George v Victorian WorkCover Authority
[2025] VCC 360
•1 April 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-24-03947
| MICHAEL JAMES GEORGE | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 March 2025 | |
DATE OF JUDGMENT: | 1 April 2025 | |
CASE MAY BE CITED AS: | George v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 360 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – impairment of the spine – credit – surveillance film – pain and suffering – loss of earning capacity
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s335(2)(d)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Dordev v Cowan & Ors [2006] VSCA 254; Woolworths Limited v Warfe [2013] VSCA 22; Cakir v Arnott’s Biscuits Pty Ltd [2007] VSCA 104; Church v Echuca Regional Health (2008) 20 VR 566; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Kelso v Tatiara Meat Company Pty Ltd (2007) 17 VR 592; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326
Judgment: Leave granted to bring proceedings for damages for pain and suffering and loss of earning capacity.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mighell KC with Mr T Nathanielsz | Prime Injury Lawyers |
| For the Defendant | Mr W R Middleton KC with Ms S Fernando | Wisewould Mahony |
HER HONOUR:
1This is an application for leave to bring proceedings pursuant to s335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (“the Act”) in relation to an incident at work with King Personnel Pty Ltd (“the employer”) on 25 November 2020 (“the said date”).
2The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity.
3The body function said to be impaired is the spine.
4The plaintiff bears an overall burden of proof upon the balance of probabilities.
5By s325(2)(b) of the Act, the impairment must have consequences in relation to pain and suffering which:
“… when judged by comparison with other cases in the range of possible impairments, or losses of a body function or disfigurement, as the case may be, fairly described [as at the date of the hearing] as being more than significant or marked, and as being at least very considerable.”
6I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
7Subsection s325(2)(h) of the Act provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
8In this application, where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of 40 per cent or more, both at the date of hearing and permanently thereafter.
9Subsections (2)(e) and (f) recite the formula by which loss of earning capacity is to be measured.
10Subsection (2)(g) requires questions of rehabilitation and retraining be considered in determining whether the 40 per cent loss has been established.
11I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[1] and Haden Engineering Pty Ltd v McKinnon[2] in reaching my conclusions.
[1] (2005) 14 VR 622
[2](2010) 31 VR 1
12The plaintiff affirmed two affidavits and was cross-examined. He also relied on an affidavit affirmed by his cousin, Rachel George, on 4 March 2025 and his sister, Sheryl Lee George, affirmed on 3 March 2024. Also in evidence were medical reports and other material. I have read all the tendered material.
Plaintiff’s evidence
13The plaintiff is presently aged thirty-three, having been born in March 1992.
14He completed Year 10 and then did factory work as a labourer and ultimately as a team leader, for about ten years until the factory closed. He then worked with Essential Flavours as a spray dry operator for about eighteen months. He was about twenty-five years old[3] when working in this role, basically making liquid artificial flavours into a powder.[4]
[3]2017 financial year - $36,788
[4]Transcript (“T”) 11
15The plaintiff then joined the employer as a labourer. He was working for the employer when he was injured, but he was deployed to work for Unitex Australia Pty Ltd, where he had worked for a couple of months before his injury as a full-time casual.
16As at the said date, he was earning $1,852 per week.
Pre-incident medical condition
17In his first affidavit, he detailed his earlier back complaints.
18September 2011, he had an episode of lower back pain for which he was prescribed Mobic, and subsequently made a full recovery.
19In April 2012, he was involved in a car accident where he cut his right arm and made a full recovery.
20In June 2012, he had an episode of back pain, following which he made a full recovery after a few days.
21In January 2013, he had an episode of back pain, following which he made a full recovery after a few days.
22In November 2016, he saw Dr Nasralla, general practitioner (“GP”) about acute back pain and was prescribed Voltaren Rapid, and made a full recovery.
23He could not remember telling Mr Siu, neurosurgeon, on examination last year that he had not had any problems with his back before the incident. He has trouble sleeping, so his memory is not good.[5]
[5]T11
24He was taken to his GP’s clinical notes commencing in September 2011:
·6 September 2011 – “Came with lower back, muscle spasm, doing a lot of bending at work” and prescribed Mobic. He agreed he took that medication.[6]
·19 June 2012 – “upper back pain, happened at work, muscle tenderness” and “muscle strain”. He agreed he was prescribed Voltaren, which he took.[7]
·21 June 2012 – “back pain is worse this morning, on Brufen”. He agreed he took the Brufen.[8]
·12 January 2013 – “Complained of back pain, 1/7.” He thought he took Brufen that was prescribed then.[9]
·15 January 2013 – “After a clearance certificate had muscular back pain, now fine, work in factory.”[10] He did not really have any memory of what was happening in January 2013, twelve years ago.[11]
·3 October 2016 – “back muscle pain, muscle sprain” and he was prescribed Voltaren Rapid. He agreed he took that medication.[12]
·4 October 2016 – back pain was worse and there was a medical certificate. That did not really trigger his memory at all.[13]
·15 November 2016 – “lower back pain”. He agreed he was having trouble with his lower back then, and his upper back from time to time. He did not think any back pain was affecting his ability to work.[14]
·20 February 2018 – “back pain at work, happened suddenly with heavy lifting”. He agreed he was getting back pain from doing his job from time to time, causing him to go to his doctor.[15]
[6]T12
[7]T12
[8]T12
[9]T13
[10]T12
[11]T13
[12]T13
[13]T13
[14]T13
[15]T14
25He confirmed he made a full recovery after each episode of back pain – “Well I did. I returned to work without any problems,” although he conceded he was going to the doctor.[16]
[16]T14
26The next entry was 24 April 2019 – mechanical back pain and prescription of Panadeine Forte. He did not remember that episode. He again confirmed he did make a full recovery and he returned to work.[17]
[17]T14
27While an entry of 14 August 2020 mentioned Lakeside Physio, he was not sure that he went there. He could not remember going there or to see any other physiotherapist at that time.[18]
[18]T15
Other medical issues
28The plaintiff had depression on and off over the years and tried to see a psychologist many years ago. He was able to get on with life without treatment, as work made him feel better.
29Since the incident injury, he had been diagnosed as suffering from a heart condition for which he takes medication and remains under the care of a heart specialist, Dr Mohammed Alasti. He had undergone various investigations for that condition.
30He attended the Victorian Heart Hospital in May 2024 for review of his heart condition. He had a scan, which he was told showed heart failure, but the treatment was to adjust his medications. He remains on medication and his condition is well controlled, and largely asymptomatic.
31He did not think his heart condition limited his ability to do physical work. It is asymptomatic; there are no symptoms.[19]
[19]T41
The incident
32On the said date, he was working on a concrete cylinder which was very heavy. It was on a pallet and the pallet was on the tines of the forklift but not strapped down.
33The cylinder started to roll off the pallet as the forklift went to lift it. The plaintiff was worried the cylinder would fall on a co worker so he tried to stop it from falling by grabbing and pushing it back onto the pallet (“the incident”).
34In performing this movement, the plaintiff had to do a forced sharp downward movement of his spine which jarred his back. He suffered an injury to his lumbar spine and immediately thereafter had lower back pain.
35This description of the incident was true after being shown his Claim Form dated 9 December 2020, where he set out the incident occurred lifting a concrete frame with one of the new guys, and when they lifted it off the table his back gave way. What he put in the claim form was not the truth.[20]
[20]T42
36After the incident, the plaintiff tried to play it off a bit thinking it would settle down and tried to keep working but could not. He was unable to straighten up. He went straight to the doctor and was prescribed Panadeine Forte and told to rest.
37He did not know why when he saw the GP on the said date, the clinical note that day, simply read – “Mechanical low back pain. Need medical certificate.” There was no mention that this happened at work.[21]
[21]T15
38He tried to return to work the next day, but, again, could not because of pain, and was sent home by the manager.
39The plaintiff returned to his GP and was sent for scans, which he understood showed multiple disc bulges.
40He had physiotherapy in Pakenham for about five months after the incident until April 2021 when his physiotherapist went on maternity leave. The treatment was helpful, though he remained in extreme pain and had difficulty sleeping and moving.
41He saw his GP for his back issues until April 2021 and did not go back to the doctor about his back until 30 December 2022.
42He agreed there was an excess of thirty-five visits in that period where he consulted his GP but never mentioned his back. This was the case because he was managing it himself. He was taking just Nurofen.[22]
[22]T16
43He agreed, as Mr Siu reported, that when asked about this gap in treatment, he told him that he was in severe pain, so much that he could not drive himself to see the GP. He was serious about that answer.[23]
[23]T17
44The plaintiff resumed physio in December 2022 at Physio On.
