Hassan v Victorian WorkCover Authority
[2024] VCC 346
•26 March 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-22-03640
| MIR GUL HASSAN | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE PURCELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 March 2024 | |
DATE OF JUDGMENT: | 26 March 2024 | |
CASE MAY BE CITED AS: | Hassan v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 346 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – pain and suffering – loss of earning capacity – credit
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:Johns v Oaktech Pty Ltd [2020] VSCA 10; Church v Echuca Regional Health (2008) 20 VR 566; Richter v Driscoll [2015] VSCA 142; Advanced Wire and Cable Pty Ltd v Abdulle [2009] VSCA 170
Judgment: Leave granted to commence a proceeding for pecuniary loss and pain and suffering damages
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mighell KC with Mr O Lesage | Zaparas Lawyers |
| For the Defendant | Ms C Spitaleri | Lander & Rogers |
HIS HONOUR:
Introduction
1As has been said many times, the credit of the plaintiff is often critically important to the result of a civil proceeding.[1]
[1]Johns v Oaktech Pty Ltd [2020] VSCA 10.
2In this proceeding, which is a “serious injury” application in respect to a claimed work-related injury, the Victorian WorkCover Authority (“the defendant”) contended that the critical issue was the credibility and reliability of the plaintiff. Counsel for the defendant said in opening that credit affected all aspects of the case in terms of whether the claimed injury was “serious”.[2]
[2]Transcript (“T”) 4, Lines (“L”) 1‑2.
3Then, in final submission, counsel for the defendant repeated its primary contention that the Court should find that the plaintiff in this proceeding was not a credible and reliable witness.[3] The defendant submitted that “this case boils down to whether your Honour accepts him to be a credible and reliable witness and we urge your Honour to find that he is not.”[4]
[3]T 34, L 2‑5.
[4]T 34, L 22-25.
4In that context, this is a serious injury application brought pursuant to s335 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”).
5Mr Mir Gul Hassan (“the plaintiff”) is a now 40-year-old, married man, and father of three young boys. He was born in Pakistan, migrated to Australia in 2011 and the following year commenced work for Marketplace Fresh Wholesale (“the employer”) as a storeman and later to include work as a forklift driver. His work involved manual activity associated with lifting and moving boxes of fruits and vegetables in a wholesale setting.
6The plaintiff claimed to have suffered a “serious injury” in one or the other of two ways.
7First, he claimed to have suffered a “serious” physical injury by way of a permanent serious impairment or loss of a body function, namely, a back injury, due to the repetitive nature of his work with the employer, including from about late 2018.
8Second, he also claimed to have suffered a serious psychiatric injury by way of a “permanent severe mental or permanent severe behavioural disturbance or disorder”, occurring as a reaction to the back injury.
9The plaintiff claimed that both the back injury in isolation and the psychiatric injury in isolation, bearing in mind that they cannot be combined for “serious injury” purposes, were such that he was entitled to the leave of the Court to commence a common law proceeding for both pain and suffering and pecuniary loss damages.
10The proceeding was conducted in the usual way. The plaintiff tendered affidavits and documents from his Court book. The defendant similarly tendered documents from its Court book. In addition, the defendant tendered and played in Court video surveillance of the plaintiff,[5] which it placed heavy reliance on for the purpose of the credit attack.
[5] Exhibit D1.
11I have considered all the tendered evidence, together with the transcript of the plaintiff’s oral evidence, but I shall only refer it to the extent necessary.
12To return to the key issue of the plaintiff’s credit, the defendant contended that because his credit was impugned, he simply could not be believed as to the true level of any ongoing impairment consequences either from the back injury or the psychiatric condition.
13Second, as part of the credit challenge but also as part of a challenge about whether the plaintiff had suffered a work-related injury, the defendant attacked the voracity of the plaintiff’s claim that he had injured his back at work.
14The challenge about compensable injury arose because, as I shall come to, the plaintiff’s first attendance on a doctor for back pain was in November 2019, after his employment had been terminated by the employer and he did not make a claim for the back injury until later in November 2019, after he had sought legal advice.
15Therefore, the defendant pointed to the fact that the plaintiff only made a claim after his employment was terminated for misconduct, when he caused a minor forklift accident with a pedestrian at the employer’s premises, as casting a doubt on the reliability of his claim to have suffered a work-related back injury.
