Banadaki v Staff Australia Payroll Services Pty Ltd
[2019] VCC 1451
•13 September 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-18-03130
| MOHAMMAD SALEH DEHGHAN BANADAKI | Plaintiff |
| v | |
| STAFF AUSTRALIA PAYROLL SERVICES PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE GINNANE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 and 20 May 2019 | |
DATE OF JUDGMENT: | 13 September 2019 | |
CASE MAY BE CITED AS: | Banadaki v Staff Australia Payroll Services Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1451 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious Injury – injury to lower back – pain and suffering and loss of earning capacity –residual work capacity – suitable employment
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013 (Vic)
Cases Cited:Faryna v Chorny [1952] 2 DLR 354; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
Judgment: Application successful. Leave is granted in respect to pecuniary loss damages and pain and suffering damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr N Horner with Mr P Haddad | Zaparas Lawyers |
| For the Defendant | Mr J Batten | IDP Lawyers |
HIS HONOUR:
Introduction
1 The plaintiff applied for the grant of a serious injury certificate to commence proceedings at common law for pain and suffering and for economic loss pursuant to s325 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”). He relied on paragraph (a) and alleged that he sustained a physical injury and/or loss of function to his lower spine. He alleged that his injury occurred throughout the course of his employment from in or about 18 June 2015 to in or about 17 January 2016 with Staff Australia Payroll Services Pty Ltd, a labour hire agency. The plaintiff had been on the books of other labour hire companies before the period of time that encompassed his claim.
2 The plaintiff was represented by Mr Horner and Mr Haddad of counsel and the defendant was represented by Mr J Batten of counsel.
Issues
3 The issues that required determination are:
·First, the identification of and extent of the plaintiff’s injury. The defendant submitted that it is probable that the plaintiff suffers from a “bilateral L5 pars defect”, in line with a medical opinion of the plaintiff’s treating neurosurgeon Mr Vellore.[1] Thus, the defendant contended what the plaintiff suffers is a constitutional and not a functional work injury and his application should fail on first principles. Mr Horner focussed largely on the plaintiff’s back as a work injury that arose out of or in the course of his employment with the employer.
·Second, whether the plaintiff has a residual work capacity.
·Third, if so, whether the plaintiff established that he does not have a capacity for suitable employment.
·Fourth, the extent to which, if at all, the plaintiff’s credit has been impugned and, as a result, impinges on the reliance that can be had of his account of how and when he suffered injury and of the serious consequences claimed by him to have been occasioned from the work injury.
·Fifth, if relevant, has the plaintiff established a loss of earning capacity of 40 per cent or more according to the applicable test.
[1]Transcript (“T”) T14
4 Mr Batten submitted that the plaintiff’s credit was front and centre because of inconsistencies in his account of the onset of low back pain when considered in light of a prior medical history of back pain. Fundamentally, the defendant did not accept the plaintiff’s account that he had not suffered from low back pain prior to his employment with the employer.
5 The defendant also submitted that it was relevant to the question of the plaintiff’s credit to consider the circumstances surrounding the withdrawal of his services by the employer and the timing of it relative to the alleged injury. The plaintiff’s account in evidence was that he had been unable to work at a pace that had been required of him by his supervisor and he was told on 12 January 2016 that his services were no longer required. However, the defendant’s case was that the plaintiff’s services were no longer required after 12 January 2016 because of complaints of misconduct it had received from its customers concerning him.
6 Finally, the defendant submitted that the plaintiff has a capacity for suitable employment whereas the plaintiff contended he has no capacity for suitable employment.
The Plaintiff
7 The plaintiff made two affidavits in support of his serious injury application[2]. The following facts are primarily distilled from them.
[2]Affidavits affirmed 9 March 2018 and 8 May 2019
8 The plaintiff was born in Iran. He is thirty-two years of age. His native language is Farsi and he lived in the city of Yazd.[3] He attended the Islamic University of Yazd and studied for a degree in electrical engineering.[4] He undertook four years of the degree, but did not complete the fifth and final year. Whilst attending University he played on the city water polo team. He said that he can no longer play water polo since his injury and this is a big loss for him by way of his enjoyment of life and was a matter of considerable emphasis in the proceeding.
[3]Plaintiff’s Court Book (“PCB ”) 11
[4]PCB 12
9 Whilst in Iran the plaintiff undertook some training in the English language.[5] In giving his oral evidence in this application, the plaintiff was assisted by a Farsi interpreter. The plaintiff gave the majority of his answers in English, whilst others required the assistance and clarification of the interpreter.
[5]PCB 12
10 The plaintiff arrived in Australia as a refugee in June 2012. He was taken to Christmas Island and other places before he arrived in Melbourne in October 2012.[6]
[6]PCB 12
The Plaintiff’s employment history
11 The plaintiff obtained employment through Action Workforce, a labour hire company. From January 2014 through to October 2014, he worked at a mushroom farm in Mernda.[7] There, his work consisted of driving a forklift, shovelling soil and cleaning the yards with a high-pressure hose.
[7]PCB 13
12 In October 2014, the plaintiff described experiencing back, knee, shoulder and neck pain and he attended a general practitioner because of it. He explained that these aches and pains got better when he ceased the work on the mushroom farm.[8] The nature of his pain was the subject of cross-examination and ultimately submissions by both counsel as to whether it was some evidence of a low back condition.
[8]PCB 13
13 The work at the mushroom farm ceased. From November 2014 through to January 2015 the plaintiff worked as a forklift driver at a “Chemist Warehouse” facility, having been placed there by another labour hire company, Tailored Workforce.[9]
[9]PCB 13
14 In May 2015, the plaintiff experienced back, neck and shoulder pain for which he attended on a doctor at the Wells Medical Clinic. He was referred for physiotherapy treatment, but did not pursue it because “the pains got better”.
15 After a period of unemployment, the plaintiff commenced with Staff Australia Payroll Services (“Staff Australia”) on 18 June 2015 as a casual storeman and forklift driver.[10] Staff Australia secured the plaintiff a position working with Elite Logistics (“Elite”) in Altona North. This was a warehouse and supply business for wine.[11] At Elite, the plaintiff was required to stock the warehouse with boxes of wine for distribution to hotels and restaurants.[12] It was whilst in this work that the plaintiff alleges he suffered his injury.
[10]PCB 13
[11]PCB 13
[12]PCB 13
16 The plaintiff described his role at Elite in some detail. He said it required him to unload containers of wine by hand.[13] On some occasions, the containers comprised over 1000 boxes of wine.[14] The work involved bending, lifting, twisting and carrying boxes of wine.[15]
[13]PCB 14
[14]PCB 14
[15]PCB 14
17 He said he was working full-time hours usually in the order of seven and a half hours per day in addition to overtime[16] Monday to Friday.
[16]PCB 14
The injury
18 The plaintiff deposed that in August 2015 he became aware that his back had begun to hurt when undertaking what he described as heavy and repetitive lifting,[17] but he said he managed the pain by means of rest and applying heat to his lower back,[18] but he said the pain “never fully went away”.[19] In that sense, the experience of pain was different from the episodes he had experienced when working on the mushroom farm.
[17]PCB 14
[18]PCB 14
[19]PCB 14
19 The plaintiff deposed that on 16 October 2015 whilst he was moving boxes of wine from one style of pallets to another style of pallets:
“… my back locked and I experienced very severe lower back pain and, for the first time that I can recall, left leg pain.”[20]
[20]PCB 14
20 The plaintiff said that with the approval of his supervisor, Troy Newton, he left work early on 16 October 2015 and that evening he attended the “Wells Medical Clinic” and was told by Dr Tombeki, a general practitioner, to “rest and avoid aggravating movements”. He recommended the use of over the counter pain medication and to apply heat and Voltaren gel.[21] The record of entry from the Wells Medical Clinic for that consultation is consistent with the plaintiff’s evidence of his attendance and treatment.[22]
[21]PCB 14
[22]PCB 15
21 On his return to work the plaintiff said that Troy Newton thereafter had him undertake more delivery work and less warehouse work. Nonetheless, he described the delivery driving work as hard physical work that involved him delivering boxes of wine to pubs and restaurants around Melbourne and then unloading them by hand, placing them on a trolley, and wheeling the trolley into buildings and, on occasions, up and down stairs.[23]
[23]PCB 15
22 The plaintiff said that he had hoped in due course to obtain a lighter role as a supervisor and he thought that if he could hold on with the pain in his back until that came to fruition it would be alright.[24]
[24]PCB 15
23 The plaintiff continued undertaking delivery driving work until 28 December 2015. He resumed work on 5 January 2016. He said he worked the next four days for about seven-and-half hours respectively.[25] The plaintiff’s final day of work was 12 January 2016 when he was told by Troy Newton that he was no longer required on site because he had been rude to customers.
[25]PCB 15 (6, 7, 11 and 12 January 2016)
Post-employment
24 The next day, 13 January 2016, the plaintiff attended on Dr Tombeki because he said his back and leg pain was getting worse. Dr Tombeki’s note of that consultation is one of back pain and neck pain and a complaint of “hard work/job” and an account that the plaintiff’s pain was “worse in afternoon” together with radicular pain in the lower extremities.[26]
[26]PCB 15
25 The plaintiff deposed that he was also experiencing pain in his hands and neck. Radiological investigations followed on 19 January 2016, including an x-ray of his hands, and a CT scan of his lower back.
26 The plaintiff said that when he subsequently requested a separation certificate from Staff Australia, he explained that his back pain prevented him from performing any manual labour work and he was told that no work could be found for him if he was unable to perform manual labouring.
27 The plaintiff said as time passed his back and leg pain was increasing. He again consulted Dr Tombeki on 11 March 2016. He was prescribed Panadeine Forte and Lyrica.[27] On 24 March 2016, he attended the Werribee Hospital Emergency Department complaining of severe lower back pain.[28] He was discharged that day.
[27]PCB 16
[28]PCB 16
28 Dr Tombeki referred the plaintiff for physiotherapy for his back. The plaintiff commenced treatment on 9 June 2016.[29]
[29]PCB 16
29 Also in June 2016, the plaintiff was prescribed Tramadol for his back pain.[30]
[30]PCB 16
30 The plaintiff said his back pain worsened and that, following a physiotherapy session on 4 July 2016,[31] he was vomiting, and later that night he needed to attend the Emergency Department of the Sunshine Hospital.
