Haidar v Victorian WorkCover Authority
[2023] VCC 2285
•11 December 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-22-04409
| ALI HAIDAR | Plaintiff |
| V | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 October 2023 | |
DATE OF JUDGMENT: | 11 December 2023 | |
CASE MAY BE CITED AS: | Haidar v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2285 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – impairment to the spine – pain and suffering only – range case – organic impairment
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; Peak Engineering & Anor v McKenzie [2014] VSCA 67; Meadows v LichmorePty Ltd [2013] VSCA 201; Humphries v Poljak [1992] 2 VR 129; Sutton v Laminex Group Pty Ltd (2011) 31 VR 100; Dordev v Cowan & Ors [2006] VSCA 254
Judgment: Application dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr B Johnson | Maurice Blackburn |
| For the Defendant | Mr M Clarke | TG Legal + Technology |
HER HONOUR:
1This is an application for leave to bring proceedings for damages pursuant to s335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) for injury suffered by the plaintiff in the course of his employment with Ventura Transit Pty Ltd (“the employer”) on 1 February 2017 (“the said date”).
2The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.
3The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s325(1) of the Act. There, “serious injury” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4The body function relied upon in this application is the spine.[1]
[1]Transcript “T” 2; The Particulars of Injury also included the left upper limb and psychiatric impairment
5Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.
6The impairment of the body function must be permanent.
7The plaintiff bears an overall burden of proof upon the balance of probabilities.
8By s325(1)(c) 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, may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant or marked”.
9Section 325(2)(h) requires all psychological consequences to be ignored in determining the plaintiff’s application in relation to the physical impairment.
10I 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.
11I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[2] and Meadows v Lichmore[3] in reaching my conclusions.
[2] (2005) 14 VR 622
[3] [2013] VSCA 201
12The plaintiff relied upon two affidavits and was cross-examined. He also relied on an affidavit sworn by his ex-wife, Abir Haidar, on 28 September 2023. Also in evidence were medical reports and other material. I have read all the tendered material.
13From the defendant’s perspective, there were two significant issues: first whether there was an organic injury referable to the incident – a view not shared by Dr Barton and Dr Menz. The “fallback position” was that any organic impairment was not serious.[4]
[4]T6
Plaintiff’s evidence
14The plaintiff is presently aged fifty-one, having been born in May 1972 in Kuwait. He is right handed. He completed Year 11 in 1991. He then went to Lebanon, where he worked for about eight years as a lifeguard.
15He came to Australia in approximately January 2000 on a spousal visa. He did an English language course and commenced work in around 2007 at Swift Deliveries as a driver full time. He started work with the employer in December 2015 as a fleet support team leader.
16Prior to the said date he had was in good health, although briefly, he had had some back problems which had resolved.
17In about May 2008, he attended Dandenong Hospital due to lower back pain after lifting shopping, but recovered after a brief period and was able to return to normal duties.
18In around June 2015 and November 2016, he was prescribed Endone for lower back pain which periodically flared up, but settled down, and did not restrict his ability to perform his work or enjoy his activities of daily living.
The incident
19On or about the said date, the plaintiff tripped on a hose while re-fuelling a bus and fell to the ground (“the incident”). He felt immediate pain in his bottom, spine and left leg, which hit a piece of metal on the hose.
20In his Claim Form dated 6 February 2017, he described tripping over the diesel hose while re-fuelling the bus and suffering lower back pain.
21He received payments for three months.[5] Weekly payments and medical and like expenses were terminated on 31 July 2017.[6]
[5]T10
[6] There was a settlement of statutory entitlements in May 2018. Funding was approved for the ketamine
infusion in 2017; T46; There was no record of funding for pain management being sought
22The day after the incident, he attended Dandenong Hospital Emergency, where he was told to follow up with his general practitioner (“GP”). The following day, he again attended Emergency.
23On about 9 February 2017, he saw his GP, Dr Mirranay, at Brentwood Park Family Practice. He also saw Ms Amy Leung, physiotherapist, commencing treatment on or about 28 February, on referral from Dr Mirranay.
24On or about 5 March 2017, the plaintiff had an x-ray and ultrasound of his left shoulder. He was told those investigations showed a lesion in the anteroinferior glenoid, which suggested a recent dislocation and an MRI scan was recommended if the dislocation suggested was suspected. He subsequently saw Dr Mirranay who referred him to Melbourne Orthotics for a neck support collar.[7]
[7] Letter dated 17 March 2017
25On about 20 March 2017, he had a full spinal MRI scan and was told the results thereof.
26He was referred by Dr Mirranay to Melbourne Pain Group where he was assessed by Dr Lee on or about 21 April 2017. He recommended the plaintiff continue with medication, including Targin, Endep and Lyrica. He considered a ketamine infusion for the plaintiff’s pain, however, the plaintiff was not keen to proceed with it.
27The plaintiff saw Dr Lee again in early June. Dr Lee had planned a ketamine infusion on 2 August, but the plaintiff wanted a second opinion.
28WorkCover declined funding for the ketamine infusion. The plaintiff denied the infusion was scheduled to take place and he did not turn up.[8] He did not leave a message that he was going to pursue surgery as Dr Lee recorded. All he could remember was WorkCover declined any treatment for him – “they stopped my payment and stopped the treatment.”[9]
[8]T9
[9]T10
29On about 13 July 2017, the plaintiff was taken by ambulance to Dandenong Hospital after experiencing back pain and breathing problems. He was subsequently monitored and given pain relief before being discharged.
30He saw Professor Bittar, neurosurgeon, on 19 July 2017 on referral from Dr Mirranay. Spinal surgery was not recommended but the plaintiff was referred to Dr Weekes, pain physician, whom he saw in August 2017. Part of Dr Weekes’ recommendation was a referral to a psychiatrist, Dr Katherine McQuillan.[10]
[10] T11
31The plaintiff agreed that when he saw Professor Bittar and Dr Weekes in 2017, he was using a walking stick and wearing a hard cervical collar and a lumbar brace. Dr Mirranay had told him to use them for his pain. On examination that year, he would be walking very slowly with the stick, and his neck would have been very stiff in the collar, and he could hardly move at the time, because it was very painful. He agreed he did not need those aids anymore. His physical condition had improved, but he was still in pain. Before, he could not twist his neck, as he was doing now. He can do so now, but with pain.[11]
[11]T18
32He thought during 2017 he did see surgeon Mr Nguyen, who gave him a left shoulder injection. It could be he has not seen a specialist for his back or left shoulder since 2017 because he “cannot afford that”.[12]
[12]T14
33Dr Weekes recommended a CT/SPECT scan of the plaintiff’s spine and referred him to a psychiatrist because of his depression. The plaintiff was also assessed by Dr Mehr, rehabilitation specialist.
34On 7 August 2017, Dr Mirranay referred the plaintiff to Kate Hambleton, psychologist, for management of stress and anxiety following his work injury. Dr Mirranay advised her that the plaintiff was incapacitated and feeling very down.
35On about 14 September 2017, the plaintiff again saw Dr Weekes, who recommended he participate in a multidisciplinary pain management program.
36On or about 2 November 2017, the plaintiff was reviewed by Dr Katherine McQuillan, psychiatrist, who recommended ongoing psychological support. He could initially did not remember seeing her, “because they did not want to pay for treatment after 2017.” He then agreed he saw the “lady psychiatrist.”[13] He agreed she recommended that he see a psychologist, but he could not remember seeing one.[14]
[13]T11
[14]T13
37On or about 22 November 2017, he underwent a hydrodilatation of his left shoulder at Dandenong Hospital.
38In October 2018, he started work with JC Quality Foods as a delivery driver.
39On about 25 March 2019, the plaintiff attended Dandenong Hospital Emergency, as he had been experiencing several days of right-sided pain radiating to his right leg. He had a CT scan of his abdomen and was given an intravenous infusion. He was diagnosed with acute appendicitis and subsequently discharged.
40While working for JC Quality Foods in May 2019, a steel frame fell on his left shoulder and neck. He attended Dr Mirranay[15] and then had and MRI and CT scan of his cervical spine at Knox Hospital on 16 May 2019. He was told the results thereof and that there were no significant changes to previous scans. He remained off work for several days and then returned to light duties. He did not lodge a Workcover claim and was able to resume unrestricted duties.
[15]The plaintiff appears to have seen another GP at this time
41As at June 2022,[16] about once a fortnight, the plaintiff undertook hydrotherapy at Fountain Gate and did exercises he was taught by his physiotherapist. He continued under Dr Mirranay’s care, whom he saw about every fortnight.
[16] Plaintiff’s affidavit sworn on 9 June 2022
42He was then taking Nurofen and Panadol, two at night, and Panadol Forte as required. He avoided Panadeine Forte during the week because of his driving role and the effect of the medication.
43He had pain in his neck, thoracic spine and lumbar spine, and also a separate pain in his left shoulder.