45On 30 January 2023, Dr Nasralia recorded that the plaintiff was –
“… suffering from LBP for a long time. … He was feeling better and now pain was getting worse. There is exacerbation of his back pain of old injury by more physical work. He is seeking physio for his back pain and injury. Also he is taking pain medication. The pain started recently and he was feeling better since last time.”
46The plaintiff agreed he had been suffering back pain for a long time way past 25 November 2020 – “on and off”. He resumed treatment in late 2022. He disagreed there was a gap in his pain before that, he just did not go to see the doctor about it.[24]
[24]T40
47Treatment then included:
· January 2023, lumbar CT scan
· April 2023, CT-guided steroid injection, helpful in relieving leg pain, but not back pain
· 27 June 2023, neurosurgeon, Mr Craig Timms, suggested conservative treatment
· July 2023, further injection which helped, but for a much shorter period than the first injection
· November 2023, referral to pain specialist, Dr Gavin Weekes, who recommended a nerve block injection which was helpful alleviating leg pain and helped reduce back pain, but part of the lower back remained very painful
· 17 January 2024, bilateral sacroiliac injections under anaesthetic which helped the pain and weakness in his right leg.
48As at March 2024, he tried to manage his pain with Panadeine Forte, but was not taking it every day, perhaps two to three times a week. He otherwise took four Nurofen a day and Norgesic daily. He took melatonin to help him sleep and no longer took sleeping tablets.
49He tried to get back to work with the employer but was told they had no work.
50He thought he had had about six months off work after the incident and then worked as a traffic controller from 23 May 2021 to 20 April 2022, having been requalified in this role through a return to work specialist organised by Allianz.[25]
[25]T38
51Some days at work his back was a bit sore, but it was mostly manageable. He moved to Phillip Island to do that job but when the job was finished, there was no more work in the area. The work moved back to Melbourne, but he was in Phillip Island. He moved back to Pakenham.[26]
[26] T40
52He worked full time, ten to twelve-hour shifts every day, Monday to Friday, going from standing to sitting down.[27]
[27]T38
53He agreed he would still have been able to work in the traffic controller job, but that job dried up in Phillip Island; “they finished building”. He then said, if the job had kept going, he did not think he would have kept going.[28]
[28]T38
54His team manager knew he had hurt his back. She tried to make it so it was as easy as possible. She would give him positions where he could stand and sit freely, rather than being stuck on the bat.[29]
[29]T46
55He was left wondering what work he could do and thought he could re-qualify himself in disability, as he knew that did not require heavy work. He did a six-month course Certificate III in disability support work online after a period off work.
56He obtained work in disability in his cousin’s business, Premium Regional Disability Care, where he worked full time from 19 August 2022 to 14 January 2023. However, his back pain continued to worsen due to the significant amount of driving required. He has been off work since.
57The job was Monday to Friday, like eight to ten hours a day. “We’d go to … [people’s] houses and pick them up and take them out in the community.”[30] The work was light as his cousin deposed.[31]
[30]T38
[31]T44
58He would have liked to stay working in disability work – “It is not lack of motivation; I don’t think.” He disagreed from what was shown on the surveillance film that he could work.[32]
[32]T45
Condition as at March 2024
59He struggled psychologically and had required ongoing treatment with Mr Clinton Batty, psychologist.
60He had continued to experience constant lower back pain. As a result, he struggled to sit, stand or walk for prolonged periods because of that pain, and any task requiring him to bend, lift or twist, he found very difficult.
61Ordinarily, pain and weakness referred down to his right leg, but at that stage, that had abated with the most recent round of injections. Prior thereto, he was still experiencing instances of his back curling him into a cowering position.
62He particularly found it hard and painful to lie down, which made it difficult to get to sleep. After a while when he woke up he was in a lot of pain and then found it very hard to get back to sleep. This compounding lack of sleep left him feeling tired and lethargic throughout the day and affected him mentally. Pretty regularly he did not sleep consecutive nights due to pain when he had not taken a lot of pain medication.
63When he was injured, he was living with a housemate and her three-year-old daughter. He and his housemate split the indoor chores 50/50, but he did the outside work.
64After his injury, they continued living together and his housemate had to take on the majority of tasks. This persisted for a few months when he went back to work and was able to pick up a few light chores here and there, but never fully able to get to his pre injury level of housework.
65He moved to Phillip Island to live with his sister and her family. There was not a lot of housework, but he would occasionally help by doing the lawns.
66On 3 October 2023, his physiotherapist in Wonthaggi at My Physio accurately reported that the plaintiff’s back seized up and he could not move for two hours after his niece, who is non-verbal and autistic, jumped on him from a table.[33] He ended up with bruises in many places, including his face. The incident did not aggravate his back – it was more him attempting to catch her that “just kind of dropped” him.[34]
[33]T39
[34]T40
67As at March 2024, he was living with his younger brother and friend. At least once a month he tried to do the lawns, but it aggravated his back, but it helped him feel like he was pulling his weight. He relied on others to do the mopping.
68Aside from lawns, he used to be very active in the garden and now felt as though, if he bent over to weed, he could well get stuck in that position.
69Driving more than twenty minutes aggravated his back to the point where he had to pull over and wait for it to settle down.
70He had been a keen gamer since he could remember and had hundreds of games which he played with his mates and was still having LAN parties, even just prior to his injury. Sitting for prolonged periods aggravated his back, so playing was very problematic for him. He thought it would be difficult for him to handle his desktop to take it to a party and he would struggle to get to parties which were held all over Victoria.
71Post injury, he started a new relationship, but found sex very difficult and painful. That had an adverse effect on the relationship, which ended after four or five months, and although there were other reasons, that was a substantial reason.
72He did not feel he could date. If he met someone and started to talk to them they wanted to go out and do active things, which he felt he could not do.
73His relationship post incident lasted maybe two or three months. He agreed he was able to form a friendship and partnership for that short period.[35]
[35]T44
74Most of his life was based around work. It upset him greatly that he would not be able to return to the manual kind of work he had done previously.
75Work had always been something he had enjoyed and he had been really passionate about.[36] He could not remember any other periods of unemployment, apart from 2020 when he received Centrelink.[37]
[36]T10
[37] T9; $9,891
76He was then waiting to hear back from Allianz, but he did not think he could work reliably as a traffic controller due to his issues with sleep, standing and back pain, and he would be limited to local jobs due to the difficulties he had driving. Unless he could work out his sleep and driving issues, he could not see how he could get back to the disability work in his current state.
77He was continuing to struggle with depression and anxiety and the experience of constant ongoing pain tended to wear him out, together with lack of sleep.
78As of 21 February 2025,[38] his condition has remained much the same and he continues to experience the same symptoms and consequences.
[38]Second affidavit affirmed 21 February 2025
79He has never been completely free of back pain since the incident.[39]
[39]T46
80He has difficulty sleeping because of back pain
81Dr Weekes ultimately recommended he proceed with a bilateral L5-S3 radio denervation, which he subsequently had on 5 June 2024. It was initially successful, in that it alleviated almost all of his leg pain for a while, but then, gradually, over a course of around six months, the pain returned to its usual severity.
82The denervation was performed a couple of months before the video in August. It actually led to an improvement in function and in his ability to do things and lift. “It helped a lot.”[40]
[40]T46
83There was an improvement with the injections – ranging from six, seven months, to one that lasted only a couple of weeks.[41]
[41]T45
84He found a pain management program through Precision Ascend somewhat helpful in teaching him strategies to deal with pain, but he remained in significant pain and remained restricted.
85Dr Weekes referred him to neurosurgeon, Dr Hazem Akil, in October 2024, who advised surgery was not required.
86In March 2024, he passed out. He was having very bad back pain that day, but had promised to visit his sister to help with the kids. After leaving the house, he pulled over on the side of the road with very bad back pain and lost consciousness beside his car. When he awoke, someone was standing over him and he vomited on himself.
87Dr Weekes referred him to neurologist, Associate Professor Ramesh Sahathevan, who sent him for further scans. That doctor advised him, on receipt of the scans, that the reason for the March event was likely to be his extreme back pain and that no further investigations were required.
88He understood from Dr Weekes that his last remaining option was the insertion of a spinal cord stimulator, but he did not want to have such an invasive procedure.
89He was not getting enough relief from Panadeine Forte, so his medication was changed to Palexia, 50 milligrams, which he takes nightly together with Pregabalin, 25 milligrams. At night, he also takes two Norgesic tablets and amitriptyline. He also takes four Panadol Osteo tablets during the day.
90The treatment program going forward is just physiotherapy exercises until the pain management program stops.[42]
[42]T44
Surveillance film
91Before the film was shown to the plaintiff, he confirmed what he had told a number of examiners about his various physical restrictions because of his back pain.