16In short, while the main challenge was based around credit, the defendant also challenged the plaintiff, as to the issue of the causation of any low back condition, and by extension, the aetiology of any psychiatric condition.
17To resolve the disputes in this proceeding, I shall broadly deal with some of the evidence, before considering separately the relevant evidence for the claim based on the low back injury and then the relevant evidence for the claimed psychiatric injury.
The evidence
18To understand the defendant’s challenge to the plaintiff’s credit, it is convenient to set out what he said in his affidavits and in his oral evidence, together with the history recorded by medical practitioners. The defendant placed emphasis on what it submitted were discrepancies between what the plaintiff had said in his evidence and to the doctors, compared with what was shown in the video surveillance.
The plaintiff’s affidavits
19The plaintiff swore three affidavits. The first of those was sworn on 29 April 2022.[6] In that affidavit, he set out how he commenced developing back pain at the end of 2018. He said:
[6]Plaintiff’s Amended Court Book (“PACB”) 6.
“The injuries
15. At the end of 2018, I started developing back pain.
16.I then reported it to my manager and went to work. My manager said he would not put me in the cool room to avoid the heavy lifting and then he put me in the cool room again.
17. I was just taking pain killers as I wanted to stay at work.
18.I then had a further exacerbation of back pain when I had an accident with a fork lift involving a cleaner.
19.My employer was not happy and they terminated my employment in November 2019.
20.I have tried to be able to find another job, I did find one and worked about 1-2 weeks but I couldn’t cope due to the pain.
21.My psychological state has also become really bad. The pain has affected my ability to sleep and now I am worried and concerned about my pain all the time.
22. I have pain in my back which extends into my right leg.
Treatment
23.Initially my GP was at Dandenong, after the injury I changed my doctor to Hampton Park. My GP is Dr Raheel Rabbani.
24.I had a CT scan on 11 September 2019 which I understand showed that I had a L4/5 broad based disc bulge.
25. I was then referred to Dr Hazem Akil, Neurosurgeon, on 25 June 2020.
26. I have been told that surgery will not help me.
27. I have been referred to Dr Robert Gassin to manage my pain.
Current Treatment
28.I take the following medication, Quetiapine (50mg), Targin (10mg), and Duloxetine.
29. I see my GP, Dr Rabbani regularly.
30. I also see a psychiatrist and a psychologist.
31. I am attending the Pain Management Program with Precision.
Employment
32.I have not been able to do any work since the 1-2 weeks I tried after I was terminated.
33. I am not sure what work I would be able to do with my back pain.
34.At the time of my injury, I was earning approximately $813 gross per week.
35.I do not know what other work I would be able to do given that my English is not good enough.
Consequences
36.I have very bad back pain which varies in intensity. It is worse if I am more active but it is always there even if I am not active.
37.My pain is in my lower back, and radiates to both my legs. It goes into the souls [sic] of my feet. Sometimes the pain gets so severe in the right leg that I can’t explain it.
38.My sleep is really disturbed due to the pain. I get woken up from the pain and I can’t sleep in certain positions. When I wake up I still feel tired and I am not getting a good night’s sleep.
39.I have difficulty walking. I can walk but at a very slow pace and cannot walk for too long.
40.Sitting/Standing — I have difficulties when I sit or stand for too long which makes it hard for me. I have difficulties with getting any comfort.
41.Depression — it is really bad and I am worried about the future. I am not sure what work I can do and I need to support my family.
42.Driving — I can drive but only locally. I cannot drive as long as I want to and I get sore back when I am sitting in the car for too long.
43.I feel like I have electrical currents running down both legs. They come in waves and can occur at any time.
44.I used to enjoy being active with my children and running around and playing ball games but now with my back pain I cannot run. I have to watch my children rather than play with them. They know that I am more grumpy because of my pain. I am not the father that I want to be because of my back pain.”[7]
[7]PACB 7-10.
20In a further affidavit sworn 7 September 2023,[8] he repeated several of the matters in the earlier affidavit. He described ongoing treatment and then described his consequences as follows:
[8]PACB 11.
“Consequences
45.I continue to experience constant lower back pain and restriction. The pain is a dull aching pain with sharper flare-ups of pain. My back feels stiff and sore. My pain is worse in the morning. My pain is aggravated by activity. The pain runs down my legs worse on the right. I experience pins and needles and numbness affecting my lower limbs. There is burning pain.