44His neck pain was strong, stabbing, and constant. It worsened with activity like turning, twisting, lifting and prolonged forward neck flexion. He also experienced numbness and tingling in both hands. He was more limited in his ability to perform head checks. When neck pain worsened, it lasted from around 10 minutes up to several hours, depending on his activity. At other times, he had a constant, dull aching pain.
45He also experienced a strong constant pain in his thoracic spine, which worsened with activity, of a similar duration to his cervical spine pain, and when it worsened, it became a stabbing, aching type of pain.
46In addition, he experienced constant lumbar spine pain. At times, it lessened but the pain remained.
47A range of activities aggravated his lumbar pain. He generally experienced an ongoing pain in his lumbar spine, but the worst pain occurred every few days based on activity.
48Prolonged postures were restricted because of his neck, thoracic and lumbar spine injuries, and he was also restricted in driving.
49He had pushed himself to return to work as a driver to earn an income, but he had to modify the way he worked. He then took more breaks than he would otherwise have needed and lay down to rest because of the pain. He was fortunate to have flexibility in his work so he could take more breaks.
50After driving during the day, he needed to rest by laying down, using heat packs, hot showers and avoiding strenuous use or activity of his spine when not working. His daughter also applied Voltaren and massaged his spine when he experienced worse pain.
51He had a separate pain in his left shoulder which was of a dull aching type, which became sharper with activity. He tended to use his right arm more.
52He experienced disturbed sleep due his neck and thoracic spine pain and, separately, lumbar spine pain as well as his left shoulder pain. He found it difficult to get comfortable. He was woken by pain throughout the night, waking around four to six times a night and generally remained awake for a while before being able to go back to sleep, but sometimes he was not able to.
53When he woke due to pain, he tended to take Panadol and Nurofen, and have a stretch and walk around. As a result, he woke up unrefreshed in the morning and felt tired and groggy and had difficulty concentrating.
54He tended to push through the pain because he needed to work, but at the end of the day, he was fatigued and experienced increased soreness in all levels of his spine and, to a lesser extent, his shoulder.
55He lived in a bungalow behind his ex-wife’s house. He was reliant on his daughter to clean it. He had difficulty with household chores and, as a result, avoided many of them, but tried to help around the house as much as possible. However, he had to do these activities in small bursts.
56Prior to the incident, he used to enjoy being active and playing sport; playing basketball with his son, and soccer with his family and friends at the park. He was reasonably fit but was now far more limited. He also used to enjoy bike riding with his children.
57On holidays, he and his family enjoyed going camping at Wakite Creek, about three hours from home. He would now have difficulty sleeping in a tent and camping due to his spinal injuries.
58Pre-incident, he went swimming at Edithvale beach and at the local pool, but now avoided doing so because of his spinal pain.
59He also found simple tasks such as dressing and undressing increased his spinal pain. Leaning down to tie his shoelaces or cut his toenails also increased that pain.
60These restrictions largely remain.[17]
[17] Plaintiff’s affidavit sworn 21 September 2023
61He continues to work full time for JC Quality Foods, delivering food to supermarkets. The products are light and boxed items like chips and pretzels and weigh no more than about 5 kilograms. He is given a trolley.
62He experiences increased pain in his spine after working for prolonged periods.
63He continues to require rest breaks to ease the pain in his back during the working day. He lies down in the van to rest his spine. Without those breaks, he would have difficulty continuing work. He is lucky to have the flexibility to take them.
64Whether or not he works overtime, he earns about $2,000/$2,200 a fortnight,[18] or $31.50 an hour.[19] A normal week is about 37 hours with three hours’ overtime. Some weeks, he works more than 40 hours, especially around the Christmas period. He thought his taxable income for 2023 was between $65−70,000.
[18]T14
[19]T15
65He delivers boxed items to different locations. He takes the boxes from his van on a trolley into the premises. He goes to an IGA, gets their flat trolley and takes it out to the van. “The shop people” unpack the boxes from the trolley. He packs the van using a forklift. They are all palletised.[20] The staff put the boxes in the pallet, and he uses the forklift to lift up the pallet and put it in the van.[21]
[20] T19
[21]T20
66He now uses the forklift only in the morning, when he loads the goods. While he recently told Dr Weekes said he spent 90 per cent of the time on the forklift, he was talking about when he first started that job. After that, they placed him as a fulltime driver. He now uses the forklift for about 30 minutes in the morning. He agreed using a forklift all day was easier than his current job.[22]
[22]T20
67He disagreed the boxes weighed up to 20 kilograms as his GP noted in January 2022. They have not got anything weighing more than 20 kilograms. The boxes of cashews weigh a maximum of 10 kilograms. He has a problem lifting them and he gets pain, but he has to lift them and he does it. Sometimes when he goes to IGA’s, they use their own forklifts to take things out of the van. He drives a fully enclosed Mercedes van that fits three pallets.[23]
[23]T22
68He usually starts work about 5.00am. He goes to multiple places, and usually finishes work about 3.00pm. His run is very different every day. Sometimes he goes to Sale or Geelong. The furthest place he would have been is Wilsons Promontory. He goes to Geelong and Sale once every two weeks, otherwise he drives mostly around the city, Brighton, and Dandenong. He spends a lot of time in the van during the day.[24]
[24]T23
69He could have told Dr Weekes in July this year that his driving tolerance was 15 minutes and that there was no heavy lifting - “Every 15 minutes, I stop on the side of the road and take a break, and then I’ll jump back ……just standing, rest and then I’ll go.” He stops “maybe for half a minute”, and then gets back in.[25] There are places on the side of the freeway where “you can stop, you can walk: not walk – like standing” and that is his practice every day, not just on a bad day.[26]
[25]T25
[26]T26
70Sometimes, he is able to drive for 15 to 20 minutes. He has to stop every 15 minutes because his back is hurting him a lot, especially when he drives in the winter. He did not mention this in his affidavit because he did not think it was really important, but he did say he had to take multiple breaks. He stops maybe five to six times a day, but he is “not counting it”. Sometimes, he sleeps in the back of the van. That is how bad the pain is. He does not really sleep: he lies down.[27]
[27]T26
71Cruise control has helped him a lot, and 50 per cent of the time, the van drives by itself.[28]
[28]T29
72He does not take Nurofen and Panadol during the day because they make him drowsy. He tried taking it during the day once, maybe three months ago.[29]
[29]T27
73“Seriously,” he took these breaks because he had pain in his neck and the middle of his back. “It was hurting my shoulder towards the middle of the back down there, shooting my leg.”[30]
[30]T27
74The plaintiff produced a commercial passenger vehicle driver accreditation which had been cancelled due to do with his diabetes. He had also had a taxi licence, which he did not renew.[31]
[31]T38
Current treatment
75He continues under Dr Mirranay’s care, whom he sees on average every two to three weeks for prescriptions and referrals.
76He accesses physiotherapy through Medicare for up to five sessions a year, seeing Ms Leung at Sunmark Physiotherapy. He had not accessed that treatment recently because of funding difficulties, but also because physiotherapy was not improving his pain. He continues to perform self-managed, self-funded hydrotherapy at the Fountain Gate Shopping Centre Pool about once a week.
77He continues to take two Nurofen and Panadol at night, Panadeine Forte as required and Palexia, 50 milligrams. He trialled Targin, but it caused increased headaches. He takes Palexia in the evenings when he is not required to drive the next day.
78He ultimately agreed there was no treatment that had been suggested to him, having repeatedly said he did not have treatment because he could not afford it. He had not understood the discussion about this issue because of his English, “which was good but not really perfect.”[32]
[32]T17
79Having his significant difficulties at work, he agreed he would be going to his doctor screaming for help, trying to get some treatment options. When he did, painkillers were suggested but he could not take them because he lost the hair on his eyebrows and he could not drive the day after. The painkillers made him drowsy in his head but the pain was still there.[33] Lyrica was making him drowsy. He takes Panadeine Forte now not really often.[34]
[33]T29
[34] T43
80He does not take Lyrica really often as it made him lose his hair. Every two months he takes one, but regularly he takes Nurofen and Panadol. He goes to his doctor every two to three weeks, and feels comfortable when the doctor sees him and tells him what to do, how to deal with the pain. Every day, he follows what his doctor has told him: resting in bed, walking, going to the swimming pool and hydrotherapy.[35]
[35]T30
81He only takes Nurofen and Panadol to help with sleep, after having told Dr Mirranay about sleeping problems; but then he said he could not really remember what he was taking for sleep.[36]
[36]T37
82He does not go swimming much, for two reasons: because he feels uncomfortable when he undresses at the pool because he is a bit shy; and also he has pain in his back when undressing. He does not have a bed to sit on like he does at home. He does not have problems at home getting undressed, because there is support.[37]
[37]T31
83He confirmed he was having some physiotherapy treatment through Medicare, although he had had said numerous times in cross-examination he was not having any treatment.[38] He was given five sessions of physiotherapy last year.[39]
[38]T40
[39]T41
84The pain is still there but he had “improved himself” since 2017. He wants to be a “normal human being”. Because WorkCover did not pay for his treatment, he had to treat himself. He agreed he had learnt to live with his condition, and he can work fulltime.[40]
[40]T35
85He continues to experience ongoing pain and restriction as previously described. The pain in his spine is the worst pain. While he is able to work doing deliveries, he avoids heavy lifting and overreaching.