[31]PCB 16
31 The plaintiff had multiple attendances on Dr Tombeki in the second half of 2016 including: twice in July 2016, one of which was for mental health reasons; and in August 2016 (again for psychological reasons and the provisions of a Mental Health Plan); and in December 2016 for back and leg pain, difficulty he encountered sleeping and for depression.[32] He was also at this time referred for radiological investigation of his back and neck.
[32]PCB 16
32 On 9 February 2017, the plaintiff was in such a bad way that it was necessary for him to attend the Sunshine Hospital Emergency Department with a “flare up of back pain” which he explained had occurred in the relatively benign setting of having been out walking.[33] He remained overnight under observation. He returned two days later, on 11 February 2017, and an MRI of his lumbar spine was performed.
[33]PCB 17
33 The plaintiff described his pain saying:
“The pain started in my lower back and then went down to my left buttock, down the front of my thigh to the knee and then to my foot.”[34]
[34]PCB 17
34 The plaintiff said that he experienced a massive increase in back and left leg pain on 6 March 2017,[35] and was taken by ambulance to Footscray Hospital where he remained until 11 March 2017, during which another MRI was performed on his lower back. He was also assessed by a Mental Health team and was prescribed Olanzapine, although he said he did not take it.[36]
[35]PCB 17
[36]PCB 17
35 On 13 March 2017, he said his “back and leg pain flared up” again and he returned to the hospital[37] and was sent home the following day.
[37]PCB 17
36 In October 2017, Dr Tombeki referred the plaintiff to the Melbourne Pain Group, and to a neurosurgeon, Mr Vellore,[38] whom the plaintiff saw initially on 18 October 2017. Mr Vellore ordered a fresh MRI of the plaintiff’s lower back and x-rays.[39] The plaintiff attended on Mr Vellore again on 15 and 29 November 2017. He suggested two treatment options to the plaintiff; an injection into his lower back, which would be a short-term measure only, or a fusion operation.[40]
[38]PCB 17
[39]PCB 17
[40]PCB 17
37 The plaintiff sought a second opinion from Mr Patrick Chan, neurosurgeon.[41] Mr Chan did not consider that the plaintiff required surgery at that time. The plaintiff has yet to come to surgery. It is, however, a real prospect.
[41]PCB 18
38 The plaintiff came under the care of a psychiatrist, Dr Gudarzi, and has been prescribed Anafranil for anxiety, depression and chronic pain.[42]
[42]PCB 18
39 The plaintiff did not pursue a claim for the grant of a serious injury certificate by reference to the existence of a mental disorder or disturbance.
February 2018 stabbing
40 In February 2018, the plaintiff was walking one night in Richmond, after having been at a nightclub, when he was stabbed in the chest, stomach and thigh.[43] He was taken by ambulance to the Alfred Hospital for surgery on his stomach.[44] He continued to consult his psychiatrist, Dr Gudarzi, to deal with the mental effects of the stabbing and its consequences that included a diagnosis of Post-Traumatic Stress Disorder. The stabbing was significant, but the plaintiff struck me as at pains to downplay its effect on him. His response to questions about it suggested to me that he was conscious of not wanting to give answers he thought might diminish the effects of his back in the assessment of his serious injury application.
[43]PCB 21
[44]PCB 21
2019 treatment
41 The plaintiff completed a six-week pain management program in early 2019.[45] In speaking about his back pain, he said that he continues to have “good and bad days”.[46] He said he experiences a constant level of back pain and he cannot predict whether it will increase or not.[47]
[45]PCB 21
[46]PCB 22
[47]PCB 22
Plaintiff’s medications
42 The plaintiff’s medication regime includes:[48]
[48]PCB 18 and 23
·Tramadol;
·Lyrica;
·Anafranil;
·Rexulti
·Clozapine;
·Propanol, as required; and
·Viagra as required.
43 The Tramadol assists with the plaintiff’s back pain and the Rexulti is prescribed for stress.[49] The Anafranil is prescribed for anxiety; Clozapine assists with sleep; and the Propanol assists with “sweating”, a side effect of the Anafranil.[50]
[49]PCB 23
[50]PCB 23
Pain and suffering consequences
44 The plaintiff deposed that in early 2015 he commenced playing competitive water polo in Australia. He said that water polo had been his real passion.[51] He aspired to one day represent Australia. The plaintiff said he attempted to play water polo once following his injury but that “I only lasted 5 minutes and have not tried this again.”[52] He said he had played the sport since he was 12 years old was “was very good at it.[53]” He explained that he misses it dearly.
[51]PCB 19
[52]PCB 19
[53]PCB 19
45 The plaintiff presently swims at the MSAC pool two to three times per week and will walk in the pool and do a little bit of swimming.[54] He also completes hydrotherapy, exercises prescribed by the physiotherapist, and uses the steam room.[55]
[54]PCB 18
[55]PCB 18
46 The plaintiff said his back is “very stiff” in the morning and it takes him quite a time before it “frees up”.[56]
[56]PCB 18
47 The plaintiff described how the pain in his lower back and left leg is increased with activities including bending, twisting or walking up and down stairs.[57]
[57]PCB 18
48 As to his sleep, the plaintiff deposed to waking during the night and generally has about four to five hours of broken sleep. He said that his sleep has improved since taking Anafranil, but is still impacted by his back and leg pain.[58] He reports being tired throughout the course of the day.[59]
[58]PCB 19 and 23
[59]PCB 23
49 Since the injury, the plaintiff explained that his social life had retreated from what it was. He no longer attends bars with friends as he once did because he cannot sit or stand for long periods of time.[60] He avoids functions within the Persian community because he does not want people to see him in his present condition in comparison with how he was prior to the injury.[61] The plaintiff deposed to feeling “very lonely” but that he attempts to remain positive.[62]
[60]PCB 19
[61]PCB 19
[62]PCB 19
50 The plaintiff lives in a share house and can independently cook, clean and shop.[63] He said he does not cook complicated meals so as to avoid standing for long periods.[64] He completes light cleaning but no longer sweeps, mops or vacuums so as not to exacerbate his back.[65]
[63]PCB 22
[64]PCB 22
[65]PCB 22
51 The plaintiff has travelled overseas twice since ceasing work to Thailand and South Korea in the pursuit of a romantic relationship that however faltered. He said he has recently taken tentative steps in a new relationship, and one may think that is a positive thing, given his expressed concern that he would find it difficult to establish a new relationship with anyone who had not known him before the injury.
52 The plaintiff said he does not have much “fun” in his life and he spends his time attending the pool, completing physiotherapy or watching movies on “YouTube”.[66]
[66]PCB 24
53 The plaintiff said he feels “as if my life is on hold”.[67] He does not consider that his back pain has improved to any significant extent and he is avoiding activities that would worsen it.[68] He is unsure of any future work and he said that he feels “very lost”.[69]
[67]PCB 24
[68]PCB 24
[69]PCB 24
54 The plaintiff had some formal English language training. He deposed that he had been engaged “on and off” in an IELTS English course in Footscray since the end of 2017.[70] He said he had one class of three to four hours duration per week but that he missed several sessions due to back pain,[71]and he deposed to having experienced difficulty sitting and concentrating due to lower back and left leg pain.[72] He said he only managed to complete a “few hours”.[73]
[70]PCB 23
[71]PCB 23
[72]PCB 19
[73]PCB 19
55 The plaintiff does not believe he can return to physical work due to his back and leg pain,[74] nor does he consider that he can return to forklift driving due to the vibrations of the vehicle, and any associated manual handling that accompanies it.[75]
[74]PCB 19
[75]PCB 20
Applicable legal principles
56 For the purposes of the Act, an injury is a serious injury if the injury is permanent and the pain and suffering consequences or the loss of earning capacity consequence for the plaintiff is when judged by comparison with other cases, in the range of possible impairments or losses of a body function, capable of being fairly described as more than significant or marked, and as being at least very considerable.
The Plaintiff’s medical material
57 The plaintiff tendered numerous medical reports and opinions in addition to radiology and clinical notes, including those of:
· Dr Tombeki, general practitioner
· Dr Eshraghi, general practitioner
· Mr Vellore, neurosurgeon;
· Mr Chan, neurosurgeon;
· Dr Love, orthopaedic surgeon;
· Dr Mehr, rehabilitation specialist;
· Dr Mittal; pain physician
· Dr Young, pain and rehabilitation specialist
· Mr Awad, neurophysiologist and medico-legal neurosurgeon and spinal surgeon.[76]
[76]Transcript (“T”) 4
The defendant’s medical material
58 The defendant tendered the opinions of:
· Dr Kenna, musculoskeletal physician dated 13 April 2016
· Mr Doig, orthopaedic surgeon dated 30 August 2017 and 3 January 2018
· Dr Yong, occupational physician dated 17 July 2018 and 20 August 2018,
· Mr Siu, neurosurgeon dated 7 November 2018
· Mr Simm, orthopaedic surgeon dated 27 March 2019
· Reports of Dr Gudarzi, psychiatrist
· Various rehabilitation and vocational reports.
Credit issues – English proficiency
59 Before addressing the medical evidence relied on by both parties, it is necessary to deal with the issue of the plaintiff’s credit, as it was a key component of the defence. There was no shortage of matters relied on by the defendant. The defendant’s attacks on the plaintiff’s credit were not on the whole unwarranted because, as these reasons explain, a number of the plaintiff’s answers were guarded and, in response to direct questions, equivocal or unreliable. However, I am not satisfied he lied on oath. Furthermore, after having giving careful consideration to all of the evidence and having observed the witness over a substantial and vigorous cross-examination, it has not resulted in me rejecting his application for a serious injury.