92Katrine Green’s January 2025 report accurately listed his tolerances at that time.[43] The list was all pretty accurate, but on the advice of his pain management program, he tried to go beyond them.[44]
[43]T19
[44]T21
93He has moved to a house where he no longer has to do gardening and is limited to very light cleaning tasks around the house.
94He has been given assistant tools to help with housework. He lives with his cousin, who manages the disability support company.[45] He currently sweeps the floor, he mops using a standing mop, and he puts the bins out. There is not really much to do at the house.[46]
[45]T21
[46]T22
95Driving more than twenty minutes will aggravate his back, as does sleeping, lying down. He agreed he had similar problems lifting even 5 kilograms, depending on the movement. He certainly would not lift more than 5 or 10 kilograms, beside the physiotherapy exercises, not normally in a day.[47]
[47]T22
96Dr Awad accurately reported the plaintiff’s tolerances on examination in November 2024.[48] He was able to shop on a good day but only carried light bags and sometimes had to walk out of the supermarket leaving his trolley behind, because his symptoms were “too high.”[49]
[48]T22
[49]T23
Surveillance film
97There was 46 minutes of film taken on 12 August 2024, commencing at 7.15am.
98The plaintiff was shown in front of his house in Pakenham loading his car and trailer.
99He was shown carrying a toolbox, which he thought weighed about 30 to 40 kilograms, and putting it in the trailer.
100He did not suggest that that was one of his good days. He had to take all his pain medication before he moved house. He was not sure if he saw himself evidencing restriction in his lower back. “I don’t know how it felt, I don’t know how to visually identify it.”[50]
[50]T27
101He had to move from Pakenham to Officer. He could not afford movers, so he had to do it himself. He moved dumb bells, each weighing 12.5 kilograms. He moved a bookcase which weighed maybe 5 or 6 kilograms. It was just awkward to lift an office chair into the trailer. He could not see any restriction on his ability to lift that chair.[51]
[51]T28
102He lifted his bed base and mattress. These were really awkward because they were very big. He did not know how much the mattress weighed; he did not think it was 20 kilograms.[52]
[52]T28
103He was then shown at his new house in Officer at about 11.45am, where he had unhooked the trailer himself and pushed it into a parking spot. He had help to undo the trailer. His cousin, Rachel, came back shortly after this.[53]
[53]T29
104He agreed, in this film, which commenced at 7.15am on 12 August 2024 until he parked his car at 11.53am, over a period of four-and-a-half hours, he was actively engaged in loading and unloading his car and trailer but said he cannot work.[54]
[54] T29
105Counsel for the defendant acknowledged that there was no footage between 8.18am and 10.40am.[55]
[55] T27
106A second film shown was shown taken on 31 January 2025 of 31 minutes’ duration, starting at 8.26am.
107Six minutes into the film, the plaintiff was shown at Amart Furniture in Pakenham loading a washing machine into his car, with the assistance of cables around it. He did not think it was one of his better days when that was suggested to him.[56]
[56]T32
108He was then shown arriving at the gym at 11.07am, coming back to his car at 1.56pm. While at the gym, he does physiotherapy exercises, goes on the treadmill and talks to the staff. He usually does weights on the machines. He tries to go every day.[57]
[57]T33
109He was shown later that day, at 2.30pm, unloading a trolley of groceries, and later, back at his house, unloading the shopping.
110He agreed that day, as the film showed, he got in his car at about 9.28am and he was out until 2.30pm. He agreed he was lifting a washing machine; he was not sure how much it weighed, but he was able to move it.[58]
[58]T34
111Film was then shown on 1 February 2025, commencing at 8.51am. The film jumped to 9.20am, when the plaintiff was shown filling his car at Caldermeade.[59] He honestly did not think he could work as a console operator at a petrol station. It would be the same issue, just lack of sleep and pain.[60]
[59]T34
[60]T35
112He was then shown outside his sister’s house at Dalyston at 10.11am on 2 February 2025.
113He was filmed loading items – an old mattress and a washing machine – to take them to the tip and unloading them at the tip. He was then shown in Wonthaggi, having driven his nephew there to get new school clothes.[61]
[61]T36
Work future
114He has not been able to return to work because of his back condition. He does not know what other work he would be able to do given the limits of his education, training and experience, but also given the nature and extent of his lower back injury.
115He has not applied for any jobs since leaving the disability work. When it was suggested he was content to stay on payments, he said he did not really have any other option. He could look for work, but whether or not someone would actually hire him was a different story, but he had not actually applied for work.[62]
[62]T29
116He was seriously suggesting that, having seen the surveillance film, he was incapable of doing anything. “I remember that day and I knew it was gonna be bad, so I took my normal day’s medications, the pain medication in the morning before I went and I suffered afterwards as well, but I had no other choice … .”[63]
[63]T30
117He could not work as a parking inspector reliably, because he does not sleep; he sleeps every second night and the pain keeps him awake. He did not believe he could go around giving tickets in that job.[64]
[64]T30
118He could not do the suggested job of a process worker in Dandenong South. He could not stand at a process line for seven hours. He was struggling to stand here now (in the witness box) without pain, “Like my back’s aching”.[65]
[65]T31
119He disagreed that he showed capacity to do physically demanding work.[66]
[66]T37
120He confirmed he could not do the parking officer job. He disagreed he could work as a traffic controller. He agreed, no matter what job was suggested, he would say he could not do it.[67]
[67]T37
121He could not do that disability work now, although he could drive his nephew to Wonthaggi, because he could not be trusted to. “When I have really bad flare-ups my back seizes up and it basically puts me on the floor. If I was caring for someone that couldn't look after themselves it would put them at risk.”[68]
[68]T39
122$53,123 in 2019 was the highest amount he had earned. His earnings in the 2022 financial year of $49,709, two years after the incident, was probably work as a traffic controller and disability work.[69]
[69] T43
123He disagreed he could work in a job where he would earn that sort of money again. “Everything that I’ve gotten said I wouldn’t be able to and I don’t believe I would be able to either … Well, in like my normal doctor, my GP, said that he doesn’t think I’ll be able to return to work.”[70]
[70]T44
Summary of income tax returns
Financial Year Gross Income from Personal Exertion Other Income 2024 $0.00 $45,750.00 2023 $18,438.00 $26,314.00 2022 $49,709.00 $3,948.00 2021 $22,313.00 $18,774.00 2020 $20,752.00 $9,891.00 2019 $53,123.00 $0.00 2018 $43,768.00 $0.00 2017 $38,716.00 $0.00
Lay evidence
Sherryl Lee George, plaintiff’s sister – affidavit affirmed 3 March 2025
124Ms George has three children, two of whom are autistic and non verbal. The plaintiff lived with them for about four years, moving out in early 2024.
125They live in Dalyston, about an hour’s drive from where the plaintiff lives. He has not visited much since he moved away. Sometimes he has cancelled visits because of back pain and it takes him a while to get there.
126Pre-injury, the plaintiff was very active and outgoing. He went hiking regularly and seemed to enjoy the outdoors. He was also positive and happy, but since the injury, she had not seen him go hiking or be as active as he used to be.
127The plaintiff really loves her kids and before his back injury, while living with her, he helped take care of the two younger children, who require hands-on care with all tasks of daily living.
128The plaintiff helped by changing them, bathing them, feeding them and playing with them. This hands-on situation changed after his injury and he could no longer help.
129When the plaintiff was living with her, she often saw him experience flare ups of back pain. Sometimes she saw him become stuck on the ground, unable to move because of the severity of the pain, and sometimes he could not move for at least an hour.
130When this happened, the plaintiff would usually lay down and tell her about the pain and be unable to do much else other than rest.
131She noticed the plaintiff’s pain and restrictions had impacted his mental health. Pre-injury, he was a happy, gentle giant, but since his injury, he has become snappy, irritable and quick to anger and also become quiet and withdrawn at times.
Rachel George, plaintiff’s cousin – affidavit affirmed 4 March 2025
132Ms George currently lives with the plaintiff in Lang Lang.
133She has worked in disability support for about twelve years and is the sole director of Premium Disability Services, a NDIS provider, specialising in providing clients with home assistance and community access. She has been operating her company for about three years.
134The plaintiff started working for her in about August 2022 and worked five days a week. He, together with three other employees, mainly provided care for two eighteen-year-old boys who suffer from Pica Disorder. They provided both boys with community access, and, because of the nature of their disorder, required constant supervision.
135The plaintiff’s duties did not require manual handling. It was light work as both boys were ambulant. The plaintiff would mostly go for walks with them, take them to gardens, movies and like activities. Both boys required assistance with toileting, but the extent of the assistance was generally with clothing, such as pants.
136The plaintiff was also required to drive, sometimes long distances.
137During the plaintiff’s employment, some months after he started, she started to notice he could not walk properly, he started to take days off and could not drive long distances.