86He demonstrated some difficulty walking up the steps to the witness box. This was because of a shooting pain in his left leg which is there the whole time. It increases when he does multiple activities at work.[41]
[41]T8
87He thought he could remember Dr Menz placing his hand on the top of his head and pressing down, causing pain in his neck when examining him. The plaintiff told Dr Menz it was hurting when he pressed down hard on his head. It was hard to get up from the examination bed because of back pain. Lying still there, he had a little bit of pain. His pain is all the time. Sometimes the pain is better than other times, when he takes medication.[42]
[42]T34
88In re‑examination, he confirmed that when walking, he had pain mostly in his left leg and in the middle of his back, because he had “spending much time in the van”.[43] When walking, the pain was still there. It is important that he does exercise for his diabetes “so that the sugar is not sitting in his blood”, but he still has pain in his back that goes into his leg when he walks.[44]
[43]T39
[44]T40
89He demonstrated the site of his pain was in the middle of his neck, and then slightly lower than between the shoulder blades, and then going down his left leg. Since he was injured, he got numbness in his arms. First it was the left arm; now the right as well. He does not get pain down the right leg, really; only the left.[45]
[45]T28
90It was correct as Dr Barton recorded in August last year that his problem fluctuates, and at times he can be fine, but on other occasions it is horrible. It goes up and down when he has medication. He then said he was in pain all the time, but sometimes it was better, and sometimes “it shoots high.”[46]
[46]T35
91At home, he rests on his bed. He continues to use heat packs and takes hot showers regularly to ease his back pain. His daughter continues to apply gel.
92His left shoulder pain has improved somewhat, but is still intermittent, normally caused by prolonged driving. It is less painful than his spinal pain.
93Sleep problems continue as a result of his spine and left shoulder. Problems with waking unrefreshed continue.
94He remains restricted in his domestic activities and ability to contribute to the house, predominantly because of his spinal pain and, to a much lesser degree, his shoulder pain.
95He remains restricted in his enjoyment of basketball, soccer and playing sport with his children. He now relies on walking to try and maintain a minimal level of fitness but misses the enjoyment of his previous activities.
96He has continued to avoid camping due to spinal pain and restrictions and, to a much lesser degree, his left shoulder pain and restrictions. He attends self guided hydrotherapy on a weekly basis but avoids swimming.
97His ability to be intimate has been significantly affected by his spinal pain.
98He continues to be restricted in dressing and undressing, but manages to avoid forward leaning and bending, and actions that aggravate his spinal pain. He has also modified how he ties his shoelaces and cuts his toenails.
99He lives in a bungalow out the back of the house rented by his wife. She pays the rent, and he helps the kids a lot. Their youngest son is fourteen.[47] He wished he could enjoy the time with his children like he did before when he was happy, going camping, doing many things. He can sit there with them and have a chat, but he cannot enjoy normal activity. His nineteen year old son would still like to go camping.[48]
[47]T16
[48]T35
Lay evidence
100The plaintiff’s ex-wife, Abir Haidar, swore an affidavit on 28 September 2023. She was born in Lebanon, where she met the plaintiff. She has lived in Australia since January 2000. They went through a formal divorce in May 2014 after having been separated for nine months.
101She lives with their three children, twins aged nineteen and a son aged fourteen, in the main house and the plaintiff lives in the bungalow out the back. They remain on good terms, and he comes into the house when he wants to see the kids, and also when he is experiencing increased pain.
102She is aware the plaintiff suffered injury in early February 2017. Before then, he was a very fit man, attending a gym most days, doing the gardening at home and walking the dogs. He was very sociable. He had helped with house cleaning, even though they were divorced. Now he needs help.
103Most days, he complains to her of neck and back pain. She has seen him having difficulties standing and being careful to move and keep his back straight, having problems twisting and rotating, and avoiding lifting heavy things.
104She is aware he works as a truck driver delivering nuts, but has seen him in greater pain after work, particularly after a long day, a restriction he did not have before, although he had some back pain at an earlier stage.
105He used to go camping with the children, play basketball, go for bike rides and run after them, but after the incident, this largely stopped. He used to spend a lot of time with Hadi, but now cannot do what he used to do physically, and seems to be getting worse.
106Their eldest daughter, Talah, helps the plaintiff by cleaning his bungalow every couple of days and washing his clothes. She also applies anti-inflammatory creams every few days. Their son, Hadi, also helps the plaintiff if he needs something in the house fixed or something to be cleaned.
Medical evidence
Treaters
Ms Amy Leung, Sunmark Physiotherapy
107The plaintiff saw Ms Leung from 28 February 2017 to May 2021.
108She thought the plaintiff’s symptoms and chronic neck and back pain were consistent with the history of the fall. He had no spinal or shoulder issues prior thereto and was working fulltime and overtime hours in his role as fleet support.
109The plaintiff’s chronic pain had resulted in chronic headaches and significant dysfunction which had impacted him and was likely to impact him in the long term physically, socially and mentally. He was unlikely to be able to engage in any full-time work involving manual handling, lifting and sustained postures.
110When last seen in May 2021, the plaintiff complained of chronic back, neck and shoulder pain and a high level of dysfunction. He was then working as a delivery driver, taking breaks as required. He had days where the pain was severe, and he was unable to work. He was managing his pain with Nurofen and Panadol and avoided strong pain killers, which affected his ability to drive.
111Lumbar and cervical spine range was about 50 per cent and limited by pain. Movement was slow and guarded.
112Treatment involved manual therapy, education regarding pain, posture, importance of physical activity and gentle land and water-based exercises. The plaintiff was also attending hydrotherapy.
113She thought the plaintiff would benefit from further intervention to manage his condition using a multidisciplinary approach with input from a pain specialist, physiotherapist, occupational therapist and psychologist.
Dr Mirranay, GP at Brentwood Park Family Practice
114There were numerous reports from Dr Mirranay who has treated the plaintiff since at least March 2017.[49] He last reported in September 2023.
[49] No clinical records
115He diagnosed work-related cervical, thoracic and lumbar spine and left shoulder injuries.
116The plaintiff had physiotherapy and pain medication. His claim was declined and he had to go back to work. In addition, he could not afford any further treatment privately or specialist treatment.
117The plaintiff’s workplace injuries were more likely a contributing factor and, to a certain degree, the cause of his injuries.
118The plaintiff was likely to be precluded or restricted in relation to activities involving lifting, bending, twisting or stooping to a certain degree. Neck flexion was causing pain, but he could do it. He could tolerate prolonged sitting, standing or walking but would need breaks. He could engage in prolonged computer use if his posture was right. He was limited in pushing, pulling or lifting, but could use plant and equipment. He had manual dexterity. He could do overhead activities, as long as there was no heavy lifting involved.
119Due to the nature of his injury, the plaintiff may have pain and may get worse with time. In terms of permanent work restrictions, the plaintiff could not do long neck bending and also could not overextend his neck. He would suggest the plaintiff avoid heavy lifting, prolonged bending and also prolonged neck extension and flexion.
120The plaintiff’s ability to work on a reliable and consistent basis may be inhibited by his chronic pain and risk of further injuries to his neck and lumbar spine. He was likely to be restricted to a certain degree due to pain and had limited capacity to be involved in sporting activities.
121In terms of further medical treatment, the plaintiff’s claim was declined. He did have some on and off pain medications and physiotherapy, but it was recommended he should see a pain specialist to review his ongoing pain related to his neck, lumbar spine and shoulder. Overall, due to the nature of this kind of injury, there was always ongoing risk of degeneration and chronic pain.
122In his October 2023 report, Dr Mirranay confirmed he thought the plaintiff’s spinal and shoulder injuries had an organic basis. The plaintiff did not have neck or left shoulder problems before the incident, but he did have lumbar back pain in the past, which was exacerbated after the incident.
Dr Daniel Lee, rehabilitation and pain medicine
123The plaintiff saw Dr Lee on referral from Dr Mirranay in April 2017 regarding widespread pain in the setting of a work injury.
124He noted the MRI scan showed some disc bulges, but one particularly at C6-7, but the compression appeared minor. There was a small anterior disc tear at L4-5.
125The plaintiff then rated his pain at 10 out of 10 worst and best on average. He was on Targin, Lyrica and Voltaren, which he said did not help.