60 The plaintiff’s serious injury affidavits were authored in English by his solicitors. They were prepared for him without the use of an interpreter. The plaintiff said that when he came to attest to them, he thought he understood about 85 per cent of their contents and that, when he attested to their truthfulness, an interpreter was present so he was able to sort out any problems with the translator.[77]
[77]T21
61 In a report relied on by the defendant from the rehabilitation provider “ProCare” dated 13 August 2018, its author wrote, that the plaintiff had volunteered that speaking was his strongest quality and that he was able to hold conversations well in English.[78] When asked about this by Mr Batten, the plaintiff accepted that assessment but he added the caveat that “as long as they were using simple sentences”.[79]
[78]T22
[79]T23
62 On 28 March 2019,[80] the plaintiff attended on a pain physician, Ms Mittal, at the request of his solicitors. In her report, she said[81] that the plaintiff answered all questions appropriately, and a Persian interpreter who was in attendance was essentially not required, because the plaintiff’s ability to converse in English had been very good. When questioned about this, the plaintiff said that his English proficiency is limited to those with whom he is in conversation using “simple sentences.”
[80]PCB 80
[81]PCB 85
63 Other facts relevant to the plaintiff’s ability in English is that he maintained a number of different jobs over the years and there was nothing to indicate that he had been inhibited in undertaking his duties due to a lack of competency in English. However, it is not evident if the work undertaken by the plaintiff in labouring type work called for much by way of spoken English but he obviously could converse with his host employer and implement basic instructions including delivery details when working in the warehouse at Elite and in performing driving deliveries. The plaintiff also obtained a forklift licence. The test was undertaken in English. He obtained his ordinary driver’s licence in 2013. That test was also undertaken in English.
64 Mr Kenna saw the plaintiff on behalf of the defendant on 13 April 2016. His report[82] included mention that the plaintiff attended with a Farsi interpreter “but was quick to correct him, if he felt the translation was incorrect”. Mr Kenna’s observation was consistent with my finding that the plaintiff was alert to more sophisticated language than he professed to possess.
[82]Defendant’s Court Book (“DCB”) 5
65 Overall, and particularly by reference to my assessment of the plaintiff’s presentation in Court, I am satisfied that his ability to express himself in English is moderate to reasonable. His answers were largely able to be understood but at other times recourse to the interpreter was required.
Evidence of pre-injury low back pain
66 Mr Batten contended that the plaintiff had suffered specifically from low back pain before the development of the work injury, and that I should not be satisfied by the plaintiff’s evidence that his previous presentations with back pain were merely manifestations of muscular pain consistent with labouring work such as he had experienced at the mushroom farm, and that had always resolved after work had finished and some rest occasioned. Mr Batten submitted that I should be satisfied on the medical evidence that the plaintiff suffered a long-standing constitutional defect with his lower back at L5. His employment with the employer did not cause it, and neither did it cause the plaintiff to suffer an aggravation that itself could be treated as amounting to a serious injury.
67 Overall, I am unable to accept the submission made on behalf of the defendant. The evidence that the plaintiff’s pain was presenting as a constitutional injury and not muscular in the period before he commenced employment with the employer is less than persuasive. Nonetheless, the plaintiff was cross-examined to this end by Mr Batten, and it therefore requires analysis.
The Plaintiff’s previous back pain
68 On 27 October 2014, after completing his work at the mushroom farm in Mernda, the plaintiff consulted Dr Samarakoon at the Well’s Medical Centre. The notes of attendance included a history that the plaintiff had suffered from back pain for three months and that “all the symptoms started after starting work has to do a lot of manual work[83]”. The plaintiff disagreed that he had suffered back pain for three months. I prefer the note in terms of reliability. When Mr Batten suggested to the plaintiff, more than once, that his attendance at the clinic was for low back pain, the plaintiff said it was due to back pain “which was muscular pain.”[84] Dr Samarakoon’s note did not identify the area of the back affected or if the pain had been intermittent or constant over the three month period. Given the plaintiff’s description that the pain that had come on with physical work and eased when resting, I accept on balance that the nature of the pain was more likely than not muscular.
[83]Clinical Notes exhibit D13
[84]T26
69 I have had regard to the report of Dr Ali Mehr, treating pain specialist, dated 27 April 2019, following an examination of the plaintiff on 14 April 2019, who included a history in which the plaintiff said that he had “never had a low back pain prior to commencing employment”[85] with the employer.
[85]P11 (the further reports of Dr Mehr dated 6 May 2019 and 15 May 2019 were not materially different)
70 Mr Batten cross-examined the plaintiff about the nature and location of the pain he experienced in October 2014. The plaintiff said:
“I had pain all over my body, mostly it was on the shoulder, mostly it was on my back, mostly it was on my leg, because of working in the mushroom farm as a forklift driver, and some time shovelling the soil into the boxes. So I was feeling-my body is tired, and I’ve been to the doctor, and I’ve been to spar, sauna and relieving the pain.”[86]
[86]T29
71 He said that after three months of this “muscular” pain he experienced relief, although elsewhere in response to cross-examination he said “after this long time I can’t recall how long did I have pain” but he added that he would regard the contents of his affidavit as the best evidence, which was an account that he had experienced pain relief.
The alleged specific injury on 12 January 2016
72 Mr Batten urged me to find that the plaintiff’s evidence was unreliable on another matter of importance, which was the reference in a number of histories of the plaintiff having suffered a specific incident of injury at work on 12 January 2016. Among the plaintiff’s histories there were indeed references to him having suffered an injury on 12 January 2016. In response to Mr Batten asking the plaintiff whether he had ever told any doctor, including his treating psychiatrist, that he had had an accident on 12 January 2016, the plaintiff answered “no”.[87] That answer was wrong. Psychiatrist records include the plaintiff having referred to a workplace accident on 12 January 2016, his last day of work. Dr Gudarzi, in a report dated 20 November 2017,[88] wrote:
“He claimed that he injured his back when working in a warehouse on 12/1/2016.[89] Yet he continued working despite the pain in his back. He reckons this has harmed him even more resulting in lumbar disc rupture and the sciatic nerve pressure ... .”
[87]T30
[88]DCB 171
[89](or 21 January) a further date specified by Dr Gudarzi in his report at (PCB 171)
73 The plaintiff endeavoured to explain this account. He said:
“12 of January 2016 is my last day at work, when I got told that there is no more job for me at the Elite Logistics. And it have been settled as date of injury because of the last day I have worked. But the injury happened during the work of whole time that I was working there.”[90]
[90]T30
74 The plaintiff also said that:
“I have asked about that from my solicitor who is sitting here and I said that the injury happened during the work but the date of the injury is 12 January 2016. He said this is the time that it’s been put at as your last day at work. So I gave the same date for the question, answer of the question.”[91]
[91]T31
75 Nonetheless, the plaintiff’s injury claim form and the Originating Motion was expressed in terms that the plaintiff had sustained a serious injury over the course of his employment.
The 12 January 2016 termination
76 Another matter the defendant referred to as relevant to the plaintiff’s credibility and arising from his cross-examination are the circumstances in which his employment was withdrawn. The plaintiff said he was terminated from work on 12 January 2016 by his supervisor, Troy Newton, because he was not keeping up with the pace of work required of him and that he believed this was due to limitations he had because of his back injury. On balance I am not satisfied that was the reason for the plaintiff’s termination although the plaintiff may have suspected it was given I am satisfied he was working with pain.
77 I am satisfied the plaintiff was confronted by his supervisor with a customer complaint. Mr Batten asked the plaintiff if a customer had complained concerning his use of language in the course of a delivery. The plaintiff agreed such an allegation had been put to him by Troy Newton, but he said the allegation was concocted by the employer “to stop me from working”. There is no evidence to support the plaintiff’s account that the complaint was concocted as a ruse to terminate his services. Moreover, the allegation did not take the plaintiff by surprise at the hearing, and there was a reference to a work conduct issue, for example, in the report of Dr Mittal dated 28 March 2019.
78 That a complaint of misconduct was alleged against the plaintiff is not evidence of its truth. However, on balance, I accept that a conduct-related reason was put to the plaintiff on 12 January 2016, and he was told he was no longer required.
79 The plaintiff disputed that when he was confronted with a complaint about his conduct and told not to return he said to his supervisor that he could go somewhere else and work.[92] But on further questioning by Mr Batten, he agreed he had worked at a different warehouse for a single day, saying: “Yes, only one day, there was – I think it was on weekend. Maybe Saturday, Sunday. Only one day to help a group from All Staff Australia, and that’s it”.[93] The plaintiff’s decision to work an additional day elsewhere and also to attend Dr Tombeki for pain the day following his termination is curious. Overall, I am not satisfied that the plaintiff finished work on 12 January 2016 because he had experienced a sudden onset of pain that day. The plaintiff was also challenged that he had subsequently spoken to a manager of his employer, Jaylene Napoli, and said that he was desperate to work. The plaintiff denied that he had said any such thing but accepted that “I love to work of course.”[94] As was the case with Mr Newton, an affidavit was not made by Ms Napoli.
[92]T39
[93]T39
[94]T41
80 The plaintiff was questioned by Mr Batten about his intentions had he not been terminated on 12 January 2016. The plaintiff said that had he not been told by Mr Newton that he was no longer required he would not in any event have returned to work[95] and explained himself this way:
“… because they were giving me lighter job in the last two months because of my back pain, and they were complaining about me working slower and being late doing the deliveries even. And I was saying that I have pain. I worked slow.”[96]
(sic)
[95]T41
[96]T41
81 I am satisfied by the evidence that the plaintiff experienced pain at work in about October 2015, and also that he attended his doctor because of it. There is also evidence that, following on from about that time, his work duties altered from warehouse-type work to delivery driver work and, furthermore, on the plaintiff’s uncontradicted evidence, the delivery duties also consisted of hard physical work. Whilst I am not satisfied that had the plaintiff’s services not been terminated on 12 January 2016, he would not have returned to work the next work day, I am satisfied, doing the best I can on the evidence, that this would have been the inevitable outcome very shortly thereafter.
82 In arriving at this finding, I have had regard to the fact of the plaintiff’s attendance on Dr Tombeki the day after he ceased work. This was the first time he had attended for medical help since the previous October, suggesting to me that he experienced a need to do so that day. He said that he went to the doctor the day after his services had been terminated “because I had time to go to doctor, and care about my health.”[97] The entry in Dr Tombeki’s clinical notes[98] of 13 January 2016 records the plaintiff with, “back pain, neck pain, hard work/job as well as reporting radiculopathy pain/bilateral lower extremities”. Thus, whatever might account for why the plaintiff did not attend on his doctor earlier, I am satisfied that the attendance on 13 January 2016 was for pain, including back pain, and the same was consistent with heavy work the plaintiff had been performing with the employer.