Plaintiff’s medical evidence
Treaters
Dr Youssef Nasralla, general practitioner
138He has been the plaintiff’s general practitioner at St Antony Medical Centre in Pakenham since 2011.
139On 17 November 2023, he referred the plaintiff to Precision Brain, Spine and Pain Centre.
140In his April and October 2024 reports, he noted the plaintiff had been suffering from lower back pain for a long time since the end of 2020.
141The plaintiff was feeling better with local steroid injection and now the pain was getting worse. There was an exacerbation of his back pain from an old injury by more physical work. His pain was getting worse.
142The plaintiff was seeing a pain specialist and feeling better after the nerve block and pain was recurrent. There was a plan for a L5-S3 radiofrequency and denervation.
143The plaintiff had been unable to work since the start of 2023 because of his recurrent back pain. His physical injury impacted on his mental health with anxiety and low mood changes. He had limited ability for education and retraining for new work.
144The plaintiff had a recent cardiac MRI scan showing non-ischemic MEF, 47 per cent, which again limited his physical work.
145As at October 2024, the plaintiff had no ability for heavy lifting and bending and all other physical activity, and he will not be able to do any similar physical work.
146Recently, Associate Professor Ramesh Sahathevan, neurologist, advised the recent dizziness was considered syncope related to the plaintiff’s significant pain.
147The plan was for a brain MRI scan and EEG.
148The plaintiff was also seen by a surgeon who stated no surgery was required.
149Dr Nasralla continues to provide certificates for total incapacity on the basis of the plaintiff’s back condition.
Physio On – Officer
150The plaintiff commenced treatment with Mr Abozeid in December 2022.
151Mr Abozeid was asked to comment on the gap in treatment between April 2021 and commencing treatment with the plaintiff.
152He noted the plaintiff finished his physiotherapy and treatment program in April 2021 with reported no pain after the following year. He went back to his regular duties and daily activities without any complaints. In the last three to four months, he had started to feel pain catching on his lower back and disturbing his sleep.
153He believed the plaintiff’s complaints were related to the same work-related injury in 2020, and there was no cause or signs of an acute or different new injury.
154He suggested funding for a pool membership in April 2023 and use of a back brace in July 2023.
Saurabh Gupta, My Physio – Wonthaggi
155The plaintiff was first seen on 26 July 2023.
156The diagnosis was multiple disc bulges in the lower spine and mild left L5 nerve root compression. The diagnosed injuries were consistent with the stated cause.
157When last seen on 3 October 2023, it was noted the plaintiff had a big incident the previous week where he had a fall when his toddler niece jumped on him from a table and he fell on the ground and could not move for the next two hours and was then moved to bed. He took pain medication and ended up with bruises on his face.
158The plaintiff decided to move back to Pakenham away from the toddler for their safety.
159The plaintiff reported a near similar incident happened a fortnight earlier when the plaintiff was camping and his back seized acutely. He did not have any injuries that time.
Mr Craig Timms, neurosurgeon
160The plaintiff saw Mr Timms on referral from his GP in June 2023.
161At that stage, the plaintiff had stopped working in disability due to an aggravation of his symptoms, particularly driving, which caused pain in his back.
162In the absence of constant severe sciatica and leg weakness, he did not think the plaintiff required any neurosurgical operative intervention and suggested a CT-guided L4-5 epidural steroid injection.
163If the plaintiff could regularly undertake walking and any other core building exercises, such as Pilates, that would also help him. The main thing was that if the plaintiff was able to get his core muscles fitter, stronger and flexible, he should hopefully be able to return to his disability support work.
164The plaintiff remained incapacitated for his pre-injury role.
165The diagnosis was a lumbar L4-5 disc bulge with facet joint arthropathy as well as a lumber L5-S1 disc injury.
Pakenham Lakeside Physiotherapy, Matthew Venn
166The plaintiff first presented on 23 October 2023, wanting to see someone closer than Wonthaggi, as he was living in Pakenham. He had sixty-seven visits until August 2024.
167The diagnosis was L4-5 disc bulge with possible nominal compression of the traversing right L5 nerve root and mild compression of the traversing left L5 nerve root secondary to a disc osteophyte complex at L4-5.
168The plaintiff was restricted in lumbar flexion, extension and rotation. Mr Venn recommended he avoid lifting greater than 5 kilograms and repetitive bending, lifting and twisting.
169He did not believe the plaintiff had the capacity for unrestricted pre-injury duties. The plaintiff had the ability to engage in most activities of daily living, but would need to accommodate for his restrictions as a result of his lumbar spine injury accordingly. The plaintiff should restrict activities involving repetitive bending, lifting greater than 5 kilograms, prolonged sitting and standing for greater than one hour.
170The plaintiff will need to manage his work and lifestyle around looking after his lower back and preventing further degenerative changes or acute exacerbations.
Dr Gavin Weekes, pain specialist
171The plaintiff was referred by his general practitioner to Dr Weekes in November 2023.
172On 17 January 2024, Dr Weekes carried out a bilateral L5 lateral branch block plus bilaterial sacroiliac joint block.
173When seen on 31 January 2024, the plaintiff reported about 70 per cent pain relief and was pretty happy with the result, although he had an area of pain right in the centre persisting at L4-5.
174The plaintiff was happy at that stage to continue physiotherapy. He noted the main issue for the plaintiff was decreased capacity to sleep and obviously he was still out of work, so he had asked one of the occupational specialists to have a talk to the plaintiff to give him some options.
175On 5 June 2024, Dr Weekes carried out a bilateral L5-S1 radiofrequency denervation.
176He caught up with the plaintiff two weeks later when the plaintiff reported quite significant reduction in pain. The plaintiff had noted some sexual dysfunction though and had numbness in his perineal region. He asked the plaintiff to have an update MRI scan of his lumbar and sacral spine to rule out any complications from the procedure.
177The diagnosis was lumbosacral spondylosis with evidence of bilateral sacroiliac joint pain consistent with the stated cause.
178As at June 2024, the plaintiff did not have any reasonable capacity for unrestricted pre-injury duties. The incapacity would continue for the foreseeable future.
179The injuries were organic in nature because the plaintiff had presented with signs and symptoms, and radiological evidence of sacroiliac joint pain.
180Dr Weekes caught up with the plaintiff again in late November 2024. The plaintiff had then decided not to proceed with the trial of peripheral field neuromodulation. He explained to the plaintiff he did not have much more he could think of to help with his pain.
181Taking into account the plaintiff’s lumbar spine injury alone, he thought the plaintiff has no realistic capacity to work in a sustained, permanent, reliable and consistent basis and without risk of re injury or aggravation of his lumbar spinal condition.
Mr Clinton Batty, psychologist
182Mr Batty provided counselling to the plaintiff for his work-related injury from mid-2023 to address his adjustment to disability following that injury.
183By 4 August 2024, he had seen the plaintiff twenty-five times, carrying out a variety of treatment modalities.
184The plaintiff described a range of depressive, anxiety and stress symptoms.
185There had been almost no improvement in the period of treatment and he suggested further treatment for a considerable period of time.
Associate Professor Ramesh Sahathevan, neurologist
186Dr Weekes referred the plaintiff for assessment of an unwitnessed episode of loss of consciousness that occurred in March 2024.
187The plaintiff reported that on that day, he suffered an exacerbation of his underlying back pain. When he drove to his sister’s house, he felt significant pain in his back and had to pull the car over on the side of the road and then lost consciousness. He awoke to see a passerby knocking on his car window and found he had vomited over himself. He felt approximately two hours had lapsed from the time he felt pain and regaining consciousness.
188The plaintiff reported that while he had had significant episodes of pain in the past, he had never passed out because of them.
189The plaintiff’s heart condition was largely asymptomatic and had no symptoms suggestive of congestive cardiac failure.
190On the information provided, the plaintiff probably had a syncopal event in a setting of significant back pain and referred him for an MRI scan of his brain and an EEG, and suggested driving restrictions may be necessary.
191He wrote to Dr Weekes on 26 November 2024, advising the plaintiff had been well since last seen and had no further episodes.
192The findings on the suggested investigations were normal.
193He explained to the plaintiff, based on the information the plaintiff provided, the most likely explanation for his syncopal event was a reaction to the extreme pain he felt in his back.
Dr Hazem Akil, neurosurgeon
194Dr Akil saw the plaintiff in November 2024 on referral from Dr Weekes.
195The plaintiff then complained of significant midline lower back pain radiating to the right side. That pain radiated down to his right hip and affected the lateral aspect of his right thigh towards halfway to his knee. The pain was described as constant and worse when sitting longer than fifteen to thirty minutes and standing. Lying could also make the pain worse. On a bad day, bending was extremely difficult and he could find it a struggle to put on his shoes and socks.