46. My right shoulder pain has improved. My back pain is my biggest problem, as well as my psychiatric issues related to the pain.
47.I experience a number of physical symptoms and restrictions due to my back pain. I have greater difficulty with prolonged walking, sitting, and standing. I feel like my walking style is different. I sense weakness in my legs and feet. My back movements are restricted. I have problems with bending, leaning, reaching, twisting, lifting, carrying, pushing and pulling. My back feels weaker.
48.My sleep continues to be impacted by my lower back pain. I have pain when lying down. The pain is worse at night. I have difficulty falling asleep. I experience broken sleep. I am often tired during the day. My mind also interferes with sleep as I tend to worry at night, but the pain is the biggest issue.
49.I experience domestic and household restrictions due to my condition. I am able to drive the kids around, but longer distances can be a problem. I am lucky in that my wife does most of the housework. I try to help out with picking up after children and the like but it usually ends up in pain.
50.My hobbies and pastimes have been affected by my condition. I am less outgoing. I spend more time indoors. My ability to socialise and go for longer walks is diminished. I did recently visit my mother in Pakistan because she was sick. I struggled on the flight and I kept standing up near the toilets to stretch. I continue to have problems playing and interacting with my children in the way that I want to.
51.In relation to my mental state, I continue to experience feelings of major depression and anxiety. I experience low moods and low energy. I have greater difficulty feeling enjoyment. I am frustrated and angry about my condition. I have problems controlling my emotions. I tend to snap. I get overwhelmed. I have problems with concentration and memory. The stress of litigation has affected my moods, but the main driver of my symptoms is my pain and restriction. I was also previously upset with my former employer, but those feelings have mellowed.
52.In relation to work, I remain off work and in receipt of disability payments for my back and mind. I am told that it has been suggested that I could perform the following employment roles: forklift driver; commercial cleaner; factory process worker; packer (general) with training; and, production clerk. I do not believe that I could do any of these jobs by reason of my injuries and symptoms. My pain is a big barrier to overcome. I am also the first to admit that I am not very intelligent, and I would have problems adapting to a different work setting or undertaking training to learn new skills. I had problems keeping still and paying attention during the pain management program. My computer skills and language skills remain limited. I do own a smart phone and I can text and surf the internet, but I do not have good practical working skills, and I do not know my way around software programs. I relied heavily on my ability to do basic manual work. I would have problems performing manual work, or any jobs that require frequent sitting/standing or sustained concentration. My associated psychiatric symptoms would also prevent me from attending work and being able to function properly in a workplace.”[9]
[9]PACB 18-20.
21In a further affidavit sworn 1 March 2024,[10] he referred to his earlier affidavits, set out his recent treatment, including the ongoing use of Quetiapine, Tarjin and Duloxetine. He said that his pain and suffering consequences continued to persist in the manner deposed in his earlier affidavits.[11] He described his condition as continuing to deteriorate and continuing to experience severe levels of low back pain and restrictions. He said the pain did vary and he had better days, thanks to medication. He then said:
“14.In relation to my physical restrictions and limitations, I continue to have greater difficulty with prolonged sitting, standing, or activities which involve bending, lifting, squatting, flexion/extension, leaning, twisting, and pushing/pulling. If engage in such movements, it usually produces pain and discomfort. I am told that there is a reported history of me being limited to walking up to 15 minutes before resting. That is not precise. I try to remain active, and to walk and stand for longer periods on my better days, but it usually ends up in pain and the need for rest. My range of motion remains more limited. I try to move normally where possible, but it is harder and I get pain. I still feel weak in my back.
15.In relation to household and domestic restrictions, I continue to be impacted in the manner deposed of in my earlier affidavits. I do try to help where possible with the children, but it is harder. In relation to driving, I have greater difficulty with longer distances. I am told that there is a reported history of tolerances of no greater than 15 minutes. That is not precise. I can drive for longer periods when I have to, but it produces symptoms. I can also do grocery shopping if I need to, but with greater difficulty and limitation. I try to do things around the house, but it often results in pain. I continue to rely on my wife for greater assistance with most chores. My wife helps with aspects of getting dressed, but not always. I am able to toilet independently.