126The plaintiff was difficult to examine. He walked uncomfortably and was moving slowly around the room. However, neurological examination was normal. He did not appear to have increased tone and abnormal reflexes in his legs, but certain movements were painful.
127The impression was that the plaintiff had widespread pain in the setting of a work injury. The plaintiff was not a surgical candidate and certainly not a procedural candidate.
128He was starting the plaintiff on Endep and had applied for a ketamine infusion. The plaintiff needed a circuit breaker to get him some normality, but he guessed the strong risk was that he was going to develop chronic pain syndrome. The plaintiff was wearing a back and neck brace that really was too far down the track for him to wear, and he suggested he should cease.
129Dr Lee last saw the plaintiff on 2 June 2017. They then planned for a ketamine injection the following month. That did not go ahead as the plaintiff elected to see a back surgeon and he did not attend any subsequent appointments.
130He was highly concerned about the plaintiff eventually developing a chronic pain syndrome.
131The plaintiff continued to wear the braces he had suggested he no longer wear, because then they would be harder to get off. The plaintiff reported a pain flare-up and his Targin was increased from 20 to 30 b.d. recently and there had been no demonstrable effects, so he suggested the plaintiff return to his previous dose and increase his Endep from one to two.
132They were to prepare for a ketamine infusion to be done late July after Ramadan.
133The plaintiff did not arrive for that procedure and did not attend for any further outpatient appointments. The message left with his staff was that the plaintiff was to pursue back surgery, an option which Dr Lee thought was poor.
134The plaintiff had a chronic pain syndrome. He demonstrated pain behaviour. His employment had been a contributing factor, but Dr Lee was not sure it was necessarily a perpetuating factor in the plaintiff’s pain condition. The plaintiff was developing an opioid tolerance and dependence.
135The plaintiff did not currently have work capacity. It was difficult to tell how much of that was due to the injury, itself, because there had been a degree of non-organic findings.
136He recommended a ketamine infusion to help delineate the nature of the plaintiff’s pain. The plaintiff did not attend for further appointments and was planning to seek spinal surgery, for which the prognosis was poor.
137The prognosis generally was poor.
Dandenong Hospital Emergency Department Discharge Summary
138The presenting problem on 13 July 2017 was headache and back pain. The past medical history was lower back injury February 2017, with left leg/foot weakness. Current medications were Targin and Endep.
139The plaintiff was noted to have a gradually worsening global headache which radiated to the neck and back, vomiting intermittently. His reason for presentation was “pain all over”. It was noted “patient stated backache is not primary concern and now new symptoms than usual”.
140The provisional diagnosis was “chronic back pain (no new concern) – Headache ?tension, no red flag”.
Professor Richard Bittar, neurosurgeon and spinal surgeon
141The plaintiff saw Professor Bittar on 19 July 2017 for a neurosurgical opinion, having been referred by Dr Mirranay.
142On examination, the plaintiff used a crutch and had a neck and low back brace. He had severe restriction of rotation of his neck to the left and moderate restriction of other neck movements. He had moderate restriction of lumbar flexion and severe restriction of extension. He had generalised spinal paravertebral tenderness, including his cervical, thoracic and lumbar spine without any muscle spasm. There was no evidence of radiculopathy or myelopathy.
143He reviewed a March 2017 MRI scan of the entire spine. The cervical spine demonstrated multilevel disc bulging and foraminal narrowing, with some loss of the normal cervical lordosis. The thoracic spine demonstrated a small right sided paracentral disc prolapse at T6-7, with no signal change or significant spinal cord compression. The lumbar spine demonstrated moderate loss of disc height at L4-5, with an annular tear. At L5-S1, there was a left sided annular tear.
144He thought the plaintiff presented with aggravation of cervical, thoracic and lumbar spondylosis. That condition was due to the fall at work and, in his opinion, the plaintiff was totally incapacitated for work.
145He did not believe the plaintiff required spinal surgery, however he required ongoing pain management and understood he had been reviewed by Dr Weekes since last seen, and also reviewed by rehabilitation specialist, Dr Mehr.
146The plaintiff’s prognosis was poor. He had sustained a very serious injury in three areas of his spine and there were no curative treatment options available. The plaintiff was likely to continue to suffer from significant pain and disability into the foreseeable future. His employment had been a significant contributing factor.
Dr Gavin Weekes, pain specialist
147The plaintiff was seen on referral from Professor Bittar, in August 2017.
148The issue then was whole neuroaxial pain (cervical, thoracic and lumbar spondylosis central sensitisation), psychology, some symptoms of depression. Medication was Targin, Endep and Lyrica and the plaintiff was having physiotherapy.
149The worst pain seemed to be in the thoracic area, but the plaintiff also got pain radiating into the shoulders, the left more than right, and also some lower back pain radiating down the left limb with associated paraesthesia in the toes of his left foot.
150Pain scores were averaging about 8 out of 10 and aggravated by walking and standing and relieved, to some degree, by hydrotherapy.
151An MRI scan of the entire spine showed multilevel degenerative changes in the cervical spine, a disc protrusion at T6-7 with no obvious spinal cord or nerve compression. There was also evidence of annular tears at L4-5 and L5-S1.
152The plaintiff then had a walking tolerance of 10 minutes and a standing tolerance of 15 to 20 minutes.
153On examination, the plaintiff was wearing a hard cervical collar and also a lumbar brace. Flexion and extension of both the cervical and lumbar spine were severely reduced secondary to pain. There was paraspinal tenderness from the cervical down to the lumbar area bilaterally, which seemed worse over the lumbar region and over the sacroiliac joints.
154He then thought it would be worthwhile considering the widespread nature of the plaintiff’s symptoms, to get a CT SPECT bone scan to see if there were any focal areas of inflammation which may be amenable to intervention.
155Overall, because of the extensive nature of the plaintiff’s pain, a more holistic approach would be the best way to proceed, and he had asked the plaintiff to have assessments for participation in a multidisciplinary cognitive based pain management program. He planned to see the plaintiff in a few weeks to check out the bone scan results and referred him to a psychologist because of his symptoms of depression.
156On review on 14 September 2017, the CT/SPECT neuraxis scan was reported as normal, hence he recommended the plaintiff participate in a multidisciplinary based pain management plan.
157He noted the plaintiff had been reviewed by Dr McQuillan, psychiatrist, on 2 November 2017, who reported a diagnosis of moderate to severe depressive disorder that had arisen in the context of pain and the associated physical restrictions and psychosocial impact, and she had recommended psychological support.
158The onset of symptomatology and the condition was a result of the workplace incident.
159He diagnosed cervical, thoracic and lumbar spondylosis. He thought the plaintiff had no fitness for pre-injury employment or for alternative duties.
160The plaintiff was next seen six years later at the request of his solicitors on 20 July 2023.
161The plaintiff’s condition had not changed significantly since last seen. He described ongoing neck pain with bilateral radiation into the shoulders, worse on the left. It could be associated with sensation of numbness in the left C6-7 dermatomes and, on the right, numbness on the C6 dermatome. His neck pain was reported worse than arm pain, and his pain scores were between 3 to10 out of 10 and the pain was constant.
162The plaintiff described ongoing constant thoracic pain on the left, with pain scores of 8 to10 out of 10. He described ongoing lower back pain, which predominantly radiated down his left leg and would spread into the S1 dermatome and be associated with paraesthesia and numbness.
163The plaintiff continued on Lyrica, Aspirin and Panadol, and had recently started another analgesic.
164The most recent investigation seemed to be the May 2019 cervical spine MRI, which revealed evidence of a right sided C5-6 disc protrusion, but no evidence of nerve root compression.
165The plaintiff had undergone a left shoulder hydrodilatation since last seen.
166Functional tolerances were then 20 minutes sitting, 10 standing, 20 walking and 15 minutes driving. Every night, the plaintiff had broken sleep.
167The plaintiff had re-joined the workforce and described working full time as a delivery driver with no heavy lifting associated with work, and 90 per cent of the time was on the forklift.
168Any repetitive bending or stooping would exacerbate the plaintiff’s pain to unacceptable levels, and during work, he would have to stop driving every 15 minutes to take a break secondary to his symptoms.
169On examination, the plaintiff had significant tenderness affecting his lumbar spine on his left, and left lower lumbar facet joints and sacroiliac joint. He also displayed significant tenderness in the left paraspinal area of his thoracic spine around the level of T5 and had significant tenderness bilaterally from the upper to lower cervical joints.
170The plaintiff presented with signs and symptoms and radiological evidence of cervical thoracic and lumbar spondylosis. He had an organic basis to his spinal injuries.
171On balance, the plaintiff’s work was causative and a significant contributing factor to his work-related spinal injury.
172As a consequence of the physical injury/ impairment of his spine, the plaintiff was likely to be precluded or restricted in relation to bending, twisting or stooping, and prolonged sitting, standing or walking.