196The plaintiff did have previous lower back issues but that was years before the incident.
197On examination, forward flexion of the lumbar spine was possible with the plaintiff’s hand reaching his knee but extension was possible to beyond 15 degrees. Straight leg raised bilaterally was to 45 degrees.
198The diagnosis was aggravation of lumbar spondylosis and, particularly, the pain is more likely facetogenic in nature. The nature of the plaintiff’s work as a labourer, and particularly the incident, is a considerable contributing factor to his current condition.
199The plaintiff’s prognosis is guarded.
200The plaintiff described very poor sleep and found driving difficult, especially for long distances.
201Employment is a significant contributing factor to the plaintiff’s lumbar injury.
202The plaintiff’s symptoms are organic in nature, based on the examination and radiological findings.
203The plaintiff does not have the capacity to return for pre-injury employment. Discussion of the jobs suggested by Recovre in May 2024 was appropriate for an occupational physician.
Monash Health
204The plaintiff was reviewed at Monash Heart Early Intervention Systolic Heart Failure Clinic on 20 May 2024.
205Having had a number of investigations carried out, the working diagnosis was heart failure with reduced ejection fraction of unclear aetiology. The plan involved the optimisation of the plaintiff’s cardiac medications which included adjusting the dosages of certain medications and initiating additional pharmacological treatments. The plan also included a referral to the Genetics Clinic, an outpatient Holter monitor and follow-up review within a year with a repeat TTE.
Investigations
206The plaintiff had a lumbar CT scan on 28 January 2023, following which it was reported there was multilevel degenerative changes in the lumbar spine. Further evaluation with an MRI scan was suggested.
207Following a lumbar MRI scan on 24 February 2023, it was reported there was possible nominal compression of the L5 nerve roots due to a disc osteophyte complex at the L4-5 level.
208The plaintiff had CT-guided injections to the right L5 nerve root on 17 April and 18 July 2023 on referral from Mr Timms.
209The plaintiff had a lumbar spine MRI scan on 1 August 2024, following which it was reported there were minimal disc bulges only, noted as described without evidence of mechanical neural compromise or significant facet sacroiliac joint arthropathy. There was no discal cord or cauda equina compression.
Plaintiff’s medico-legal evidence
Dr Eman Awad, occupational health specialist
210Dr Awad examined the plaintiff in November 2024.
211The plaintiff then reported back pain varying in intensity. He had good and bad days with a predisposition to bad. He indicated his pain scores were 5 to 8/10 but increased to 9/10 when he has an aggravation. He has stiffness in his back which impacts his sleep, being unable to sleep at all some nights, and he is tired all the time. His left leg pain has now settled but he has intermittent right leg pain.
212The plaintiff described the following tolerances: sitting for thirty to sixty minutes; standing for twenty to sixty minutes; walking without aid for two hours. He could drive for fifteen to thirty minutes. I took him an hour to drive to that appointment and he had to stop halfway.
213On bad days, the plaintiff could not cut his toenails. He did housework in a paced piecemeal manner and found it difficult when he had flare-ups and only cleaned on good days. He was able to shop on a good day but only carried light bags.
214The plaintiff told Dr Awad that on several occasions he has had to walk out of a supermarket, leaving his trolley behind, because his symptoms were too high. He does not garden.
215The diagnosis was aggravation of lumbar spondylosis and adjustment disorder with depressed and anxious mood.
216The plaintiff has no capacity for pre-injury duties and there are no workplace adjustments that would facilitate a return to work. He should be permanently medically restricted from undertaking any roles that require him to push, pull, lift, carry above 10 kilograms, prolonged stand, walk, repetitively bend, climb, kneel, work at heights and exposure to whole body vibration for the foreseeable future. This is a permanent partial incapacity.
217When taken into consideration, the plaintiff’s age, the nature of his injuries, the sequela thereof his injuries, his fatigue, his previous occupational history, his level of qualifications, and the length of time out of work, he retains a residual partial capacity for a sedentary role of fifteen hours a week.
218The plaintiff would require retraining. Being assisted to retrain as a traffic controller and a disability support worker were poorly informed choices. Neither being suitable given his underlying diagnosis and evident by his inability to maintain work as a DSW. The nature of his underlying condition is such that he is likely to experience repeated episodes of sickness absence secondary to back flare-ups affecting his ability to work in a reliable manner.
219The jobs identified by Recovre in May 2024 are ones for which the plaintiff has no capacity save for salesperson if desk-based, was possible for fifteen hours a week but not on a shop floor.
Dr Philip Haynes, consultant occupational physician
220Dr Haynes examined the plaintiff on behalf of the defendant on 22 January 2025.
221The plaintiff then reported ongoing pain in the low lumbar region around the midline, radiating to the right sacroiliac area. He stated back pain became worse with any prolonged sitting or standing. Bending or heavier lifting caused pain. He was aware of pain at night and reported sleeping on alternate nights only.
222On examination, lower back movement was restricted – flexion 50 degrees; extension 10 degrees; lateral flexion bilateral and rotation bilateral 20 degrees; straight leg raising was normal.
223From the history provided by the plaintiff, the degenerative change at L4-5 has been symptomatically aggravated by work.
224The plaintiff was currently fit for a role where he could sit or stand as required and avoid any bending to reach below knee height, and any lifting of more than 5 kilograms between knee and shoulder height. He could lift once every ten minutes.
225The plaintiff could work in a suitable job role for four hours, five days a week initially, upgrading to eight hours, five days a week, over six to eight weeks.
226The plaintiff was fit to perform light process or assembly duties with these restrictions. He was fit to perform a variety of office-based work duties or work in a call centre. He was fit to perform static security monitoring duties. He would be fit to perform these roles because the duties should not require repeated bending or lifting more than 5 kilograms, and could be performed seated or standing.
227The plaintiff could work in factories or other locations providing the above employment.
228In his supplementary report, he advised parking inspector and process worker roles would not be considered suitable jobs for the plaintiff.
Vocational evidence
Ms Katrine Green, psychologist
229Ms Green prepared a vocational report in January 2025.
230She interviewed the plaintiff, who reported the following physical tolerances:
“Sitting: 1 Hour to 1.5 Hours – Cannot return to sitting for a few hours & when returning to sitting no more than 30 Minutes – Sitting very painful
Standing: 30 Minutes to 1 Hour – Static; Movement – A Few Minutes - Avoids
Walking: 1.5 Hours – Pretty Good; Can have mechanical failure causing falling whilst walking; due to emotional improvement due to walking tries to go walking daily
Bending: On a good day can pick-up but struggles, has a pick-up stick
Kneeling: Can kneel
Squatting: One or two squats
Lifting: 10kg; lifts items i.e. shopping bag, office chair, slab of water
Driving: 30 Minutes to 1 Hour.”
231Having regard to the full scope of the medical opinions provided, the analysis of the suggested occupations and the physical demands of the core duties, she thought that due to the plaintiff’s lumbar spine injury only, and ignoring his psychological injury, he was unable to perform the inherent duties of his previous occupation or the inherent duties of any suitable employment on a permanent, reliable, consistent and sustained basis without the risk and/or aggravation of his lumbar spine within the foreseeable future.
Mary Oliver, Flexi Personnel
232Ms Oliver provided gross wage rates per hour for the following jobs – Parking Inspector $24.87, Traffic Controller $26.40, Process Worker $24.10, Disability Support Worker $28.02, Self Employed Disability Support Worker (no wage rate provided), Checkout Staff Member $25.65, Customer Service Officer $25.65, Customer Service Supervisor $27.17, Door Greeter $25.65, Meter Reader $24.50, Trainer and Assessor $30.55, Sales Person - Office-based $25.65, Warehouse Manager/Operator $27.32 and Occupational Health and Safety Advisor $31.36.
Defendant’s medico-legal evidence
Mr Kevin Siu, neurosurgeon
233Mr Siu first examined the plaintiff in April 2024.
234The plaintiff’s main concern then was an apprehension of a sudden attack of back spasm. He was concerned that if he had an attack of back spasm when driving, he may not be able to control the car.
235The plaintiff told him he had an acute episode of back pain in April 2023 and was unable to move. His GP told him he had most likely irritated nerve roots and organised a further MRI scan which again showed bulges.
236On examination, the plaintiff’s gait was quite normal. Forward flexion was to just below the knees, as was lateral flexion, and he could rotate and extend. When sitting on the examination couch, right knee jerk was sluggish but present and there was no sensory impairment. He could not convince himself there was any neurological deficit in the lower limbs.
237The plaintiff certainly had symptoms of back pain, but no abnormal neurology and no convincing evidence on imaging. He could not readily explain why the plaintiff should have so much pain and discomfort.