[97]T42
[98]DCB 151
History of prior treatment and attendances
83 In October 2014 and again in May 2015, the plaintiff attended the Wells Medical Clinic complaining of back pain. He had also attended Dallas Physiotherapy in May 2015 with a complaint of neck and back pain. The clinical record from 16 October 2015 is one of back pain, although the plaintiff could not independently recall his attendance. He was asked by Mr Batten to indicate the areas of back pain that prompted his attendance on that occasion, and he said “Probably on my lower back”.[99]
[99]T36
Assessment of credit and allied matters
84 Because the defendant has put the plaintiff’s credit squarely in issue I have approached the assessment of his evidence with care. In Faryna v Chorny[100] for example, the following was said:
“… But the validity of evidence does not depend in the final analysis on the circumstances that it remains uncontradicted or the circumstance that the Judge may have remarked favourably or unfavourably on the evidence or the demeanour of a witness; these things are elements in testing the evidence but they are subject to whether the evidence is consistent with the probabilities affecting the case as a whole and shown to be in existence at the time … .”
[100][1952] 2 DLR 354 at paragraph [9]
85 In considering the plaintiff’s credit, I have considered whether the evidence is consistent with the probabilities affecting the case as a whole and proved to be in existence at the time. I have also endeavoured to not allow an adverse impression of the plaintiff on some of his evidence to overshadow the existence of facts that point towards the existence of pathology of an organic injury consistent with the plaintiff’s work. Naturally enough, a lack of candour can impede the ability of a judge to make reliable assessments of evidence. However, the determination of a finding of serious injury is a morally neutral exercise. Obfuscation by a deponent in one area, or dissembling by him in another, or outright dishonesty, may be sufficient in many a case alleging a serious injury to undermine a claim entirely, but in others it may not. For example, where there is no pathology of injury but only the uncorroborated account of the applicant and a reliance on symptoms, then his or her unreliability may be crucial and determinative of an adverse outcome.
86 Although I have found the plaintiff’s answer on some questions unreliable and in one instance wrong , I am not satisfied that has been so in relation to his evidence about the onset of his injury which is cable of identification by recourse to medical opinion. Thus, I am not satisfied that issues of credit have been of substantial importance in the context of the case as a whole that it has undermined the heart of the factual underpinnings expressed in the preponderance of medical evidence.
The Plaintiff’s submissions on injury
87 Mr Horner submitted that on the question of injury the plaintiff had not resiled from his evidence that whilst he had experienced symptoms in his back prior to commencing employment with the employer they were muscular in nature. I have already accepted that conclusion.
88 Mr Horner submitted that the plaintiff’s injury could be treated as a new condition consisting of injury to the lumbar discs at L3-4 and L4-5 and probably L5 and S1; however, Mr Horner submitted that the preponderance of medical opinion, and the better view, is that the plaintiff experienced an aggravation of underlying degenerative spondylosis that itself may have caused the prolapse bulges that are compressing the nerve roots, and that is consistent with the thrust of the medical material.
89 Mr Horner, in support of his submission of the existence of a pathology consistent with a work injury sustained by the plaintiff as a result of his employment with the employer, referred not just to the opinions of those who had treated the plaintiff and furnished reports on examination, but he relied as well on the opinions of certain of the medico-legal experts who had examined the plaintiff on behalf of the defendant.
The Defendant’s medical opinions
90 Mr Kenna saw the plaintiff on behalf of the defendant and, on the question of diagnosis, wrote that the plaintiff suffered a “new condition” and said:[101]
“The substantive diagnosis relates to the lumbar spine and relates to a disc prolapse presenting as back and radicular symptoms involving the left thigh and lower extremity. With regard to the cervical, this is purely soft tissue/mechanical and minor.”
[101]Exhibit D1
91 Mr Kenna said:
“Although there was no specific incident, the claimant states the nature of the job duties were arduous. I accept that as such at this point in time in the absence of any evidence to the contrary. That being the case, I consider that employment has been a significant contributing factor to the onset of his condition, with clear clinical signs of dual tethering involving the mid lumbar nerve root. However, as noted, no evidence at the time was forwarded, indicating alternative causation.”
92 Mr Doig was another medico-legal specialist who examined the plaintiff on 28 August 2017 at the request of the defendant. He said the plaintiff suffered from a soft tissue injury to his lumbosacral spine with minor disc bulging on CT scan. He said there was no clinical evidence of radiculopathy. He thought the plaintiff’s condition on examination was due to lifting during his work with the employer over a nine-month period.[102]
[102]DCB14
93 Dr Yong examined the plaintiff on 17 July 2018, and furnished a report to the defendant’s solicitors.[103] The history he took was one that reflected a common history of others that had been obtained, that is of the plaintiff having performed manual tasks on his own in a warehouse and lifting heavy boxes on a repeated basis, the contents containing up to 12 bottles of 1.5 litres of wine. He described the plaintiff unloading or loading containers, or unloading or loading vans. He related that the plaintiff had identified the onset of low back pain in August 2015 “where he was moving boxes of wine from one pallet to another.” He experienced “a lower back pain and was having trouble breathing.” He told his supervisor of his condition and he was sent home. He said he rested at home but then continued working his normal duties and hours again but was self-managing his pain. He said that due to the nature of the symptoms and his condition not having improved he saw his doctor on 13 January 2016, and he was subsequently referred for scans and was certified unfit for any work duties.
[103]Exhibit D4
94 Dr Yong’s report mentioned that the plaintiff had not presented with a history of low back problems. He characterised the plaintiff as suffering from a discal injury to his lower back with ongoing lumbar dysfunction and radicular symptoms.
95 Dr Yong said that the materials he had been provided for the purposes of examination included a general practitioner attendance by the plaintiff on 27 October 2014 reporting back pain, lateral knee pain, shoulder and cervical region pain after having commenced manual work such as shovelling, housing and other manual activities at a mushroom farm, and that when the work stopped the various aches improved. Dr Yong related how, on 21 May 2015, the plaintiff’s doctor had noted pain in the neck and shoulders and, on 13 June 2015, had reported flank pain in the left side that had been associated with playing water polo. Dr Yong considered those indications and presentations of symptoms “differ to the current symptomology and are likely to be different conditions”. He thought that there “are no features consistent of a pre-existing condition.”
96 Mr Siu examined the plaintiff on 22 October 2018[104] on behalf of the defendant and diagnosed lumbar spine dysfunction with spondylitic changes at L3-4. He concurred with the opinion of Associate Professor Love who, following an examination of the plaintiff,[105] thought that the plaintiff’s condition was not a recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease. Mr Siu concluded that the plaintiff’s “lumbar spine dysfunction is part of the soft tissue injury complex and I would have thought his symptoms should have resolved by now.”
[104]Exhibit D5, report dated 7 November 2018
[105]Exhibit D6, report dated following examination of the plaintiff on 27 March 2019
97 Mr Simm, orthopaedic surgeon, wrote in a report dated 27 March 2019,[106] provided at the request of the defendant, that his diagnosis was one of:
“… chronic mechanical low back pain with referred pain into the left lower limb without objective clinical signs of radiculopathy, nor with MRI scan supporting evidence of neurological compression. The chronic mechanical low back pain became extremely severe the day after he was possibly advised that he was no longer required at his place of employment. He related the severe low back pain and left lower limb symptoms to the repetitive and heavy lifting at work. This mechanism of injury could be responsible for initiating and exacerbating symptoms from underlying lumbar disc pathology and/or from the underlying spondylosis of L5, but he did his normal duties until 12 January 2016.
His clinical course has features of a chronic adverse pain response in association with a psychological disturbance, which has been substantially aggravated by an unprovoked life-threatening assault when he was stabbed in early February 2018. Taking into account the symptoms, signs and MRI scan findings, I concluded that his condition relates largely to non-organic and/or psychological factors, which are perpetuating a chronic spinal pain illness in the setting of acclaimed work-related back injury.
…
The heavy physical work had the potential to aggravate both of the pre-existing underlying pathological conditions. Considering his clinical course of the claimed work-related onset of pain without remission or significant improvement, it could be concluded that his condition remains work-related.”
[106]Exhibit D6
98 In addition to the medical opinions obtained by the defendant, Mr Horner also referred to the absence of history expressed in clinical notes of radiculopathy, an omission he submitted might be regarded as consistent with the pain the plaintiff had experienced previously being muscular in nature. Mr Horner also noted that, despite the plaintiff’s past attendances on his doctor for back pain, he had not been referred for scan or radiological examination until after his attendance on Dr Tombeki on 13 January 2016. I agree that these are factors that favour the plaintiff’s analysis of injury.
99 Mr Horner pointed to Dr Tombeki’s clinical note dated 15 May 2015 that recorded: “Still have back pain/neck and shoulder pain.” Mr Horner as well directed me to a note of attendance at the Wells Medical Clinic from 16 October 2015,[107] that reported the plaintiff’s complaints as including “complaints of having back pain” and the description of the region of back pain was recorded as “Lumbar”.
[107]DCB 151
The Plaintiff’s medical evidence
100 Mr Patrick Chan, following an examination of the plaintiff, reported to the plaintiff’s solicitors dated 23 January 2018.[108] He recited the plaintiff’s history that included, in August 2015, whilst moving cases of wine from pallets to store on shelves, he experienced pain that became progressive. He continued to work until 12 January 2016 “before needing to see a GP.” He described the plaintiff as having experienced pain in his back that extended from the lower back into the right gluteal region and intermittently to the left gluteal region. The pain in his gluteal region had improved by the time of his examination by Mr Chan. As well, the plaintiff experienced a sharp pain in his left hamstring and left knee. The numbness in the plaintiff’s left knee and left lateral leg had also however resolved. Mr Chan said the plaintiff was able to sit for more than an hour. Lifting still exacerbated his pain. He reported that the plaintiff was using Lyrica 150 milligrams twice a day and Tramadol, one tablet twice a day.
