any capacity because of his depression and the impact that this has on his motivation, concentration and energy levels and I think this is likely to continue into the indefinite future unless there is an improvement in his pain.”[60]
[60]PCB 115.
219On mental state examination, Dr Ingram noted “no formal thought disorder, or perceptual abnormality and his memory, concentration and intelligence seemed normal, and he had reasonable insight”.[61] I am unable to reconcile those findings with Dr Ingram’s opinion that Mr Bakhsh is permanently unfit for any suitable employment.
[61] PCB 114.
220Second, I have reservations as to Mr Bakhsh’s reliability as outlined above. As has been observed, medical opinions may have reduced weight if a plaintiff is an inaccurate historian or prone to exaggeration.[62]
[62]Papamanos v Commonwealth Bank of Australia [2014] VSCA 167, at paragraph [33]; Petrovic (supra), at paragraph [74].
221Third, Dr Ingram’s opinion as to permanence is unconvincing given his recommendation that a different antidepressant be trialled, and that Mr Bakhsh should consult a psychologist. His opinion on this point is also unpersuasive in circumstances where Mr Bakhsh has seen a treating psychiatrist once, has only recently been referred to a psychologist and may or may not have seen them.
222I am not satisfied that Mr Bakhsh has an incapacity for suitable employment by reason of any consequential psychological condition.
223Whilst I find that it is likely that Mr Bakhsh has developed a mental or behavioural disturbance or disorder consequent upon his lower back aggravation injury, Mr Bakhsh has failed to satisfy his onus to identify the permanent impairment consequences which result from that psychological condition.
224It follows that Mr Bakhsh has not proven that the permanent impairment consequences of his mental or behavioural disturbance or disorder cause any incapacity for suitable employment or are “severe” in the requisite sense.
Conclusion
225Mr Bakhsh has not satisfied his onus to establish that there is a substantial organic basis for his claimed lumbar spine impairment consequences. I am unable to identify which of the claimed impairment consequences are referable to an organic lumbar spine injury.
226Further, Mr Bakhsh has failed to establish the psychiatric or psychological consequences consequent upon injury sustained in the March incident and has failed to establish that such consequences are “severe”.
227Mr Bakhsh’s application is therefore dismissed.
228I will hear the parties on the issue of costs.
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