238The plaintiff had completed the disability course but was fearful of a sudden onset of back spasm and pain.
239He was not sure if the plaintiff was about to attend pain management, but he certainly should have a multi-disciplinary pain management course. It was unfortunate; however, the plaintiff had had so many interventional procedures. They had not been consistently helpful in relieving his symptoms.
240The plaintiff denied any past problems with his back.
241The diagnosis was soft tissue injury to the lumbar spine without radiculopathy.
242The imaging does not give a picture of significant degenerative changes and he cannot be convinced there is good evidence radiographically of nerve root compression.
243He would agree the overall presentation was difficult to corelate with the objective signs; however, the plaintiff did not come across as being overtly functional in his manifestation.
244The plaintiff certainly cannot return to work as a plumber.[71] His return to gainful employment needed to be reassessed after pain management.
[71]The plaintiff has no qualifications as a plumber. He worked as a concreter/labourer pre incident.
245The physical restrictions as far as return to gainful employment was that the plaintiff should avoid repetitive bending, lifting 5 to 10-kilogram restrictions, and have the ability to have a break during his working conditions.
246It was then difficult to predict the outcome given the hope the pain management course would achieve some resolution.
247There was a re-examination in January 2025.
248Mr Siu was provided with the plaintiff’s clinical records for the period 2 May 2009 to 15 April 2024. He was asked to specifically enquire of the plaintiff as to why there was a gap in treatment and complaints between April 2021 and December 2022.
249The plaintiff told him he was working as a traffic controller and did not see his GP over that period because he was in severe pain, so much that he could not drive himself to see the GP. Mr Siu thought that was hard to explain. On the one hand, the plaintiff had complained of severe symptoms to the extent he could not drive to see a GP, and on the other, he was able to work as a road traffic controller. He was not sure what the plaintiff was trying to hide.
250In April 2023, the plaintiff certainly had an acute flare up and the plaintiff had told him there had been flare ups since every couple of weeks, with the pain lasting from an hour to several hours.
251The plaintiff had not worked since then and he suggested the reason was he was fearful of being suddenly afflicted by a spasm.
252The plaintiff had undergone pain management and also radiofrequency denervation since last seen. He found that helpful but advised his symptoms had recurred and he put it down to the denervation had worn off.
253The plaintiff was attending a gym that was self funded, and he would have thought the best thing for the plaintiff was to be given a gym membership so he could regularly attend.
254On examination, the plaintiff could forward flex to below the knee, as well as lateral flexion and rotation was good.
255The neurological examination of the lower limbs was again normal and he could not explain the plaintiff’s symptoms.
256The diagnosis was persistent back pain following straining at work. He had difficulty in explaining why the plaintiff had persistent symptoms, although there was a gap where he could work as a disability support worker. The diagnosis is nonspecific back pain following the incident of persistent symptoms which he could not readily explain.
Dr Reza Sabetghadam, occupational physician
257Dr Sabetghadam examined the plaintiff on 20 May 2024.
258The plaintiff then reported experiencing right hip and lower back pain, the level of which was 4-5/10. He denied any pins and needles or numbness in his legs.
259The plaintiff reported he found it challenging to walk during flare ups and adopted a position of bending forward, dropping his head between his legs in a foetal position on the floor to alleviate his back pain. He occasionally remained in that position for up to an hour to relieve his symptoms.
260The plaintiff reported his sleep was disturbed and he occasionally does not sleep for forty-eight hours.
261The plaintiff reported experiencing back pain at a younger age, but never underwent investigations for it.
262The plaintiff reported waking with severe lower back pain radiating to the right leg on 14 January 2023 when he could not move. Subsequently his employment was terminated.
263On examination, range of motion of the lower back and right hip was unremarkable. Seated and supine straight leg raising appeared to be unremarkable and symmetrical. The plaintiff complained of mild tenderness in his lower back and right hip on palpation.
264The plaintiff required the following restrictions and limitations – no working in confined spaces or elevated platforms, no climbing ladders, no work on construction sites, no operating machinery or sharp tools and no driving activity.
265Considering the plaintiff’s poor tolerance and believable? symptoms, he recommended reasonable modification, such as:
(a) modification and minimisation of lifting and carrying heavy loads; the weight of load to be determined by his tolerance and could be different on a day-to-day basis, depending on how he feels and his level activity;
(b) modification and minimisation of pushing and pulling heavy loads; the weight of load to be determined by his tolerance and could be different on a day-to-day basis;
(c) modification and minimisation of frequent bending and working in awkward postures;
(d) modification and minimisation of prolonged sitting, standing and walking; the length of period to be determined by his tolerance.
266Based on the provided history, his examination and the AMA Guides, to the evaluation of workability and the return to work, the plaintiff cannot operate machinery, as he developed a sudden loss of consciousness, and thus no type of physical work could be recommended; however, the plaintiff could work as a disability care worker, adhering to provided modifications.
267A range of suitable particular jobs at particular workplaces and particular employers who provided that employment was provided including: Infringement notice officer, Traffic controller, Self-checkout staff member, Customer service officer or supervisor, Door greeter, Meter reader, Disability care worker, Light process worker on a production/assembly line, Trainer and assessor, Traffic warden, Parking inspector, Salesperson and Warehouser manager/warehouse operator.
268The plaintiff did not require any significant retraining, although he would be likely to benefit from an induction program. The plaintiff already held a Certificate III in disability care.
269The plaintiff’s comorbidities, including his heart condition and the recent sudden loss of consciousness, may significantly impact his ability to return to meaningful employment until his condition is stabilised, irrespective of the work injury.
270The second episode of nonspecific lower back pain with non verifiable radicular type pain with radiating pain to the right leg, which occurred at home (January 2023) and affected the right leg, was a distinct condition irrelevant to the incident which affected his leg.
Dr Saji Damodaran, clinical psychiatrist
271Dr Damodaran examined the plaintiff in December 2024.
272His report was not referred to during the hearing.
273Based on the information and examination, he thought the plaintiff was suffering from Adjustment Disorder with Mixed Anxiety and Depressed Mood, along with a Pain Disorder associated with the general medical condition.
274He considered the major barrier affecting the plaintiff’s recovery was the pain and limitations and associated demoralisation.
Vocational evidence
Recovre suitable employment report dated 30 May 2024
275Larissa Griffiths and Janette Ash completed this report, having been provided with various reports. They did not interview the plaintiff.
276The relevant vocational options were those suggested by Dr Sabetghadam; however, Recovre had not completed a vocational assessment with the plaintiff, so could not offer any opinion as to the vocational suitability of these occupations.
277They suggested suitable employment for the plaintiff was parking inspector, involving driving, patrol and issuing infringement (average weekly earnings for a worker aged 34-35 – $1,373) and process worker at Dandenong South, involving monitoring a line and loading box blanks, and cleaning tasks and palletising – $33.23 per hour.
Overview
278It is not in issue that the plaintiff suffered an injury to his lumbar spine in the incident on the said date.
279The preponderance of medical opinion is that his lumbar condition is organically based, with a diagnosis of an aggravation of underlying lumbar spondylosis.
280Mr Siu’s diagnosis of a soft tissue injury is against the weight of the medical evidence, specifically Mr Timms, the GP, Dr Akil, Dr Awad and Dr Haynes.[72]
[72]T69
281There is no suggestion by any medical examiner – including Mr Siu, who was unsure as to the cause of the plaintiff’s symptoms – that the plaintiff’s presentation is functional – the plaintiff having a history of significant treatment including injections and blocks, and heavy medication for spinal pain.[73]
[73]T69
282It is not in dispute that the incident injury continues to materially contribute to the plaintiff’s current spinal condition.
283While there was cross-examination about some back issues the plaintiff reported to his GP pre incident, there was no evidence that the plaintiff’s back was a problem before the said date, and he was able to work full time during that time without any restriction.[74]
[74]T62
Credit
284As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[75]
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[75]Supra at paragraph [12]
285Further, I am mindful of what was said by Chernov JA in Dordev v Cowan & Ors,[76] that in this type of case, a plaintiff’s credibility is relevant not only to whether his evidence should be accepted, but it is also relevant to the reliability of the medical evidence, because the opinions of the doctors are essentially dependent on the credibility and reliability of the history given to them by the plaintiff.
[76][2006] VSCA 254 at paragraph [14]
286Accordingly, in this case, what appear on their face to be medico-legal opinions supportive of the plaintiff’s application, they must be looked at in the light of my views as to his credit.
Surveillance film
287The plaintiff was under surveillance for 45 hours, with the total footage obtained of 81 minutes and 49 seconds.