[108]Exhibit P9
101 Mr Chan referred to a lumbar spine MRI from October 2017 that revealed L3-L4, L4-L5 and L5-S1 disc desiccation with an L3-L4 and L4-L5 central disc bulge and annular fissure. There was bilateral L5 pars defect. Mr Chan described the plaintiff as suffering from “mechanical axial lower back pain and is currently not able to work.” Mr Chan organised a bone scan and a dynamic lumbar spine x-ray.
102 Mr Awad, neurosurgeon, prepared three reports.[109] He referred to the nature of the plaintiff’s heavy workplace activities that he considered amounted to a significant contributing factor to the aggravation of lumbar spondylosis. In his second report, on the matter of diagnosis, Mr Awad remained of the opinion that the plaintiff suffered from aggravation of lumbar spondylosis that had been caused by his work.
[109]Exhibit P11
103 Dr Tombeki’s first report to the plaintiff’s solicitors was dated 10 July 2016.[110] He recited that the plaintiff attended the Wells Street Clinic initially on 16 October 2015 complaining of lower back, left gluteal and left lower limb, wrists and neck pain that he had been experiencing for a few days. He was next seen on 13 January 2016, with a presentation Dr Tombeki described as a severe exacerbation of ongoing pain. He assessed the plaintiff’s limitations as an inability to stand, sit or walk for more than five minutes, bend, squat, lift any object above 2 kilograms or perform any of his pre-injury duties. He thought the plaintiff’s back pain was consistent with left L4 root compression, and so he arranged a spinal CT scan performed on 19 January 2016 that confirmed multiple levels of discopathy (that is, degenerative disc disease) at (L2-L3, L3‑L4, L5-S1), together with left-sided L4 nerve root compression.
[110]Exhibit P4
104 In a subsequent report to the plaintiff’s solicitors dated 7 April 2017,[111] Dr Tombeki assessed the plaintiff’s back pain as due to multiple lumbosacral discopathy with nerve compression at left L4. He thought the plaintiff’s prognosis was uncertain and the condition of his back was work-related and that he was unfit for any type of pre-injury employment based on his physical and mental condition.
[111]Exhibit P5
105 The plaintiff’s subsequent general practitioner, Dr Eshraghi, in a report provided to the plaintiff’s solicitors, dated 5 May 2019,[112] described the nature of the plaintiff’s work with Elite Logistics as labouring work including picking, packing, lifting and delivery of heavy boxes of wine, and these required him to be engaged in repetitive bending and lifting of heavy objects. She wrote that the plaintiff had recounted that in August 2015, after a heavy physical job, he experienced severe low back pain which was reported to his supervisor, but no action was taken. Next, on 16 October 2015 while undertaking a physical job, he experienced a “a very severe back pain with radiation to his left leg”. He went home and saw his general practitioner. He returned to work the following day and continued working with the company until January 2016.
[112]Exhibit P6
106 In Dr Eshraghi’s opinion the plaintiff’s back condition appeared to be a work- related injury and she reasoned to that conclusion, in part, because prior to June 2015 the plaintiff had only attended medical clinics for a mid or low back pain, but with no radiation and no “alarming signs or red flags”. He had not required any investigation, nor had he been prescribed pain-killing medication, and his diagnosis was of muscular back pain. Dr Eshraghi’s diagnosed lumbar spondylosis with chronic lumbar spine pain with facetogenic pain in L3-L4 and L4-L5 levels. Major Depression and Anxiety was also diagnosed. She did not think the plaintiff’s prognosis was good, and she did not think he would be able to do jobs that called for physical activities or involved the same.
107 A report from the plaintiff’s physiotherapist, Mr Louka, to the plaintiff’s solicitors dated 7 July 2016,[113] recounted a history that is not at odds with what I have already addressed insofar as the plaintiff’s work activities are concerned and, of itself, adds nothing of any moment to the consideration of the issues needing resolution. I say no more about it than that.
[113]Exhibit P7
108 Mr Mikhail, physiotherapist, saw the plaintiff for treatment in the form of exercise and a few sessions of supervised hydrotherapy between July 2017 March 2018. He furnished three reports.[114] In his report dated 15 September 2017, he diagnosed an acute low back injury, but he attributed it to an injury sustained at the plaintiff’s workplace on 12 January 2016. The report’s reference to an injury sustained at work on 12 January 2016 is a further example of an incorrect history having been given to a treater. It is contrary to the plaintiff’s claim, his affidavit evidence and answers in cross-examination. In the last of his three reports, Mr Mikhail said that he had not seen the plaintiff since March 2018 and could not comment on his current symptoms but, at the date of the report, he considered the plaintiff’s physical prognosis as likely to be severe and to involve significant and lifelong limitation and restriction. He thought the plaintiff was likely to be precluded or restricted in employment or activities involving pushing, pulling or lifting, repetitive pushing, pulling or lifting, bending, reaching, twisting or stooping, prolonged sitting, standing or walking or any other physical functions or motions. He wrote that the plaintiff has the capacity “neither to perform his preinjury nor alternative duties”.
[114]Exhibit P8 (Reports dated 15.9.17, 29.3.18 and undated report with the undated report expressed as provided in response to a request by the plaintiff’s solicitors dated 19 March 2019)
109 Mr Vellore, in his report dated 10 April 2019[115] provided to the plaintiff’s solicitors, also referred to a history in which the plaintiff had sustained a back injury while lifting some heavy pellets in a wine warehouse on 12 January 2016. That history of injury is also wrong. The plaintiff made no such claim. I have considered if the incorrect account of the history of injury having been sustained on 12 January 2016, it undermines the reliability of the ultimate opinion by Mr Vellore. I am not satisfied it does, because in addressing the consistency of the plaintiff’s condition with its stated cause or its mechanism of injury, and despite having said the plaintiff sustained his back injury on 12 January 2016, Mr Vellore also referred to the history provided by the plaintiff that he had been performing extremely heavy lifting that Mr Vellore said had the “possibility of exacerbating the pain arising from the pars defects and mechanical axial back pain.” He suggested it was possible the plaintiff’s employment “by way of performing extremely heavy lifting has been a contributing factor to his condition or the recurrence, aggravation, acceleration, exacerbation or deterioration of pre-existing injury or disease”. Thus, I am satisfied that Mr Vellore’s opinion of diagnosis is not rendered unreliable because of his reference to the plaintiff having injured himself lifting heavy pellets on 12 January 2016. Mr Vellore diagnosed “mechanical axial back pain with bilateral L5 pars defects.” He thought it possible that the organic basis for the plaintiff’s pain was the bilateral L5 pars defects.
[115]Exhibit P10
110 Mr Vellore further reported that the plaintiff had since described experiencing significant low back pain along with left-sided pain at the L5 distribution. The plaintiff has also described pain in the right hip, together with a bit of neck pain, however, Mr Vellore recounted the main problem was to the plaintiff’s back. Mr Vellore noted that radiology had demonstrated a small disc protrusion at L3-L4 and annular tearing at L4-L5, along with bilateral L5 spondylosis (the pars defect). A CT scan, which he arranged as well as an MRI scan, demonstrated L3-L4 and L4-L5 disc bulges, but that did not appear to be significantly compressive. The CT scan confirmed the existence of bilateral L5 pars defects. Given that Mr Vellore regarded the plaintiff’s symptoms arose from the pars defect, Mr Vellore gave him the option to undergo an image-guided pars defect injection as opposed to having an L5-S1 fusion.
111 Lest there be any uncertainty on the issue of disentangling (and in my judgment no such issue arises as a matter of law in circumstances in which there is a finding of an organic injury with impairment), Mr Vellore excluded any contributing factor caused by mental or behavioural issues when addressing the plaintiff’s capacity to undertake pre-injury employment and other functional complaints.
112 Mr Vellore thought the plaintiff’s capacity to perform any suitable employment would be precluded by restrictions including, but not limited to, heavy lifting, bending, twisting, repetitive pushing, pulling, bending, twisting, prolonged sitting and standing, and he thought further treatment may be necessary in the form of an L5-S1 fusion, should pain management fail to alleviate the plaintiff’s pain.
113 Dr Mehr is a rehabilitation physician who furnished a report dated 27 April 2019[116] following an examination of the plaintiff on 14 April 2019. She noted that her assessment occurred after the plaintiff had completed a pain management program. The history she took was one of the plaintiff having commenced working with Elite Logistics in a warehouse environment on 1 June 2015, which work involved forklift driving and picking and packing, and repeated heavy lifting of boxes of wine, together with the delivery of the same that required loading and unloading of boxes, each of which weighed up to 20 kilograms. She reported that the plaintiff first felt a low back pain in August 2015, which he reported to his supervisor. Then, on 16 October 2015, the plaintiff was working in the warehouse when he experienced severe lower back pain with radiation into the left lower limb. He continued working till 12 January 2009, when she recorded he was terminated because of an inability to continue working at a suitable pace.
[116]Exhibit P11
114 Dr Mehr noted that the plaintiff experienced lower back pain and lumbar spine pain, the intensity of which he self-assessed as averaging 6/10. He described that his pain was aggravated by activities and of working such that on such occasions his assessment of pain increased to 9/10. She noted plaintiff’s standing tolerance was 10 to 15 minutes, with a walking tolerance of 20 to 30 minutes and a sitting tolerance of 45 minutes.
115 In a recent report dated 15 May 2019,[117] Dr Mehr said she thought the plaintiff “suffers from two pain conditions. One is chronic lumbar spine pain due to aggravation of lumbar spondylosis and also he suffers from chronic pain in the lower limbs, especially left side, which is mainly in the L4 and L5 roots trajectories.” Dr Mehr considered the plaintiff unchanged from earlier reporting in terms of work, and had no capacity for physical work, and no capacity for training or sedentary jobs, and that such incapacity would be unchanged for the foreseeable future.
[117]Exhibit P11
116 Mr Horner submitted that the doctors all indicate that the plaintiff’s restrictions are permanent and they are consequences that would preclude him undertaking physical work.