16.My hobbies and pastimes continue to be impacted in the manner deposed of in my earlier affidavits. I continue to be less active, social and outgoing than before. I am told that there is a history of me never going out. That is not so. I go out less. I do try to go out and to live a normal life as best I can, but my pain interferes. I continue to get less enjoyment out of life. I am told that there is a history of my not being able to play with my children. That is not precise. I still play with them when I feel up to it, but I am more limited in what I can do. If I do handle the younger one, it is painful. I feel like less of a father and husband in that respect. This makes me upset.
17.My sleep continues to be impacted in the manner deposed of in my earlier affidavits. I continue to experience broken sleep due to pain, difficulties getting to sleep, and tiredness. My mind also interferes with sleep due to worrying about my situation at night, but the pain is the biggest issue.
18.In relation to my mind, I continue to experience symptoms as deposed of in my earlier affidavits. I have ongoing problems with concentration, attention and memory. I continue to have severe feelings of depression and anxiety with low moods, low motivation, and a loss of confidence and energy. I try to put on a brave face for the children where possible, and to try to not drag the whole family down, but I am miserable inside. I am still frustrated and angry about my condition. I have problems controlling my emotions. I am still snappy and grumpy. I get overwhelmed. The stress of litigation has affected my moods, but the main driver of my symptoms is my pain and restriction. I do not see things improving after litigation unless my pain magically disappears.
19.In relation to work, I continue to be off work and on disability payments. Dr Khan continues to issue certificates of incapacity. I continue to be incapacitated for work in the manner deposed of in my earlier affidavits, and unable to do the jobs identified by the defendant. I say further that I could not cope with the physical requirements associated with being a forklift driver, commercial cleaner, factory process worker or packer. I do not believe that I could cope with the physical or mental demands associated with the production clerk role due to my pain and limited ability to properly concentrate. I would not have the administrative or the organisational skills required. I could not do this job on any reliable or consistent basis.”[12]
[10]PACB 112.
[11]PACB 114, paragraph [11].
[12]PACB 114-116.
Summary of the plaintiff’s affidavits
22Before moving on, it is convenient to record some observations of the plaintiff’s affidavit evidence.
23In his first affidavit sworn 22 April 2022, the picture was one of very bad back pain that interfered with a range of activity. As an example, he said in that affidavit that walking was difficult, he walked at a slow pace and could not walk for long. He said he could only drive locally. He put limitation on a range of daily activity. Overall, he said his psychological state was really bad.
24By the time he swore his second affidavit on 7 September 2023, he had softened the language used to describe his pain and restrictions. The back pain was said then to be a dull ache, with sharper flare ups. He deposed to engaging in daily activity. The thrust of his evidence had moved to broadly say he could still do a range of things but with difficulty. For example, he then said he could drive the kids around but that longer distances could be difficult. By then, he referred to low mood and energy.
25The tone of the evidence in the second affidavit was that his physical condition and physical tolerances were better than what he had said in the first affidavit.
26That tone of improvement continued through the language he used to give evidence in the recent affidavit, sworn 1 March 2024. By then he described the ability to engage in daily activity but that his tolerances were reduced. He said that prolonged activity caused difficulty. He set out how he could shop, drive, and generally try and live as normal a life as best he can.
The video surveillance
27The plaintiff was subjected to a short, sharp, and appropriate cross-examination, much of it built around video surveillance.
28Before setting out the relevant cross-examination, it is convenient to record my observations of the video surveillance.
29I acknowledge that, in forming opinions based on video surveillance, the video surveillance must be seen for its duration, time, and context. Relevant considerations include what the plaintiff says about it, and whether it has been provided to medical examiners for comment.[13]
[13] Church v Echuca Regional Health (2008) 20 VR 566.
Video obtained on 22 April 2023
30The defendant tendered and played in Court video surveillance of the plaintiff obtained on 22 April 2023.[14] The video surveillance went for a total of approximately 35 minutes. It commenced at approximately 8.47am, when the plaintiff was seen walking into an Aldi supermarket. There was then video surveillance of the plaintiff intermittently until 9.16am, when he left the supermarket and drove off in his car. That section of video surveillance mostly showed him sorting through items of clothing, in my opinion, without any obvious restrictions. He was seen to stand, bend and reach as required.
[14]Exhibit D1.