288Over three days in August 2024 (mainly 12 August), there was 46 minutes and 27 seconds of film; over three days in November 2024, 4 minutes and 26 seconds and over three days in January/February 2025, 30 minutes and 56 seconds of film.
Credit submissions
Defendant
289The defendant put great store on the August 2024 film, arguing it clearly demonstrated a capacity and a functional capacity to do extremely arduous and heavy work, and lots of lifting over a sustained period without any sign of restriction. It is not a film of someone pushing a trolley in a supermarket. It is a clearly demonstrable period of activity in August 2024. The fact remains the plaintiff was lifting significant amounts of weights having said he could not do so.[77]
[77]T61
290The August 2024 film of about four hours, showed the plaintiff moving house with his trailer and truck. While he explained he could do this activity having medicated himself and having had some relief from the denervation procedure in June 2024, he was also able to engage in heavy lifting in January and February 2025, when filmed lifting a washing machine and other things.[78]
[78]T50
291The film was to be contrasted with what the plaintiff told doctors he was able to do around that time with GP, Dr Nasralla, on 2 October 2024, saying the plaintiff had no ability to do heavy lifting, and later that month, neurosurgeon, Dr Akil, reported the plaintiff had stopped all activities.[79]
[79]T54
292It was also submitted the film undermined the opinions of Dr Awad (November 2024) and Ms Green (January 2025), who had accepted what the plaintiff had reported about a range of significant restrictions.[80]
[80]T55
293The plaintiff made no mention of any increased back pain to his GP when seen on 12 August 2024, the day he was filmed moving house.[81]
[81]T62
294In the more recent films in early 2025, the plaintiff was again lifting heavy items which was something one could not do it with a genuinely injured back – it was “just impossible”.[82]
[82]T61
295Another credit issue was said to an understatement by the plaintiff of his pre-incident back condition compared to his GP’s clinical notes during that time.
Plaintiff
296All the evidence must be considered, not just the film. The film was not of any great moment in relation to credit, the plaintiff not having presented to doctors with a walking stick, incapable of doing anything.[83]
[83]T68
297It was not a situation where the plaintiff had been filmed doing something he said he could not do –“so it comes down to capacity”.
298There is an enormous body of evidence supportive of the plaintiff. Firstly, there is an organic injury, with Mr Siu somewhat of an outlier.[84] There is no suggestion the plaintiff’s presentation is functional. All medical practitioners agree he cannot return to his pre=injury employment. That level of capacity was not in conflict with the film.[85]
[84]T69
[85]T69
299The film had not been shown to any doctor, so it was left to be assessed by the Court, together with the plaintiff’s explanation of some improvement after the denervation.[86]
[86]T68
300The defendant having made a forensic decision not to show the film to any of their doctors for comment, it will be difficult to somehow use that film to displace the medical evidence in circumstances where it really is not a credit fight. The plaintiff’s credit is generally intact. It is a question of whether the film means the plaintiff has a capacity to work more than fifteen hours per week doing what Dr Awad suggested. He does not.[87]
[87]T70
301There is no flavour in the medical evidence that the plaintiff has attempted to mislead or embellish his presentation.[88] The relatively normal examination with Dr Reza was relied on in this regard.[89]
[88]T71
[89]T70
Findings
302The plaintiff was shown lifting heavy items including a washing machine, mattress and base and a number of other household items and putting them in his trailer to move house on 12 August 2024. He was filmed engaged in this activity continuously for about two hours.[90]
[90]T61
303Further, there was film of very limited heavy lifting in January and February this year.
304When assessing the plaintiff’s credit in light of video footage, the Court must take into account any explanation the plaintiff gives regarding his behaviour in the footage. This might include explanations for why he was able to perform certain actions or references to variations in the level of pain suffered.[91]
[91]Woolworths Limited v Warfe [2013] VSCA 22 at paragraph [110]
305The plaintiff did not suggest there was any sign of any restriction or difficulty doing the lifting tasks. He explained he had to move his possessions because he had no choice – he had no one else to help him. He was able to carry and lift the various items having taken his full day’s painkilling medication in the morning and he suffered afterwards.[92]
[92]T30
306This was not really a case where the plaintiff had been caught out. He has never claimed to be a cripple. His presentation on examination has varied with an almost normal examination with Dr Reva and limitations with flexion and extension when examined by Mr Siu. The plaintiff has not presented as significantly disabled when examined, with no examiner considering him to be functional or exaggerating.
307Generally, I found the plaintiff to be a truthful witness. He had tried to get on with his life post injury, undertaking the traffic controller course and working in that field for a year until the work dried up. He then did further retraining and worked in disability but I accept, as his GP’s notes confirm, in early 2023, his back pain increased with the driving involved in that job and he was unable to continue in that role, and has undergone significant treatment since.
308I accept his explanation that when moving house, he had no one to help him and he had to load and unload his trailer himself. The other occasion when he was filmed earlier this year was a one-off lift of a washing machine, using straps.
309The level of activity shown on the film is, however, relevant when considering the plaintiff’s future work capacity and whether he can establish a loss of earning capacity of 40 per cent for the foreseeable future.
310For the reasons discussed below, in my view, the film does not show the plaintiff has a capacity to work on a regular, sustained, reliable basis.
311Despite the importance of credibility, the Court must not disregard reliable medical evidence merely due to concerns about the plaintiff’s credibility.[93]
[93]Cakir v Arnott’s Biscuits Pty Ltd [2007] VSCA 104
312Further, the defendant has not shown the surveillance footage to Dr Haynes, the medio-legal examiner who recently saw the plaintiff on its behalf, to invite him to comment on whether the activity displayed is consistent or inconsistent with the plaintiff’s asserted injuries.[94]
[94]Church v Echuca Regional Health (2008) 20 VR 566 at paragraph [100]
313Finally, I do not accept the plaintiff understated any pre-incident back issues so I have no concerns with his credit in this regard.[95]
[95]T62
Pain
314In Haden Engineering v McKinnon,[96] President Maxwell said the evidentiary basis of the pain assessment would ordinarily comprise, inter alia, what the plaintiff says about the pain (both in court and to doctors).
[96] Supra at paragraph [11]
315Counsel for the defendant conceded that no one had really challenged the plaintiff in regard to the continuation of his pain at the levels he described. While Mr Siu could not explain the level of complaint by the clinical findings, he acknowledged the plaintiff certainly had symptoms of back pain and discomfort.[97]
[97]T48
316I accept the plaintiff’s evidence that he has not been free of back pain since the incident – low back pain has been constant but of varying degrees, sometimes severe with flare ups – the pain radiating to his right leg/thigh at various times.
317Significantly, in March 2024, as Associate Professor Sahathevan advised, the plaintiff probably had a syncopal event in a setting of significant back pain, referring him for further investigations and suggested driving restrictions may be necessary.
318While there was a gap in complaints of back pain to the GP from April 2021 to December 2022, although there were over thirty visits for unrelated issues, I accept that during that time, the plaintiff did his best to get on with his life. He was managing and taking tablets, so he did not complain to the doctor of back pain. In these circumstances, his explanation to Mr Sui for the gap in treatment was difficult to understand.[98]
[98]T51
319Further, while doing the traffic control work, the plaintiff’s back was a bit sore, but it was mostly manageable, and then he went on to disability work.[99] His condition worsened in early 2023, causing him to cease that job and undergo significant treatment from that time. His incident-related symptoms and restrictions continue.
[99]T67
320There was no “new” injury after the treatment “gap”. There is no doctor who is suggesting there is a separate later injury. The plaintiff’s GP noted, on 30 December 2022, that the plaintiff had “back pain on and off”. The plaintiff’s physiotherapist at Physio On, who saw him in December 2022, was actually asked if there was a new injury and said he did not think so.[100]
[100]T68
321The flavour of the medical evidence is that the incident, not any new injury, continues to contribute to the plaintiff’s spinal condition.[101]
[101]T68
322In Stijepic v One Force Group Aust Pty Ltd,[102] Ashley JA and Beach AJA discussed the circumstances of a young plaintiff who faced, in the foreseeable future, a continuation of painful symptoms and of consequential inhibitions upon his enjoyment of life.
[102] [2009] VSCA 181 at paragraph [43]
323The Court held, when judging the pain and suffering consequences for the appellant, by comparison with other cases, they considered it relevant to look at the likely period for which those consequences would be experienced. It was noted, all things being equal, impairment consequences which a man or woman would have to put up with for forty years might well be judged more serious than the same consequences which a man or woman may have to put up with for a much shorter period of time.
Treatment
324The plaintiff has undergone a wide range of non-operative measures – the most substantial during 2023/2024. Before that time, he had physiotherapy treatment and was prescribed painkilling medication.
325On 17 April 2023, he underwent a right L5 nerve root injection.