The Defendant’s submissions
117 As previously mentioned, Mr Batten submitted that I should be satisfied, on the evidence, that prior to commencing work with the employer in June 2015, the plaintiff had a history of low back pain for which he had attended his doctor on a number of occasions, including in October 2014, and the history and the clinical notes that recorded back pain for a period of three months was indicative of the plaintiff having a pre-existing underlying congenital problem by way of an L5 pars defect.
118 Mr Batten submitted that the plaintiff suffered from the underlying condition of a bilateral pars defect at L5-S1 and that there is a strong basis to conclude that the plaintiff has suffered, and continues to suffer, injury to his low back from that condition. He referred to the opinion of Mr Yong that: “Mr Banadaki is a man with a discal injury to his lower back with ongoing lumbar dysfunction and radicular symptoms”. This, Mr Batten submitted, was consistent with the thread of the medical evidence, both from the defendant and from the plaintiff’s treaters, and as well medico-legal opinion.
119 Mr Batten contended that the plaintiff had suggested he was injured on his last day of work, but that this was untrue. I have already expressed my finding rejecting that narrative. The plaintiff’s explanation for why it was asserted to more than one doctor was not explained in a satisfactory way. However, and contrary to the defendant’s submission, I accept there is objective evidence of the plaintiff having suffered an injury consistent with a 9-month history of heavy work duties, including lifting and bending.
120 Mr Batten submitted that I should not be satisfied that the plaintiff came to his employment with the defendant absent a history of low back pain. On balance, and after giving careful consideration to the evidence, I am unable to accept that submission by counsel for the employer.
121 The report of the pain experienced by the plaintiff in October 2014 was widespread, non-specific, musculoskeletal, and involved symptoms of back pain, bilateral knee pain, shoulder and cervical pain. The general practitioner’s note of attendance on 27 October 2014 of back pain, bilateral knee pain, shoulder and cervical regional pain was said to have commenced after the plaintiff commenced work on the mushroom farm and whilst shovelling, hosing and performing other manual work. It was reported that his various aches and pains became better after he ceased work.
122 I note, too, Dr Yong, who reported for the defendant, considered that the general practitioner’s account taken of the plaintiff’s attendance on 21 May 2015 of pain in his neck and shoulders, and on 13 June 2015, with flank pain in the left side associated with his playing of water polo work, was such that “it appears that these symptoms differ to the current symptomology and are likely to be different conditions.” That narrative is consistent with muscular pain that comes and goes. The plaintiff’s presentation subsequent to October 2015 and January 2016, following him having ceased employment, is of ongoing symptomatic low back pain.
123 My analysis of the medicine is such that I am sufficiently satisfied that the plaintiff suffered a low back injury and that an MRI scan of 23 April 2019 identified an L3-4 broad-based disc bulge. Several of the medico-legal doctors have commented on that finding, indicating that there has been a progression in the pathology, something the plaintiff argued is consistent with the existence of symptoms and restrictions and, in particular, his complaint from a very early stage of experiencing left leg pain.
124 I have also kept in mind that in the period following 16 October 2015 until 12 January 2016, the plaintiff was apparently, in the main, performing truck deliveries of boxes of wine to various places, as opposed to performing warehouse work. That change was not something that appears to have come out of the blue but, rather, the plaintiff deposed to that change in duties having followed on from his complaint of back pain on 16 October 2015 to Troy Newton. The plaintiff deposed that he was mainly doing deliveries from then until 28 December 2015, and he then commenced back at work on 5 January 2016 and he undertook deliveries on 6, 7, 11 and 12 January 2016, and worked approximately 7.5 half hours on each of these last four days.
125 Mr Batten argued that I should find that the plaintiff told the Court a blatant untruth when he said that, had his employment not been withdrawn on 12 January 2016, he would have not returned to work. I have given the plaintiff’s account considerable consideration and, on balance, I am not satisfied it amounted to a lie. For one thing, I have no reason to regard the clinical note from Dr Tombeki as untrue, or that he had the “wool pulled over his eyes”, so to speak, by the plaintiff on the 13 January 2016 attendance. Dr Tombeki considered there to exist a connection between the plaintiff’s back pain and the physical work he had been performing. The fact of the plaintiff having apparently done some sort of work for a day, or part thereof, on 13 January or thereabouts, is not a sufficient reason for me to conclude that the plaintiff’s injury had not reached a point inconsistent with him continuing in the work he had been performing with the employer.
Conclusion
126 I am satisfied that the preponderance of the medical evidence is sufficient, on balance, to find that the plaintiff’s complaint of back pain while undertaking work with the employer was a complaint of lumbar back pain. I am also satisfied that the plaintiff’s objective history was consistent with his account that he was in pain from work and, that having made a complaint to his supervisor, he subsequently endeavoured to self-manage his pain until he sought further treatment after 13 January 2016 including being referred for the first time for radiology.
127 The work the plaintiff performed for the employer was heavy in nature, and would not be inconsistent with the presentation of pain, and the need to attend his doctor with complaints of the same.
128 I am satisfied, on the evidence I have referred to, that there was an evident and adverse difference between the plaintiff’s presentation before and after commencing work with the employer.
129 Ultimately, however, the identification of injury cannot be surrendered to competing medical opinions. The question of injury, and the allied questions whether a worker has suffered from a new condition or whether an injury has aggravated a pre-existing condition to such an extent that the aggravation injury, itself, is a serious injury or is merely a temporary exacerbation, are matters of judgement that the Court is required to reach on the available evidence. Whilst I appreciate that Mr Siu, on behalf of the defendant, agreed with Associate Professor Love that the plaintiff’s condition was not a recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease, and that Mr Siu concluded that the plaintiff laboured from a lumbar spine dysfunction as part of the soft tissue injury complex, which symptoms should have resolved, I am satisfied the plaintiff’s symptoms have not resolved, and the better explanation is because the condition is due to an aggravation that, itself, is a serious injury.
130 Accordingly, and after having considered all of the evidence, I am satisfied that prior to commencing with the employer the plaintiff suffered from back pain. I am also satisfied that the nature of the plaintiff’s previous presentation was muscular type pain. It came and went commensurate with performing heavy manual labour tasks and eased as the work ceased and was responsive to topical treatments and rest. However, in the course of the 9 month period of work with the employer his condition changed significantly, and it has caused such an aggravation of the underlying vulnerable back condition by way of a compression of the nerve roots, that the plaintiff is more than markedly affected by reason of the aggravation injury when compared to his pre injury condition and the incapacitating condition he now suffers is in my judgement serious.
The evidence of work capacity and limitations
131 The defendant submitted that the plaintiff presents with a residual capacity and therefore it falls to him to satisfy the Court that he has no capacity for suitable employment. I accept the defendant’s submission.
132 I have already made reference to some of the reporting concerning the plaintiff’s capacity. I shall deal with it now more fully. The evidence on the matter of the plaintiff’s capacity consisted of medical opinions and vocational reports as well as the plaintiff’s evidence and cross-examination. Some of the medical evidence included opinions about the plaintiff’s capacity to undertake work in employment in jobs identified in the vocational reports.
133 The documents tendered into evidence by the defendant addressing the plaintiff’s capacity for suitable employment were numerous but not all of them were probative. Included in the tendered documents was an attendance at the plaintiff’s former workplace when it was found the site was no longer operating as the warehouse had closed. Some other reports were of course commissioned in the context to the statutory scheme for weekly payments.
134 The defendant tendered five reports from ProCare and two from Recovre. They were more particularly identified as reports from ProCare dated:
· 30 August 2017
· 24 October 2017
· 15 November 2017 (consisting of a ProCare progress report provided to the Victorian WorkCover Authority)
· 24 April 2018 (a second ProCare progress report) and
· 13 August 2018;
together with two Recovre Vocational Assessment reports dated:
· 16 August 2018; and
· 29 January 2019.
135 The ProCare Report dated 30 August 2017 recommended the provision of occupational health and safety services to the plaintiff to assist his return to work in a “safe and sustainable manner”.
136 The author of the ProCare 130-Week Vocational Assessment Report dated 24 October 2107 identified five proposed suitable employment options for the plaintiff, and they were:
(i) Warehouse Supervisor/Supply and Distribution Manager
(ii) Forklift Driver
(iii) Light Delivery Driver/Courier
(iv) Administration Officer/General Clerk.
137 A ProCare Progress Report dated 15 November 2017 reported on the plaintiff’s efforts in rehabilitation to date with a suitable return to work.
138 A Return to Work Plan dated 7 March 2018 made mention of an Independent Medical Examination report dated 30 August 2017 by Dr Doig who had determined that the plaintiff was “fit for alternative duties” with restrictions which he identified to include as less than 10kg lifting, pushing and pulling restriction, with limited bending, twisting and squatting Dr Doig thought the plaintiff would also need breaks from prolonged sitting, standing and driving. Dr Doig also expressed the opinion that if the plaintiff’s analgesics were stopped it would reduce his capacity for suitable employment but he thought they should in any event be optimised as they appeared to him to be excessive.
139 A Second ProCare Progress report dated 24 April 2018 updated the steps that had occurred since the time of the authorship of the first progress report.
140 A Procare CSS Report dated13 August 2018 merely referred to previously identified suitable employment options.
141 A Recovre Vocational Assessment report dated 16 August 2018 identified as suitable employment the jobs of:
(i) Production Clerk
(ii) Despatch Clerk
(iii) Warehouse Clerk
(iv) Stock Clerk/Order Clerk
(v) General Clerk
(vi) Customer Service Officer
(vii) Enquiry Clerk/Information Officer
(viii) Rental Sales Person
(ix) Product Assembler
(x) Packer
(xi) Electronics Trades Worker (Electronics Process Worker).
142 The author of a ProCare Joint RTW Job seeking plan report dated 29 January 2019 characterised the plaintiff as having presented “as lacking motivation to find new employment, which he attributes to his ongoing symptoms and the impact of medication on his cognition and ability to drive”[118] and she identified suitable job options as those already referred to in the ProCare CSS Report dated13 August 2018, namely:
[118]Exhibit D11
(i) Customer Service officer
(ii) Administration Assistant
(iii) Bank teller
(iv) Warehouse Supervisor
to which was added:
(i) Import/Export Trainee
(ii) Workplace Health and Safety Advisor.