173The spinal condition was permanent and likely to continue for the foreseeable future, because the plaintiff had continued to report a significant and severe pain, chronic pain in those areas which had not responded to treatment.
174To his knowledge, the plaintiff had no formal current permanent work restrictions. He was working full time, although he reported having a significant time off work because of his condition. In the last month he had taken seven days off work.
175Dr Weekes recommended no heavy lifting, particularly over 10 kilograms, but that did not seem to be part of the plaintiff’s workplace activities. The main factors that inhibited his ability to work on a reliable and consistent basis were the reported chronic pain and the reported functional limitations.
176As a consequence of the physical injury and impairment due to the spinal injury, the plaintiff had reported significant effects on his social, domestic and recreational activities. The main activity of daily living that was inhibited was gardening and mowing his lawns.
177The prognosis was poor, and the plaintiff was likely to continue to have some degree of pain and disability for the foreseeable future.
178The main treatment recommendation considering the widespread neuraxial pain the plaintiff was presenting with was to participate in a multidisciplinary cognitive based pain management program.
179He did not see the plaintiff for further treatment.
180Dr Weekes prepared a supplementary report dated 29 August 2023, having been provided with the plaintiff’s supplementary affidavit and various independent medical examination reports.
181He is still of the opinion the plaintiff presents with signs and symptoms and radiological evidence of cervical, thoracic and lumbar spondylosis following the work injury, the work injury was causative and was a significant contributing factor to the work related cervical, thoracic and lumbar spine injury and the plaintiff’s spinal complaints are permanent. The plaintiff’s present symptoms result from the claimed work injury.
182He disagreed with Dr Menz that the plaintiff sustained an injury which was minor, as that was quite obviously not the case. The plaintiff had reported ongoing significant pain and functional decline since the injury. He did not think that the plaintiff had significant illness behaviour despite his reported ongoing pain. The plaintiff had continued to engage with the workforce to the best of his ability. He had not found any marked exaggeration on clinical examination, so his clinical examination would be at odds with Dr Menz’s opinion.
Dr Ali Kian Mehr, rehabilitation specialist
183Dr Mehr referred the plaintiff to Dr McQueen, orthopaedic surgeon in August 2017. He advised that the plaintiff had ended up with adhesive capsulitis following surgery. Two hyrodilitations had not worked.
Dr Katherine McQuillan, psychiatrist
184Dr McQuillan, psychiatrist, wrote to Dr Weekes after having seen the plaintiff in November 2017.
185The plaintiff reported a rapid deterioration in his mood following the work incident, characterised by depression, feelings of emptiness and hopelessness.
186She diagnosed a moderate depressive disorder that had arisen in the context of pain and its associated physical restrictions and psychosocial impact.
187She suggested increasing Duloxetine from 30 to 60 milligrams for a more therapeutic effect. She also suggested psychological therapy would be beneficial and suggested the plaintiff attend his GP to see about accessing a local psychologist via Medicare or a mental health care plan. She had not made a follow up appointment but would be happy to review the plaintiff’s progress as required.
Mr Trung Nguyen, orthopaedic surgeon
188The plaintiff was referred to Mr Nguyen by Dr Mirranay in December 2017 for persistent left shoulder pain and right knee and neck problems.
189The focus of this examination seems to have been on the ? shoulder. He thought the plaintiff’s problem was mainly nerve pain or a chronic pain problem, and that he should be seen by a chronic pain specialist for further management. He had not made arrangements to see him again.
Knox Private Hospital
190The plaintiff presented at Knox Private Hospital Emergency on 17 May 2019 for review following a cervical MRI scan and relief from analgesia. Medical history indicated “review after injury to neck at work.”
191In a letter to Berwick Family Medical Centre, Knox advised the cervical spine MRI scan showed disc protrusion. There was a discussion with Mr Jithoo, neurosurgeon, analgesia and review by family doctor mid the following week.
Investigations
192Following a cervical MRI scan in March 2017, it was reported there was borderline canal stenosis at C3-4 and C4-5. There was a small right paracentral disc protrusion at C5-6 associated with mild right sided cord flattening (dynamic cord compression). There was moderate to severe C3-4 neural foraminal stenosis. Moderate right C6-7 neural foraminal stenosis and mild to moderate right C5-6 neural foraminal stenosis.
193In the lumbar and thoracic spine, it was reported there was T6-7 right paracentral disc protrusion which just reached the cord associated with minimal cord flattening, but without canal stenosis. There was multilevel degenerative change demonstrated in the lumbar spine without central canal stenosis or definite root compression. Annular tears were demonstrated in the L3-4 and L5-S1 levels.
194There was a left shoulder x-ray and also ultrasound guided left subacromial bursa injection of steroid in 2017. There was an MRI scan of the left shoulder in late 2017 and a fluoroscopic guided left shoulder hydrodilatation in November 2017.g
195Following an MRI scan of the cervical spine at Knox Hospital in May 2019, the clinical note reading “sore neck post being struck by a pole”, it was reported there was multilevel cervical spondylosis with minor multilevel cord compression, but no high-grade cord compromise. Small superimposed right paracentral disc protrusion at C5-6. Normal cord signal.
Medico-legal evidence
Impairment claim
196By letter dated 12 January 2022, Gallagher Bassett accepted liability for the plaintiff’s impairment claim in relation to psychological, neck and lower back injury, in the incident. Liability was rejected for the thoracic spine and left shoulder.
197This acceptance of liability was based on the opinion of Dr David Fish, in his report of 22 November 2021. He thought that the plaintiff’s major feature was one of a chronic pain syndrome which had developed over the course of his employment and had intensified as the years had gone on.
198The plaintiff’s neck symptoms were now the predominant ones, which were aggravated by the incident, however the thoracic spine injury should be rejected.
199Given the mechanism of injury and the duration of time since the incident, the left shoulder was not in any way related to the incident.
Dr Hazem Akil, neurosurgeon
200Dr Akil first examined the plaintiff in December 2022.
201The plaintiff then continued to have significant neck pain involving both sides of the neck, but more the left. The pain only improved when he took strong analgesia like Targin. The pain radiated towards the left scapular region and the upper shoulder region.
202The plaintiff continued to have frequent significant lower back pain, and most painful right in the midline of the lumbosacral region. The pain increased after a long day of sitting and also worsened when he attempted to do any lifting, pushing and pulling.
203The plaintiff was currently under the care only of his GP and due to significant financial distress, he had decided to commence employment as a forklift driver in 2018 and currently worked full time in that role.
204On examination, cervical forward flexion and extension was severely limited and resulted in significant discomfort. Lateral rotation of the head was also limited. The plaintiff, however, did not have any clear neurological deficit involving both upper limbs and his deep tendon reflexes were present and normal.
205Forward flexion of the lumbar spine was possible to about 30 degrees and extension to under 5 degrees. Straight leg raise bilaterally was limited to 30 degrees. There was no neurological impairment.
206He reviewed the investigations, noting the results of the February 2017 whole spine MRI scan, the March 2017 left shoulder ultrasound and the May 2019 repeat MRI scan.
207With regard to neck and lower back symptoms, and based on the clinical examination and radiological investigation, which he had reviewed himself, he concluded, the plaintiff had aggravation of cervical and lumbar spondylosis.
208The mechanism of injury was a fall after tripping on the ground and was compatible with the plaintiff’s symptoms. The fact he had prior complaints of lower lumbar pain did not necessarily mean they were directly related to his current condition. He clearly had significant worsening of his lower back condition following the incident and there was therefore no reason to think his prior complaints of lower back pain were a major contributing factor.
209The incident was the major contributing factor to the plaintiff’s lower back pain and was a major contributing factor to his neck pain, both of which were diagnosed as aggravation of spondylosis.
210The prognosis was guarded.
211While the plaintiff worked full time, however, he struggled with his work - with prolonged sitting on a forklift. His ability to do bending, lifting, pushing and pulling was severely limited and those restrictions were permanent.
212Ideally, the plaintiff should perform a job where he could alternate between sitting and standing at a desk-based environment; however, that should take into consideration his educational level, place of residence and prior work experience.
213The plaintiff struggled with domestic tasks. He used to be very keen on going to the gym, but was unable now to do so. He also struggled with sleeping because of pain.
214Permanent restrictions related to prolonged postures and bending, twisting, lifting and stooping.
215In terms of the neck and lower back, the plaintiff would require pain management, as he had earlier suggested, given the delay, the results would not be optimal and the likelihood would be the plaintiff would continue to suffer from the consequences of his injury in the foreseeable future.
216The spondylotic features in the neck and lower back the plaintiff was suffering from were a consequence of his condition and that was likely to persist into the foreseeable future.
217On re-examination in August 2023, the plaintiff continued to have significant neck and lower back pain. He remained on Targin, Panadol and Nurofen, and another medication he could not remember.