31There was then further video surveillance from approximately 10.19am through until approximately 12.20pm. That video depicted the plaintiff and his family driving to a shopping centre and engaging in mundane activity at the shopping centre, mostly shopping for clothes. The plaintiff was seen to walk, stand, bend, and reach without any apparent difficulty. He was also shown on several occasions to squat down to inspect clothing on a low shelf, again without any obvious difficulty.
32The plaintiff said in his oral evidence that when he was seen on the video to place his hand somewhere near his hip or the small of his back, that was a movement he did because he had a back problem. However, from my observations, I did not see any evidence that would either prove or disprove that he had a bad back. The way in which he stood and the posture that he adopted seemed consistent simply with someone engaged in shopping and not someone who was managing a bad back. I do not accept that any of the movements were to manage a bad back.
33As mentioned, the defendant played approximately 35 minutes of video surveillance obtained on 22 April 2023. In response to a call from the plaintiff, the defendant admitted that, on various dates between 23 August 2022 and 23 November 2023, it had the plaintiff under surveillance for a total of 60 hours and obtained a total of 59 minutes and 9 seconds of video surveillance.[15]
[15]Exhibit P1.
34Therefore, the plaintiff submitted that what was tendered should be seen in the context of the overall period of surveillance and the fact that the defendant had made a forensic decision not to play all the video footage that it had obtained.
35The plaintiff further submitted that the Court should infer that the video surveillance that was not played and tendered would not have assisted the defendant’s case. The plaintiff also highlighted that the video surveillance on 22 April 2023 was not for a continuous period and had several breaks in which the Court could infer that the plaintiff was not engaged in any physical activity or activity more strenuous than what had been captured on the tendered video surveillance.
36It is probably a disservice to the defendant’s submissions to say that its defence to this proceeding was largely built around a contention that the video surveillance had impugned the plaintiff’s credit to an extent that sunk his case.
37Continuing with that analogy, in my view, the video surveillance was good enough to cause some leaks in his case, but not, of itself, to sink his case.
38For present purposes, the video surveillance neither proved nor disproved that the plaintiff had a bad back. He was shown on one day, over several hours, with gaps in the video, to have a capacity to drive a car, to shop, to stand, bend, reach and squat. In my assessment, at no time was he in any obvious pain or shown to grimace or react as if he was in severe pain.
39The tendered video surveillance, on one view, was relatively innocuous, but parts of it was inconsistent with some of the other evidence.
40I do consider it relevant that, for 60 hours of surveillance, the high point of the defendant’s credit attack was video surveillance of a man shopping for some of life’s essentials for himself and his family, without any obvious restriction or limitation due to a painful low back.
41I shall return to express my conclusions, including about the video surveillance and credit, once I have set out the balance of the relevant evidence, to which I now move.
Cross-examination of the plaintiff
42Turning specifically to his oral evidence, it commenced with a joust about when the plaintiff first developed back pain. He was taken to extracts from the First Health Medical Centre and cross-examined about an entry of 20 March 2019, when he attended Dr Abdul Quddus for right shoulder pain and it was recorded “work involved heavy lifting”.[16] It was put to him that he made no mention at that attendance of any back pain, and he said that, by then he was back on painkillers, was working in the fridge section and that, at the time, thought the pain was just because of the cold temperature in the fridge.[17]
[16]Exhibit D3.
[17]T 7, L 20-25.
43It was suggested to him that, if, in fact, he had back pain from late 2018 that was causing issues in early 2019, it was something he would have mentioned to the doctor. He said the pain began in 2018 and it slowly, but surely, got worse and initially he did not think too much of it.[18]
[18]T 8, L 1-8.
44The plaintiff repeated, on several occasions, that when he went to the doctor in March 2019 he was on painkillers, and his shoulder pain, at that time, was a bigger problem.
45The plaintiff was cross-examined about his evidence in his first affidavit of developing back pain in late 2018 and reporting it to his manager. He said that evidence was accurate, and his manager’s name was a woman named Monisha.[19]
[19]T 8, L 24-30.
46Next, he was cross-examined about an incident at work on 5 November 2019, when he was driving a forklift and hit another person. He accepted that the result of that incident was that his employment was terminated. He accepted that he was angry about losing his job.[20]
[20]T 9, L 13.