143 The positions identified as suitable job options in the report dated 29 January 2019 were the subject of worksite assessments by the author.
144 Worksite assessments outlining the physical and vocational demands of real jobs identified from the report that it was contended would be suitable employment as accommodating the plaintiff’s existing limitations were those of:
(i) Warehouse Clerk
(ii) Rental Salesperson
(iii) Warehouse Administrator/Pallet Controller
(iv) Despatch Clerk.
The medical evidence on capacity for suitable employment
145 Whilst having addressed the question of the plaintiff’s injury by reference to the medical evidence some of which canvassed capacity it is proper to deal with the evidence more specifically as it now arises for determination in the context of suitable employment.
146 Dr Kenna on13 April 2016[119] assessed the plaintiff unfit to work and considered him to be a candidate for lumbar surgery.
[119]Exhibit D1
147 Dr Doig in his report of 30 August 2017[120] expressed the opinion that the plaintiff was fit for alternative duties but with a less than 10 kg lifting, pushing and pulling restriction, with limited bending, twisting and squatting and that he would require breaks from prolonged sitting, standing and driving.
[120]Exhibit D2
148 Dr Doig in his report dated 3 January 2018[121] expressed the opinion that the plaintiff had the physical capacity to perform one or other of 3 roles identified in the ProCare report from October 2017 namely:
[121]Exhibit D2
· Warehouse Supervisor/Supply and Distribution Manager,
· Warehouse Administrator
· Administration Officer/General Clerk.
149 However, Dr Doig believed that in performing such suitable employment the plaintiff should comply with the restrictions he had expressed in his 30 August 2017 report.
150 Dr Yong in his report dated 17 July 2018 suggested the plaintiff avoid repeated bending and twisting of the back and repeated pushing and pulling tasks and lifting more than 4 kg on a repeated basis. He thought that the plaintiff needed to be able to vary his posture regularly between sitting, standing and walking and for there to be a reduction in his working hours. Dr Yong considered that the plaintiff should commence in suitable employment on reduced hours “such as 3-hour shifts for 3 days per week. The aim would be to gradually increase the working hours, initially aiming to return to half of weekly working hours of 20 hours per week over a 3 to 4 –month period”. Dr Yong’s restrictions were consistent with those suggested by the plaintiff’s medicos.
151 Dr Yong was asked about the plaintiff’s capacity to undertake suitable employment in the jobs of:
· Warehouse Supervisor/Supply and Distribution Manager
· Forklift Driver
· Light Delivery Driver/Courier
· Warehouse Administrator
· Administration Officer (General Clerk).
152 Dr Yong considered the position of Warehouse Supervisor/Supply and Distribution Manager to be suitable on the assumption that “there are no warehouse type duties are other manual handling tasks with this role”.
153 Dr Yong did not think the plaintiff could fulfil the position of forklift driver because it was likely to exceed his recommended restrictions.
154 Dr Yong did not regard the position of a light Delivery Driver/Courier to be suitable employment due to the possibility of a prolonged driving requirement and that description of the handling of stock would exceed recommended restrictions.
155 Dr Yong considered the position of Warehouse Administrator would amount to suitable employment because it was likely to require minimal manual handling and therefore was likely to comply with the restrictions he had expressed as appropriate.
156 Dr Yong thought the position of Administration Officer (General Clerk) with its description of minimal manual handling demands would also comply with the recommended restrictions applicable to the plaintiff and therefore would amount to suitable employment.
157 Dr Yong by way of a Supplementary Medical Report dated 20 August 2018 addressed the additional proposed suitable employment identified in the report made by Recovre and dated 16 August 2018 and these were:
· Despatch Clerk – he referred to a worksite assessment having been undertaking at a large cardboard manufacturing and processing plant that entailed computer, telephone, filing, photocopying and general administration tasks and he considered they would comport with his recommended restrictions and it would mount to suitable employment.
· Production Clerk – he noted that there had been no job description provided for the role but he assumed it would entail relatively benign tasks and hence comply with his recommended restrictions and therefore be suitable
· Warehouse Clerk – he referred to the worksite assessment performed for the role at and that the duties consisting of computer based tasks, stocktaking and manual administration would comply with his recommended restrictions
· Stock Clerk/Order Clerk - he noted no job description had been provided for the position but he anticipated that if the physical requirements were similar to the position of a warehouse clerk then there would be minimal handling required for the role and would likely comply with his recommended restrictions.
· General Clerk - he noted her no job description had been provided with the specified role but on the assumption it would involve physical requirements similar to the aforementioned clerk roles and thus require minimal manual handling it would comply with his recommended restrictions.
· Customer Service Officer - all again he noted no description for the role of been provided but again on the presumption it would require minimal manual handling he believed it would comply with his recommended restrictions.
· Enquiry Clerk/Information Officer - no description was provided for the role but he regarded it as probable as requiring a customer service requirement and some administrative tasks in what he presumed would be an office based environment and hence on the basis that there would be minimal handling and performance of the role he regarded it as one suitable within the restrictions he had identified
· Rental Salesperson - he noted a worksite assessment had been performed in a motor vehicle hire business and that it entailed computer based tasks, telephone management, customer service, car collection and drop-offs and filing. He anticipated that minimal manual handling would be expected in the role and that the driving component would be minimal and therefore it would comply with his recommended restrictions.
· Product Examiner - he noted no description had been provided as accompanying the role but anticipated it would involve duties in a factory environment and possibly the involvement of the use of tools and handling bulk loads and therefore could exceed recommended restrictions.
· Packer - the position of Packer contained no description and again he proceeded on the assumption that it would be performed in a warehouse environment with a requirement to pick and pack goods and possibly to handle bulk quantities of goods with possible prolonged standing postures which would exceed his recommended restrictions.
· Electronic Trades Worker (Electronic Process Worker) - again no description for this position was provided but he anticipated it could involve the performance of activities at a workstation using a variety of tools and possibly require prolonged standing postures and the handling of goods in excess of recommended restrictions.
158 Dr Mehr, rehabilitation specialist and neurophysiologist, reported on 27 April 2019 that:
“Prognosis for the alternative work. I think he can consider alternative work in the far future. However, this needs training, which starts with an English course first then he can continue retraining in his area of interest and experience. I do not believe that he will be able to generate income with a sedentary or nonphysical job in the free job market in the foreseeable future. At this stage, he has no capacity to even sit for a course (a trial of English course was unsuccessful due to memory and concentration issues and also a flare-up of the back pain with long-term sitting). Therefore I think he has no capacity of any type of work for now and for all foreseeable future”.[122]
[122]Exhibit P11, PCB 55
159 In a report dated 15 May 2019, Dr Mehr wrote that the plaintiff –
“… has no capacity for physical work. He has no capacity for training or sedentary jobs. This capacity will be unchanged for the foreseeable future.”[123]
[123]Exhibit P11, PCB 60
160 Dr Awad wrote on 8 March 2019 that the plaintiff continues:
“… not to have the physical capacity to undertake his pre-injury employment. I still believe in theory he does have some physical capacity to undertake sedentary work several hours per day several days per week of a suitable job was available. In practice, however, taking into account age, education, training, skills, work experience as well as his limited English and the nature and severity of his work-related lumbar spine condition it may be difficult for him to procure suitable employment.”[124]
[124]Exhibit P14, PCB 79
161 Dr Awad went on to say that in his opinion the plaintiff’s “incapacities are likely to continue into the foreseeable future”.[125]
[125]Exhibit P14, PCB 79
162 In a later report dated 14 May 2019 Dr Awad said that his opinion remained the same as regards diagnosis, that is, the plaintiff suffers from aggravation of lumbar spondylosis sustained during the course of his employment with the employer and, moreover, in regard to the plaintiff’s capacity for employment that although he does:
“… theoretically have some capacity for minimal sedentary work, realistically taking into account multiple factors including his age, training, skills, work experience, English language as well as the nature and severity of his work-related lumbar spine condition, it would be extremely unlikely for him to be able to obtain any suitable employment, and if he does it would be unlikely that he would be able to carry this out consistently and reliably.”[126]
[126]Exhibit P14, PCB 81
163 Dr Mittal, Pain Specialist, wrote in her report dated 28 March 2019 that the plaintiff is precluded from employment activities that would involve:
· Pushing, pulling or lifting
· Repetitive pushing, pulling or lifting
· Bending, reaching, twisting or stooping
· Prolonged sitting, standing or walking.
164 Dr Mittal assessed the plaintiff’s incapacity as moderate and continuing for the foreseeable future. She believed that he has a capacity to perform suitable employment but on a part-time basis.
165 Mr Batten in cross-examining the plaintiff put to him that he had placed substantial restrictions on himself in avoiding physical work. The plaintiff agreed that he told his contact James Sullivan at ProCare[127] at the time of a130-week vocational assessment, that he would not be willing to return to employment in the role of a delivery driver /warehouse worker. He said in answer to Mr Batten, “I cannot do a manual job like this”.[128] I am unconcerned by the plaintiff’s noted response to Mr Sullivan or his answer to Mr Batten and I am satisfied that the plaintiff’s assessment of his capacity is consistent with the medical opinion from both the plaintiff’s and defendant’s medical material.
[127]PCB 95
[128]T45
166 The plaintiff agreed that in answer to a case officer at ProCare having asked him what type of job he thought he would be able to do said “there is no manual job like driving or doing delivery or warehouse or something like that. A job in an office, behind a desk, comfortable chair and limited time.”[129] I find nothing exceptional or objectionable in the plaintiff’s evidence.
[129]T48
167 In August 2018 the plaintiff saw an occupational therapist, Mr Gleason at ProCare and whose report included as follows:
“Mr Banadaki advised he wanted to enter an area of work within his capacity that he could remain long-term. He advised that he was interested in further study. However the areas of interest, including training, would not be feasible-such as becoming a dentist, engineer or a solicitor.”[130]
[130]T55
168 One avenue of employment raised with the plaintiff by Mr Batten was undertaking training to qualify as Farsi interpreter. The plaintiff said that other than having had a conversation apparently with an interpreter at an asylum seeking organisation he had not undertaken any further steps to progress the possibility of training in such a field of possible employment.