218The plaintiff worked full time as a forklift driver and found himself feeling the need to work despite his symptoms, as his financial situation became more restrained.
219Neck and lumbar examination was similar to the previous visit, with significant limitation of movement. There were no new investigations since last seen. The diagnosis remained unchanged.
220The plaintiff is a big man, and a fall due to tripping on his buttock continued to be enough to aggravate a pre-existing cervical and lumbar spondylosis.
221He respectfully disagreed with Dr Menz’s description of a minor nature injury. The plaintiff is trying hard to return to work and that is evident from the fact he is right now doing full time employment as a forklift and delivery driver 38 hours a week, despite pain.
222He did not detect any abnormal illness behaviour.
223The plaintiff’s prognosis remains guarded.
224He confirmed that, ideally, the plaintiff should perform a job where he could alternate postures. The plaintiff struggles on an everyday basis due to his symptoms at work, and also with household activities, and recreational and social.
225There is an organic basis, as evidenced from the clinical examination and the radiological investigations. There might be some psychological element due to the pain of his current condition, but the origin of the pain does have an organic basis.
226Work restrictions should continue for the foreseeable future. They would be no lifting or repetitive lifting of objects heavier than 10 kilograms, pushing and pulling or repetitive pushing and pulling or sitting or standing for a prolonged period longer than 20 minutes continuously, overhead reaching, fixed neck position in flexion for a long time.
227The future medical treatment was primarily based on physiotherapy long term, as well as hydrotherapy and pain management.
Defendant’s medical evidence
Medico-legal
Dr Anthony Menz, orthopaedic surgeon
228On examination in July 2023, the plaintiff rated his neck pain at 9 out of 10, his lumbar pain at 8 out of 10, and his left shoulder pain at 7 out of 10.
229In terms of treatment, the plaintiff had five free treatments of physiotherapy every year. He took Lyrica and other pain relief medication.
230Dr Menz detailed the incident circumstances and subsequent treatment.
231The current situation was, the plaintiff initially ceased work for about one to two years after the injury and then started work again in October 2018, driving a delivery van, which he continued to do, working 40 hours per week.
232Only one or two days a fortnight the plaintiff had no neck pain and the rest of the time, his neck pain was severe. He had severe lumbar pain all the time and his left shoulder remained painful and stiff all the time.
233Throughout the clinical examination, the plaintiff demonstrated significant and excessive exaggeration of reaction to the examination and light touch, and he also demonstrated significant illness behaviour. He was able to straight leg raise on each side to 20 degrees only, but with distraction, could sit up to 90 degrees. He had a very positive reaction to axial compression, which was another Waddell criteria, and he was extremely sensitive to light touch along the whole of his spine.
234Dr Menz had available the reports of all investigations.
235It was now six and a half years since the incident and the plaintiff’s symptoms were worse now than they were then.
236The injury the plaintiff sustained would have been of a minor nature, tripping over a hose. He certainly could not explain why six and a half years later the plaintiff continued to complain of severe neck, back and left shoulder symptoms following a minor soft tissue injury which should have resolved within three to six months maximum.
237The plaintiff presented with significant illness behaviour and marked exaggeration to clinical examination.
238The plaintiff requires no treatment into the future as most of his symptoms are of a functional nature and also associated with marked degeneration of his spine. There was minimal, if any, degeneration in his left shoulder to explain any ongoing symptoms.
239The non-work-related contribution is a severe and significant degeneration in the cervical and lumbar spine which would be the source of the plaintiff’s ongoing and current symptoms. He could not explain the symptoms in the plaintiff’s left shoulder as there is very little significant pathology there.
240The plaintiff presented with significant signs of abnormal illness behaviour and conscious signs of exaggeration.
241Dr Menz provided a supplementary report, having been forwarded reports from Dr Weekes and Dr Akil.
242He reiterated that the plaintiff tripped and fell on his buttocks, a mechanism of which he failed to understand, given the subsequent complaints of widespread pain.
243He noted Dr Lee, pain specialist, thought there was significant pain behaviour and that Dr Shannon, in March 2007, thought the plaintiff had multiple Waddell criteria, namely significant non pathological findings. Dr David Ho, in June 2017, thought there was gross embellishment of signs and symptoms.
244Dr Menz confirmed his clinical examination also had elicited multiple Waddell criteria indicative of non-pathological signs. Overall, the plaintiff’s clinical signs were perpetuated by marked functional behaviour.
245As such, these recent reports did not cause him to change any aspect of his opinion, noting it was supported by three other surgeons.
246Dr Weekes correctly stated signs and symptoms were related to cervical, thoracic and lumbar spondylosis. That is, the plaintiff’s ongoing spinal symptoms are not related to any ongoing pathology from an injury in the incident. Dr Menz totally disagreed with his view there was an organic basis, as did several other specialists, and thought there was a significant non-organic basis as the source of the plaintiff’s ongoing symptoms and disability.
247He disagreed with Dr Akil’s view that there was an organic basis for ongoing symptoms. He noted, also, Dr Weekes and Dr Akil do not seem to have the ability to demonstrate any Waddell criteria, probably because they had not desired to do so.
248There was certainly no indication for long term passive treatment, such as physiotherapy. The plaintiff needed to undertake core muscle strengthening exercises, which he was not doing, and that was one of the few aspects that had a scientific basis to it.
Dr David Barton, occupational physician
249Dr Barton examined the plaintiff in August 2023.
250The plaintiff told him that his problem fluctuated and at times he could be fine, but on other occasions, it was horrible. He reported pain extending from the neck towards both shoulders and down the lower back. He said he had pain around the left leg, which he called nerve pain, which extended all the way to the foot. He believed back and neck movements were limited.
251The plaintiff reported trouble doing checks while driving, and driving made his symptoms worse, as did lifting boxes at work.
252The plaintiff had had five treatments of physiotherapy through Medicare each year and had had massages. He saw his GP about monthly and took Nurofen and Paracetamol, typically two of each at night. He walked about 20 minutes for two days, had a day off and walked again for another two days.
253The plaintiff was strongly symptom and disability focused, with a high degree of illness behaviour during examination, with much grimacing and complaints of pain, and he tended to move cautiously.
254On examination, there was no wasting or muscle spasm. There was very limited lumbar movement, and the plaintiff reported some increasing back symptoms with axial loading. There was much grimacing and complaints with his pain as he demonstrated limited back movements.
255All neck movements were limited to about half the expected range with, again, grimacing and complaints of pain.
256Sensation and reflexes were normal in the upper and lower limbs. There was global weakness throughout the left leg and muscle power was generally reduced throughout the left arm.
257He noted reports of the investigations were included and would not be repeated.
258He thought what seemed paradoxical was the high level of reported symptoms and claimed level of disabilities related to them. There were, however, a number of features that pointed towards a considerable degree of illness behaviour, in particular, the lack of any physical findings that would support a problem that had lasted for six plus years, and dramatically described symptoms, which were typical of abnormal illness behaviour, the discrepancy between limited straight leg raising and postures noted at other times, and the generalised weakness throughout the left arm and left leg that did not fit with any muscular or neurological problem.
259He accepted, initially, the plaintiff may have had a soft tissue injury. X‑rays taken on the incident date showed some minor longstanding changes in the back of no particular significance or consequence, which clearly predated the onset of symptoms.
260Investigations showed some longstanding generalised problems and there was a back problem from 2007.[50]
[50]A bulged disc when doing his NAMAZ
261He would accept the long and short-term prognosis is excellent. He did not believe the plaintiff needed any ongoing treatment apart from simple reassurance, and encouragement to exercise and lose weight.
262He believed any soft tissue injury that may have occurred at work had long since resolved. He did not believe the claimed injury would have any impact on activities of daily living or domestic, social and recreational activities.
263Dr Barton provided a supplementary report, having been provided with the reports from Dr Weekes and Dr Akil.
264He noted both reports sought to provide some link between the various radiological findings, the plaintiff’s employment and ongoing symptoms. They both considered the plaintiff’s complaints had an organic basis, although the reasoning for this seems somewhat limited. It appears, because the plaintiff had pain, his investigation showed minor changes with his age, he did some work, therefore, work must have caused the problems. Neither of the doctors had provided an explanation as to why the plaintiff’s prognosis had been so poor, why he had not responded to the various treatments which had been recommended, and that why time alone had not seen things improve after the plaintiff had ceased the alleged causative activities.
265He still held to all his opinions previously expressed. He did not believe either Dr Weekes or Dr Akil had provided a reasonable clinical basis for the plaintiff’s ongoing complaints that fits with the history the plaintiff provided.
Dr Hillol Das, consultant psychiatrist
266Dr Das examined the plaintiff on 23 August 2023.
267No psychiatric condition was diagnosed.
268The plaintiff had a history of a persistent pain condition that had been variously assessed and described, and he was on minimal treatment. He seemed to be self managing his condition well, to the effect where he found a suitable job and was presently employed full time.