326There was a specialist referral to Mr Timms, neurosurgeon, in June 2023, who arranged a CT-guided L4.5 epidural steroid injection carried out in July 2023.
327The plaintiff was referred to Dr Weekes in November 2023 for pain management through Precision Ascend.
328On 17 January 2024, the plaintiff underwent a bilateral L5 branch block plus a sacroiliac joint block.
329The plaintiff was referred to neurologist, Associate Professor Sahathevan, after the March 2024 episode.
330On 5 June 2024, the plaintiff underwent bilateral L5-S3 radiofrequency denervation.
331In October 2024, Dr Weekes referred the plaintiff to Dr Akil, neurosurgeon.
332When last seen by Dr Weekes in November 2024, the plaintiff decided not to proceed with the trial of peripheral field neuromodulation.
333He continues to undergo pain management and is under the care of his GP, who continues to certify him unfit for work on the basis of his back condition.
Medication
334The plaintiff currently has a heavy painkilling medication regime.
335As he was not getting enough pain relief from Panadeine Forte, his medication was changed to Palexia, 50 milligrams, which he takes nightly, together with Pregabalin, 25 milligrams. At night, he also takes two Norgesic tablets and amitriptyline. He also takes four Panadol Osteo tablets during the day.
336As Dodds- Streeton JA said in Kelso v Tatiara Meat Company Pty Ltd:[103]
“The chronic pain was a prominent feature of the appellant’s case. The endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence.”
[103](2007) 17 VR 592 at paragraph [199]
Other activities
337As a result of his back pain, the plaintiff has difficulty going to sleep and is often woken during the night with pain. On a pretty regular basis, he does not sleep at all for two nights when he has not taken a lot of medication. Due to his lack of sleep, he is tired and lethargic the next day.
338He is restricted in his ability to undertake domestic and household tasks.
339He has difficulty with prolonged sitting. He can drive for about 20 minutes before experiencing back pain. His ability to enjoy his pre-injury activity of gaming is significantly limited.
Work
340Counsel for the defendant conceded that if it was accepted as a result of his back injury the plaintiff was unable to engage in unrestricted physical work, he was entitled to be granted leave to bring proceedings for pain and suffering.[104]
[104]T66, Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326
341Submissions made by counsel for the defendant focussed largely on the loss of earning capacity application.
342I am satisfied, as a result of his back pain and restrictions, which were largely unchallenged,[105] the plaintiff, still a young man who has relied on his physical fitness to work, can no longer engage in unrestricted manual employment. The preponderance of medical opinion is to this effect.
[105]T48
343The plaintiff has undergone extensive treatment without significant improvement. He continues to rely on heavy painkilling medication, including Palexia. His daily activities including driving are restricted. Sleep difficulties continue.
344Taking into account all the evidence, I am satisfied the pain and suffering consequences of the plaintiff’s spinal impairment are “serious”.
345There having been no sustained improvement over the last five years or so since the incident, despite a number of procedures, I am satisfied that the plaintiff’s spinal pain will continue into the foreseeable future.
346Accordingly, I grant leave to bring proceedings for damages for pain and suffering.
Loss of earning capacity
347Having satisfied the narrative requirements to obtain leave in relation to loss of earning capacity, the plaintiff must also establish that –
(a) at the date of the hearing, he has a loss of earning capacity of 40 per cent or more – s325(2)(e)(i); and also
(b) after the date of hearing, the relevant loss of earning capacity will continue permanently – s325(2)(e)(ii).
348The measurement of loss of earning capacity is set out in paragraph (f) which requires a comparison between:
(i) “without injury” earnings; and
(ii) “after injury” earnings.
349The former must be calculated by reference to the six-year period specified in s325(2)(f).
350“Without injury” earnings consist of the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion had the injury not occurred.
351It is to be calculated by reference to that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity.
352The plaintiff carries the onus of proof in relation to economic loss and particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and (g) therein.
353The parties agreed the plaintiff would suffer the requisite 40 per cent loss if he was unable to earn in excess of $612.95 per week. This figure was based on his earnings of $53,123 for the 2019 financial year – his highest annual earnings.[106]
[106]T57
354There is a range of medical opinion as to the plaintiff’s work capacity from a capacity for full-time work on restricted duties to total incapacity for any work.
355Mr Siu and Dr Sabetghadam considered the plaintiff has a capacity for full-time work with restrictions. Dr Haynes shared their view but thought a return to work should be on a graduated basis; however, he thought the jobs suggested by Recovre of process worker and parking inspector were unsuitable for the plaintiff.
356Dr Awad considered the plaintiff retained a residual partial capacity for a sedentary role of fifteen hours per week. Dr Weekes thought the plaintiff had no realistic capacity for sustained, reliable work. The plaintiff’s GP continues to certify him unfit for all work.
Defendant
357The defendant’s case was the film certainly demonstrated a capacity to do some heavy work, lifting and the like, and by comparison the plaintiff has a Certificate III in disability support work. He had done that work for five months or more.[107] In that role he would be paid $28.02 per hour.[108] He could do light work in that role for at least twenty-two hours a week – thus exceeding the $612 per week threshold.[109]
[107]T64
[108]Flexi Report
[109]T61
358In June 2023, treating surgeon, Mr Timms, thought if the plaintiff could regularly undertake walking and was able to get his core muscles fitter, stronger and flexible, he should hopefully be able to return to his disability support work.[110]
[110]T56
359Physiotherapist, Matthew Venn, thought, based on his last assessment in August 2024, the plaintiff had a capacity for work. He should restrict activities involving repetitive bending, lifting greater than 5 kilograms, prolonged sitting and standing for greater than one hour.[111]
[111]T56
360Mr Siu thought the plaintiff had a capacity for a range of vocations.[112]
[112]T51
361The plaintiff’s cousin’s affidavit describing the disabilities the plaintiff had with light work were defeated by the film.[113] Further, the film showed the plaintiff helping his nephew going shopping in Wonthaggi – an activity similar to his disability support worker role.[114]
[113]T56
[114]T58
362Dr Haynes thought there was some capacity. He imposed a 5-kilogram lifting limit, but thought the plaintiff was fit to perform light process work on a graduated basis, although he did not think the jobs of process worker and parking inspector were appropriate, given his difficulties with his disability support role.[115]
[115]T57
Plaintiff
363The plaintiff left school at Year 10, and all medical practitioners agree he cannot return to his pre-injury employment.[116]
[116]T69
364The flavour in the medical reports is of a poorly educated manual worker who has attempted to go back to work, but has not been able to cope with it; his treating doctors say he cannot do it.[117]
[117]T71
365Dr Awad thought disability work and traffic control were poor choices and that the plaintiff may be able to do fifteen hours of light work per week, after retraining.[118]
[118]T69
366Further, Dr Haynes rejected the two light jobs suggested by Recovre.[119]
[119]T69
Findings
367Given the plaintiff’s inability to continue with even light work as a disability worker because of his difficulty with the driving involved,[120] I accept that he has a very limited work capacity.
[120]GP’s note dated 24 January 2023
368The plaintiff has shown motivation to retrain in two jobs, initially in traffic control and later, disability support. He could not continue in the latter role despite what one would expect to be a supportive environment, working for his cousin in a well-paid job. His cousin was not cross-examined.
369I am satisfied, due to his ongoing lumbar pain and at times severe flare ups, he has a very limited capacity even for the lightest of work – at best fifteen hours per week – as Dr Awad, occupational physician explained. The nature of his underlying condition is such that he is likely to experience repeated episodes of sickness absence secondary to flare ups affecting his ability to attend work on a reliable basis.
370Even if he was able to work fifteen hours per week in a disability role – (15 x $28.02 = $420.30), the plaintiff would still suffer the requisite loss for his application to succeed. I do not accept he has the capacity to work more than twenty-two hours per week on a reliable consistent basis.
371While he was shown engaging in heavy lifting over a couple of hours on the August 2024 film, it was an activity of necessity. He was moving house alone, without help, because he had no choice. The early 2015 film was of a similar nature.
372The film does not demonstrate an ability to work on a regular reliable basis in any job, particularly when the plaintiff has constant pain and suffers very bad flare ups when his back seizes up and he is literally on the floor. His most recent work experience has been in the lightest of jobs and he could not cope. He continues to require ongoing significant painkilling medication. The March 2024 episode was an extreme example of what may occur in a setting of significant back pain, causing neurologist, Dr Sahathevan, to suggest driving restrictions may be necessary.
373Taking into account all the evidence, I am satisfied the plaintiff does not have the capacity to earn in excess of $612 per week and has therefore established a loss of earning capacity of 40 per cent. In my view, this situation is likely to continue for the foreseeable future.
374Accordingly, I also grant leave to the plaintiff to bring proceedings for damages for loss of earning capacity.
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