169 The plaintiff did however say that he had been undertaking an English course at the asylum seekers centre in Footscray and had attended one class a week. He said the class was for eight weeks conducted on a Wednesday. He said that because he has to push himself physically and mentally to be able to sit in a class, concentrate on preparing themselves for testing or examination he had proved unreliable in terms of his ability to attend on time for the classes.
170 Dr Gedarzi wrote on November 2018 that the plaintiff was planning to take a course in water polo coaching but the plaintiff denied this[131] but he then said he did. But he could not remember when.
[131]T67
171 The plaintiff has not applied for any jobs. He was challenged in cross-examination by what the defendant contended was a lack of effort by him and that he was being selective in what he would regard as a suitable job. He said he believed that a suitable job would be one “that doesn’t increase his pain and a job that he can cope mentally with and one that would accept the limited times that I would be able to work together with a reasonable payment”.[132] Whilst on the face of his answer, it might be construed as being “picky” I was conscious that the mode of expression adopted by the plaintiff needs to be appreciated in the context of his life experience and that expressions or words that are used by a person for whom English is not their first language can sometimes appear abrupt. I did not conclude that the plaintiff’s answer did more than reflect what he believed he was capable of undertaking. In any event the answer in the circumstances was not objectionable and I have not drawn anything adverse from it.
[132]T60
Suitable employment
172 In considering the definition of no current work capacity I am satisfied that the plaintiff has established that he suffered an injury-caused inability to return to work in employment either by way of a return to pre-injury employment or suitable employment.
173 “Suitable employment” is defined in the Act to mean in relation to a worker, to mean employment in work for the worker is currently suited having regard to:
(i) the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, the certificate of capacity supplied by the worker;
(ii) the nature of the worker’s pre-injury employment;
(iii) the worker’s age, education, skills and work experience;
(iv) the workers place of residence
(v) any plan or document prepared as part of the return to work planning process;
(vi) any occupational rehabilitation services that are being, or have been provided to or for the worker.
174 Employment carries with it the implication of return to employment in a meaningful way. Hence more is warranted than a physical capacity to engage in the task or a series of tasks of an identified job because, naturally enough, if the ability to perform particular tasks was all that was required the other parts of the definition of “suitable employment” would rendered otiose.
175 I am satisfied that the plaintiff has established that there is no employment for which he is currently suited. The identified positions save for one appear to be full time positions as evidenced by the gross annual or median incomes expressed. Certainly they do not identify if they permit of part time hours and could be undertaken on a less than part time basis and perhaps on an increasing basis of hours worked up to say, 20 hours per week, as has been considered appropriate by Dr Yong.
176 Dr Eshraghi’s opinion dated 5 May 2019 was that the plaintiff has no current work capacity for employment that requires physical activities but that he should consider less active or even sedentary jobs. That is all well and good but then in regard to those positions that are sedentary they run afoul of the positioning tolerances or are not suitable due to the plaintiff’s lack of skills and competencies to perform in any event and or the reasons I have already expressed.
177 Certainly the plaintiff’s age is not a disadvantage to suitable employment when it considered. He is young, however, this advantage must be tempered realistically by his suitability for employment in the real world where he would be presenting with daily pain the intensity of which varies but for which medications are required and where sleep is disturbed because of pain and caries with the consequential effects of fatigue. The plaintiff said in answer to Mr Horner in cross-examination that his concentration is adversely affected by his pain. I accept his evidence.
178 The extent of the plaintiff’s education should be an advantage in the sense at least that his level of education obtained in Iran is indicative of an intelligent man for whom many tasks identified in the various jobs under consideration would be within his intellectual grasp. However, as far as his qualifications are concerned, he had not completed any degree by the time of his arrival in Australia as a refugee. In any event, I am not satisfied that the plaintiff would not be impeded in undertaking any of the positions identified as suitable due to educational or intellectual limitations.
179 The plaintiff’s skills and work experience since arriving in Australia has been exclusively those that have utilised his physical labour although that is not to conclude that but for his injury he would be restricted to such work.
180 I have addressed the matter of my assessment of the plaintiff’s felicity with spoken and comprehended English. His presentation in Court and indeed at medical assessments with an interpreter (whether greatly needed or not) is something apart from an ability in the everyday ongoing employment environment when customer contact, whether face to face or by telephone, is required on a regular basis. Work on a mushroom farm or in a warehouse and making deliveries and the apparent ability to have managed those tasks is not in my judgement the best comparator to a number of the jobs identified by the defendant as amounting to suitable employment and indeed several of the reports have thought the plaintiff’s English requires improvement.
181 The position of Warehouse Supervisor/Supply and Distribution Manager is one that has been described as requiring frequent sitting in offices and a high level of cognitive functioning with communication, interpersonal, administrative, organizational, logistics knowledge, planning, problem solving and decision making capabilities. The role is full time. It is not identified as available on a part time basis. Contrary to the opinion of the report’s author I do not regard the job as a strong functional and vocational match for the plaintiff. The plaintiff’s suite of medication is also a contra indication of a high level cognitive facility to perform the job.
182 The job of Light Delivery Driver/Courier is not one I am satisfied would amount to suitable employment. The physical demands of the job are that it would involve medium to heavy physical demands although not always but that it would involve stretching, twisting, climbing activities on an occasional to frequent basis and bending would be required frequently when lifting parcels from floor level or from the back of vehicles. Driving would be constantly required and flexibility of movement opportunities would be limbered. Hence on a reasonable analysis I am satisfied that it falls outside the plaintiff’s physical limitations and restrictions expressed by Dr Yong in any event.
183 I am not satisfied that the role of Administration Officer/General Clerk is suitable for the plaintiff for a number of reasons. First the role is described as requiring constant sitting at a workstation and of carrying out both manual and computerised data entry as well as word processing tasks. Hence the static nature of the position requiring the execution of tasks is contrary to the plaintiff’s need for flexibility in movement and, moreover, even the author of the report was attune to the plaintiff’s lack of communication ability particularly in written form to perform the job. Furthermore there is no indication that the role is able to be performed as part time hours. Hence collectively the need to transcribe information onto computers and proof read and correct copy whilst constantly seated at a workstation makes the job not suitable.
184 The job of Warehouse Clerk identified as one of the positions for which a site visit was conducted is expressed as full-time hours and requires sitting for the bulk of the working day and incidental bending from low shelves and in addition I am not satisfied that the technical aspects accord with plaintiff’s skill set.
185 The role of Rental/Customer Service Officer is one requiring full time hours and regular phone and face to face customer service. The fact of the matter is that whilst I have concluded that the plaintiff has a greater command of spoken and comprehended English than he would have had me accept, he nonetheless required recourse to the interpreter for clarification on a number of occasions. The plaintiff is not equipped for the job and the face to face customer service requirement.
186 The job of a Despatch Clerk – the role identified calls for full time hours and computer based tasks Full time hours whilst seated and would not meet the requirement for flexibility in the carrying out of tasks.
187 I have in reaching my conclusions on the plaintiff’s suitability for identified employment, not just compared and contrasted the opinions of those who have commented on the plaintiff’s residual capacity and suitability for identified jobs, but I have also taken into account the plaintiff’s evidence in answer to counsel for the defendant in cross-examination on some of the identified roles and the plaintiff’s evidence in re-examination. Despite the plaintiff accepting a capacity to perform some discrete aspects of a job, suitable employment calls for an overall consideration of capacity to perform employment as opposed to a proved capacity to do some parts of some job for some period of time. The evidence that I have accepted and preferred are those of the plaintiff’s treaters from whom limitations and restrictions have been identified as well as the plaintiff’s evidence including the effects to him of his injury including those wrought by his medications.
188 In light of my finding that the plaintiff has proved to my satisfaction that he does not have a capacity for suitable employment it has not proved necessary for me to make findings on the criticism levelled at the plaintiff of his efforts of rehabilitation and whether he had unreasonably failed to engage in rehabilitation programs. Had it been required of me, I would not have concluded that he had. The plaintiff’s impairment and the consequences to him sufficiently account for his conduct and extent of engagement with the various providers.
Pain and suffering consequences
189 Because I am satisfied that the plaintiff has established that he has no capacity for suitable employment and therefore has discharged his proof in that regard, then he has satisfied me of his entitlement to a certificate for pecuniary loss damages, that is, he has proved that he has suffered a loss of earning capacity of 40 per cent or more that is likely to be permanent. It follows, therefore, the requirements of the Act in relation to pain and suffering damages have also been satisfied. I would refer to the decision of the Court of Appeal in Advanced Wire & Cable Pty Ltd & Anor v Abdulle.[133]
[133][2009] VSCA 170
190 In the event my finding about the plaintiff’s capacity for suitable employment is wrong, then in any event, I am satisfied that the obvious impact upon the plaintiff’s everyday life emanating from his low back injury is sufficient to satisfy the narrative test for the grant of a serious injury certificate for pain and suffering. Now in terms of pain and suffering and beyond the matters I have referred to earlier that were deposed to by the plaintiff, he described pain that varies in its intensity anywhere between 2/10 to 8/10[134]. The plaintiff said he experiences pain every day[135]. Therefore, the plaintiff is experiencing chronic pain. He is never pain free.
[134]T92-93
[135]T91
191 Moreover, the plaintiff continues to take a significant level of prescribed pain medication. When asked whether he had tried to reduce his medication, he said that he had but when he tried to do so, its efficaciousness was reduced. A requirement to take not insignificant amounts of medicines on an ongoing basis in order to manage pain is a matter of some consequence particularly in a relatively young man as also is a real as opposed to a remote chance of surgical intervention. He complains of sleep disturbance as well as a decreased social life.
192 In virtually all aspects of endeavour the plaintiff’s life is very much disadvantageous by comparison to the life he had before the injury.
193 The medical evidence is sufficient to identify that the plaintiff is suffering a long-term serious impairment to his low back. Whilst the mechanism of injury was hotly disputed by the defendant, the fact that the plaintiff’s function has been impaired due to the back is not. Satisfied as I am about cause, the plaintiff is entitled to succeed on both heads. I grant the plaintiff’s application and I will hear the parties on the form of final orders.
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