269The plaintiff did not appear to have a psychiatric condition or a mental injury.
Vocational evidence
270IPAR provided a transferable skills analysis report in 2019.
271Ms Josie Pham, occupational rehabilitation consultant, thought the plaintiff was suitable for work as an administration officer, supervisor, call centre operator, data entry operator, forklift operator, courier driver, bus driver, heavy rigid driver, security guard, bricklayer and painter.
Overview
272It is accepted the plaintiff suffered a spinal injury in the incident.[51] However, the defendant’s case is that the plaintiff cannot point to any clear organic pathology to explain his very extreme complaints of constant pain in all areas of his spine.[52]
[51]T47
[52] T49
273While the diagnosis relied on by the plaintiff is one of aggravation of cervical and lumbar spondylosis to which the work duties continue to contribute, the defendant’s position, as per Dr Menz and Dr Barton, is that there was a soft tissue injury only which would have resolved within months of the incident.
Credit
274As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[53]
“… 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.”
[53](2010) 31 VR 1 at paragraph [12]
275I am mindful of what was said by Chernov JA in Dordev v Cowan & Ors,[54] 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.
[54][2006] VSCA 254 at paragraph [14]
276Accordingly, in this case, what appear on their face to be medico-legal opinions supportive of the plaintiff’s application, must be looked at in the light of my views as to his credit.
277The defendant’s submission in terms of credit was in essence, the plaintiff is exaggerating the severity of his symptoms. He would not be able to work full time with the level of pain he describes, particularly without significant treatment. It is not a case of stoicism, his spinal condition is just not that bad.[55]
[55]T53
278In response, it was submitted the plaintiff was a witness of credit who gave evidence in a forthright and frank manner, making appropriate concessions. The defendant had surveillance footage available but elected not to show it.[56] On that basis, there is little criticism the defendant can make. The plaintiff is doing his very best to cope with daily pain.[57]
[56]T65
[57] Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Sutton v Laminex Group Pty Ltd (2011) 31 VR
100
279I accept the tenor of the defendant’s submission. It is difficult to see with the plaintiff’s level of symptoms and pain he describes that he would be able to work full time without the need for significant ongoing treatment. I do not accept the plaintiff is a stoic. He would not be able to work full time in his present job if he suffers the level of symptoms he describes. I do not accept his evidence that he takes breaks every 20 minutes or so from driving to have a rest. There is no evidence corroborating any difficulty he has at work or the need to take time off work because of spinal pain.
280Further, the plaintiff’s evidence about his medical treatment was not credible. I do not accept that funding for the ketamine infusion was denied as he maintained. It is clear from the treater Dr Lee that approval was obtained, the plaintiff was booked in for the infusion but did not go ahead with it as he had decided to see a surgeon. Also, while the plaintiff repeatedly maintained he did not have treatment because he could not afford it, he finally conceded no treatment had in fact been suggested.
Organic basis
281In Meadows v Lichmore Pty Ltd,[58] Maxwell P set out the two-step manner in which the Court ought to approach the task in this case:
“… The first step is to ask whether there is a substantial organic basis for the pain and suffering consequences relied on. If the answer to that question is affirmative — and, of course, if the pain and suffering consequences satisfy the statutory criterion — then the applicant will succeed without the need for any ‘disentangling’ of the physical contributions to the pain and suffering from the psychological contributions.
If, however, that first question is not — or cannot be — answered affirmatively, then the applicant will need to take the next step and ‘disentangle’. That is, the applicant will need to be able to separate the physical contribution to the pain and suffering from the psychological, in order to be able to satisfy the court that the pain and suffering consequences attributable to the physical injury satisfy the statutory test.”
[58] [2013] VSCA 201 at paragraphs [21]-[22]
282The defendant’s case was that there was no organic explanation why having suffered a soft tissue injury six years ago, which had not required major intervention, the plaintiff would still have the severe problems of which he complains.[59] The views of Dr Barton and Dr Menz were relied on in this regard. Further, there was no organic explanation why the plaintiff has pain down the leg or issues with both arms in terms of numbness and pain. Accordingly, his spinal complaints cannot be organic or referable to the incident.[60]
[59]T52
[60]T55
283It was submitted all of the treaters in the early stages strongly emphasised a chronic pain issue, highlighted by the fact that Professor Bittar referred the plaintiff to Dr Weekes, who referred him to a psychiatrist. Dr Lee initially foreshadowed there was likely to be a chronic pain issue, and diagnosed a chronic pain syndrome with demonstrated pain behaviour.[61]
[61]T54
284While counsel for the defendant conceded there was radiology indicating spinal degeneration and acknowledged that Dr Menz found severe and significant degeneration, it was submitted the issue was best looked at in terms of the plaintiff’s significant pain behaviour.[62] Radiology is not the answer to the plaintiff’s presentation, which is dominated by significant illness behaviour.[63] Dr Menz was critical of the examinations conducted on the plaintiff’s behalf as those examiners did not address Waddell signs.
[62]T56
[63]T57
285Dr Barton also thought there was abnormal illness behaviour. It was submitted his clinical examination was inconsistent with a person working 40 hours a week as a delivery driver.
286Dr Akil and other examiners relied on by the plaintiff totally accepted the plaintiff and took his complaints at face value, but without analysis of why he continued to suffer spinal problems six years after injury, and his ability to work 40 hours a week as a delivery driver.[64]
[64]T52
287Counsel for the plaintiff submitted Dr Mirranay could provide a consistent statement of treatment and symptomatology. He has been a consistent treater throughout and provided a consistent summation of the plaintiff’s injuries and treatment. He considered the spinal condition is organically based.[65]
[65]T59
288The nub of the plaintiff’s case was that the plaintiff did not have neck or left shoulder problems before the incident, but some lumbar pain in the past, which was exacerbated after his fall at work. This is an exacerbation injury. The radiology, in particular the 2017 MRI, was relied upon.[66]
[66]T59
289It was submitted by plaintiff’s counsel that for the defendant to say there is no possible cause of the plaintiff’s symptoms defies the radiology, which includes a T6‑7 right paracentral disc protrusion. These are significant radiological findings that seemed to escape the attention of the defendant’s examiners. It was submitted their reports ought to be given little if any weight in terms of their evidentiary value.[67]
[67]T60
290Dr Menz did not address the finding of severe degeneration although he did mention it.[68] Dr Barton did not discuss the various radiological findings.
[68]T60
291The plaintiff has had treatment from early 2017, although it was conceded initially there was then a psychological focus taken, with the referral to Dr McQuillan, who assessed the plaintiff for the purposes of a multi-disciplinary pain-management program.[69]
[69]T61
292There was heavy reliance on Professor Bittar’s July 2017 examination. The Professor of Neurology thought there were no curative treatment options available and the plaintiff was likely to continue to suffer from significant pain and disability into the foreseeable future.[70]
[70]T61
293Dr Akil disagreed with Dr Menz’s description of a minor injury, pointing out the mechanism of the fall involving a heavy man.[71] Dr Akil thought the injury had an organic basis, evident from the clinical examination and radiological investigations, which was in stark contrast to Dr Menz and Dr Barton, who made oblique references only to the radiology.[72]
[71]T63
[72]T64
294Dr Menz was criticised on the basis that he could not totally disagree there was no organic basis and at the same time accept significant degeneration.[73] It was submitted the Waddell’s test was merely diagnostic, and it was not entirely accurate, and ought to be seen in the context of an entire clinical presentation.[74]
[73]T69
[74]T69
Findings
295While radiological evidence is not a prerequisite for a finding of serious injury and it is the impairment not the injury which is the relevant consideration when assessing seriousness,[75] the findings of degeneration on investigations in this case do provide some organic basis for the plaintiff’s complaints.
[75] Humphries v Poljak [1992] 2 VR 129
296However, medical opinion as to the significance of these findings on investigation differs. Professor Bittar was the highpoint for the plaintiff but Dr Lee did not give the findings particular weight.
297However, the difficulty the plaintiff faces in this application is proving that any aggravation of those degenerative changes, caused over six years ago by the incident, continues to contribute to any present spinal complaints.
The role of psychiatric factors
298Even in the early months after the incident, the plaintiff’s treaters thought psychological factors were playing a part in what at that time was a dramatic presentation. During 2017, the plaintiff presented to examiners in a severely disabled manner, complaining of widespread pain, using a walking stick and wearing both a lumbar and cervical brace.
299When seen by Dr Lee, pain specialist, in April 2017, although the neurological examination was normal, the plaintiff reported widespread pain and he walked uncomfortably and moved slowly around the room. Dr Lee was concerned about the plaintiff using these aids at such an early stage. In June 2017, he diagnosed a chronic pain syndrome. Although the plaintiff was then unfit for work, Dr Lee thought it was difficult to tell how much was due to the injury itself as there had been a degree of non organic findings. As early as 2017, he was not sure whether employment was necessarily a perpetuating factor in the plaintiff’s pain condition.
300Although Professor Bittar’s examination findings in July 2017 are the high point of the plaintiff’s case, “a very serious injury to three areas of the spine and there are no curative options,” he thought the plaintiff required pain management.
301It is now over six years since Professor Bittar has seen the plaintiff. While he was then very pessimistic about the plaintiff’s future, concluding it was likely he would suffer from significant pain and disability into the foreseeable future, the plaintiff has obviously improved to the point where he was able to return to full time work a year later. There has been no re-examination arranged with Professor Bittar.
302When seen by Dr Weekes in September 2017, the plaintiff was wearing a cervical and lumbar brace. He reported widespread pain. A SPECT scan was then normal.
303Dr Weekes referred the plaintiff to Dr McQuillan in August 2017, who suggested psychology therapy would be beneficial treatment. She diagnosed moderate depressive disorder and increased medication. Dr Mirranay referred the plaintiff to psychologist Kate Hambleton August 2017.
304A number of examiners have diagnosed a chronic pain syndrome including surgeon, Dr Nguyen in December 2017, Dr Fish in November 2021, and others mentioned by Dr Menz in his report– Dr Shannon in March 2017 and Dr Ho in June 2017. While Dr Akil more recently in December 2022 thought the origin of the plaintiff’s pain had had an organic basis, he considered there might be psychological elements due to the pain of the plaintiff’s current condition.
305With these psychiatric factors in play, the plaintiff has to be able to separate the physical contribution to the pain and suffering from the psychological, in order to be able to satisfy the court that the pain and suffering consequences attributable to the physical injury satisfy the statutory test.
306This is a very difficult task for the plaintiff in this case given the lack of treatment he has required and also his ability to work full time as a delivery driver from October 2018.
The return to full time work
307The plaintiff resumed full time work as a delivery driver in October 2018. While a return to work does not prevent a finding that the plaintiff has sustained a serious injury, it is one matter to consider.
308Counsel for the defendant submitted the plaintiff’s return to work militates against a finding of seriousness in this application, although of course it did not mean there could not be such a finding.[76]
[76]T54
309In response, counsel for the plaintiff submitted the plaintiff works with pain and under sufferance, and due to his stoic nature, he has managed to apply himself, “which is the goal of the scheme.”[77]
[77]T62
Findings
310The plaintiff’s current job involves lifting boxes weighing 5 kilograms up to 10 kilograms. He spends a lot of his time doing deliveries to supermarkets in the city and also country areas as far Melbourne as Sale. He also does some forklift work for half an hour each morning. He has been able to perform these duties, full time plus regular overtime, for a number of years, albeit he says he requires many breaks. It is not the case that most of his duties are on the forklift, as he recently told Dr Weekes.
311In my view, the plaintiff would be unable to perform these duties which include manual handling, lifting and bending if he has the significant level of lumbar and cervical restriction shown on examination – at times, half the normal range of spinal movement. I do not accept he could work full time if he suffers the significant spinal pain he has deposed to and described to examiners. I reject the submission that the plaintiff is a stoic.
312While the plaintiff’s evidence is that he does these duties without painkillers as they make him too drowsy to do his duties, he agreed his problems with drowsiness related to Lyrica, not painkillers. In those circumstances, there does not seem to be any reason why he would not take painkillers if he has the unremitting pain he describes. His evidence generally about his current medication was not clear.
Treatment
313What the plaintiff does about the pain in terms of the pain is a relevant consideration when assessing seriousness.[78]
[78] Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1 at paragraph [11]
314Both parties made submissions in relation to the amount of treatment undertaken by the plaintiff post incident.
315Counsel for the defendant submitted the lack of treatment was a very significant issue in this case. While the plaintiff described extreme difficulties at work, he had done nothing about them.[79] That was said to be a very important point in this application where there is a division in the medical evidence as to whether the plaintiff’s complaints are organically based or psychologically driven or there is just no real basis for them. [80]
[79]T48
[80]T49
316The plaintiff is doing nothing in terms of treatment in improving his condition, but even more so, is able to work full-time, 37 and a half plus hours per week. It was submitted the very obvious explanation was his pain was not that severe, not that disabling that he needed to seek medical attention, and “the proof is in the pudding” with the number of hours worked.[81]
[81]T50
317Any suggestion that the plaintiff had not sought treatment because he was a stoic was disputed. The stoic, in one sense, is a complete defence to the position of doing nothing, but in this case, there are no doctors suggesting any significant treatment or course of activity, and that is because, it was submitted, there is the absence of a real organic driver or significant injury. It is not the case of neck surgery and keeping pushing on. It does not even get to a stoic sort of analysis. “The factual matrix isn’t a case where the stoicism applies.”[82]
[82]T50
318The plaintiff having confirmed that it is Lyrica that causes drowsiness, there is no reason why he then could not take Panadol or Nurofen during the working day for pain relief if he needed it.
319It was submitted the plaintiff is a man who obviously is not unhappy going to doctors, seeing his GP every two or three weeks, and there is no sensible explanation as to why, in those circumstances, he has not taken further steps to improve his situation.[83]
[83]T51
320Counsel for the plaintiff submitted, treatment-wise, to maintain himself, the plaintiff was doing his own self-guided program, plus taking daily medication in the form of Panadol and Nurofen, with two tablets at night, and Lyrica on occasion.[84] He gets comfort from attending his GP, in terms of managing his pain.[85]
[84]T63
[85]T67
Findings
321During 2017, there were a number of specialist referrals and the plaintiff underwent procedures on his left shoulder. He has continued under the care of Dr Mirranany whose clinical records are not in evidence. The only spinal treatment appears to be physiotherapy from Ms Leung from February 2017 to May 2021 under Medicare.
322The plaintiff’s spine was investigated in May 2019 after an incident at work that month with his current employer where he injured his neck and left shoulder. He was then seen by a different GP, from whom there is no report or notes available.
323There is no mention of that incident or investigations in relation thereto at that time by Dr Mirranay or noted by other examiners in any detail.
324The plaintiff was not cross examined on this issue, the GP at Berwick Family Medical Centre obviously thought it prudent to arrange further spinal investigations in relation to the plaintiff’s complaints at that time.
325While the plaintiff says he continues to see Dr Mirranay every two to three weeks and these visits give him some comfort, little spinal treatment has been provided and he simply recommends the plaintiff continue walking and resting. He does not provide any formal restrictions on the plaintiff’s current work duties.
326While counsel for the plaintiff submitted Dr Mirranay’s reports fill any gaps in the evidence about the plaintiff’s progress, they do not really advance the plaintiff’s case. Dr Mirranay’s notes were not in evidence. There is no evidence from him of reports by the plaintiff of ongoing significant pain and functional decline since the injury. His reports were simply a number of referrals and summaries of the treatment given with no analysis or discussion of the plaintiff’s progress over the six years he has treated him. When he finally said the spinal condition was organic, his explanation simply was that was the case because he did not have neck of left shoulder problems before the incident, but he did have lumbar back issue in the past which exacerbated after his fall at work. He did not mention the May 2019 incident or the further investigations at that time ordered by Berwick Family Medical Centre.
327A number of other consequences were relied on by the plaintiff including interference with domestic activities such as gardening and housework and problems interacting with his children and engaging in some recreational activities. It is difficult to accept with his ability to work full time and the duties he undertakes, that there would be any significant interference with these other activities due to spinal pain.
328Also of relevance when considering the seriousness of any spinal impairment, is the plaintiff’s left shoulder condition, no longer part of this application. This condition continues to give him problems with a number of activities, including sleep, as he deposed.
329In 2017, the plaintiff had significant treatment for his shoulder including a steroid injection and hydrodilatation. Ongoing physiotherapy from 2017 to 2021 included treatment for his left shoulder. The plaintiff’s claim for an impairment benefit for this condition was rejected.
330While the plaintiff plays down the seriousness of any ongoing shoulder problem, he deposed that shoulder pain does place some restrictions on his ability to engage in a range of activities, including work and sleep.
331In Peak Engineering & Anor v McKenzie,[86] Maxwell P described the difficulty faced when a separate injury is also producing pain and suffering consequences for the claimant, as well as the relevant injury.
[86] [2014] VSCA 67
332In such circumstances:
“The Court must decide whether the consequences of the original injury are ‘more than significant or marked, and ... at least very considerable’. For that purpose, it is necessary — so far as the evidence permits — to identify the consequences properly referable to the original injury, and to exclude the consequences referable to the subsequent injury.”[87]
[87] At paragraph [1]
333Taking all the evidence into account, excluding the consequences of any shoulder condition and also any psychological factors,[88] I am not satisfied that the consequences of any spinal impairment related to the incident are serious.
[88]Section 325(2)(h)
334Accordingly, the plaintiff’s application is dismissed.
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