47He was taken to the clinical records again, this time to an entry of 10 November 2019, created by Dr Raheel Rabbani, where it was recorded there was a complaint of lower back pain on and off radiating to the legs. It was suggested to him that, on 10 November 2019, he did not tell Dr Rabbani he had back pain from work, and he said, “I believe I did. That’s the reason I went to the doctor”.[21]
[21]T 9, L 29-31.
48Next, he was cross-examined about an entry of 18 November 2019, when he returned to Dr Rabbani, who then recorded that he had seen a lawyer and attended requesting a WorkCover certificate. It was put to him that it was only after he saw lawyers that he told his GP about the back condition being caused by work and he said, “[w]ell, I did go because of my lower back but that’s the only reason why I went, because I had pain in my lower back”.[22]
[22]T 10, L 5-11.
49There was then the following exchange about seeing lawyers, the termination of his employment and telling his GP about back pain:
Q:“What I am suggesting to you is that you didn't tell your doctor that you had lower back pain caused by your work until after you saw lawyers. What do you say about that?---
A:No. Well, I already had back pain and I was seeing my doctor because of the back pain, which is why I eventually went and seen my lawyer.
Q:Before your employment was terminated you had never seen a doctor for any back pain, had you?---
A:I don't remember but I to know that I did go in 2019 because of my lower back pain.
Q:If the records show that the first time you went in 2019 for your lower back pain was 10 November 2019, do you accept that those records are correct?---
A:I did go in 2019 in Hampton Park to see Dr Rabbani because of my lower back. I can't recall the exact dates as to when I went.”[23]
[23]T 10, L 12-27.
[sic]
50The thrust of this part of the cross-examination was to suggest that the plaintiff’s back pain was unrelated to his employment, he only reported it to his doctor after his employment was terminated, and that the reporting or linking of any back problem to his employment was only after he had consulted lawyers.
51A couple of things can be said at this part of the cross-examination. First, there is no suggestion that his lawyers did anything improper or did anything other than provide appropriate legal advice. Second, in the context of the type of work that the plaintiff did, there is no suggestion of any other trigger or event that would explain the onset of lower back pain. To the extent that the defendant intimated that the plaintiff had constructed a story of work-related back pain because his employment had been terminated, I do not accept that as a conclusion that is open on the evidence. Therefore, notwithstanding some vagueness or unreliability in his evidence, I accept that his onset of back pain was causally related to his employment. I accept that he worked on for some time with back pain, consistent with an unskilled man engaged in the only real job he has had in Australia.
52Returning to the cross-examination, the plaintiff was then asked questions about his level of pain. He agreed that he had constant back pain, that it was severe every day and the painkillers did help to minimise it, until the effect of those wore off. He said it was correct that, because of his back pain, he had difficulty standing and walking and, in fact, he said, “[c]orrect, and I have trouble getting out of bed. I sometimes need help”.[24]
[24]T 11, L 3-5.
53The plaintiff was next cross-examined about the history given to medical practitioners regarding his ongoing restrictions. As an example, the history provided to Dr Sean Low was put to him, which he said was correct, including that he can stand and walk for up to twenty minutes, but after twenty minutes of standing or walking, he needed to rest. He said, “between 15 to 20 minutes. I try and push to 20 minutes”.[25]
[25]T 11, L 21-22.
54The plaintiff said he sometimes walked with a limp when the pain is severe. He confirmed his pain was severe every day, and when it was severe, he would try and avoid walking, but if he had to walk, he took frequent breaks and sometimes walked with a limp. In fact, he said, “I will take a break and lean my weight on maybe a tree or something”.[26]
[26]T 12, L 7-9.
55He confirmed his affidavit evidence of difficulty with bending. He said, “I have pain. I can do it but I have pain”.[27] He said, sometimes after picking up something from the ground, he would sort of stretch until the pain decreased and that when he picked something up, he did have pain. He said he could squat, but with pain.[28] He said he could squat for a minute.[29] He said, sometimes after squatting, he can get himself up, or sometimes he will use the ground, or something to hold onto.
[27]T 12, L 13-14.
[28]T 12, L 21-23.
[29]T 13, L 3.
56He was cross-examined about his affidavit evidence of difficulty reaching. He said he did have difficulty reaching forward because of back pain.[30] He said, getting in and out of a car caused difficulty, “because getting in I have to bend a little and that obviously causes pain”.[31]
[30]T 13, L 23.
[31]T 13, L 28-29.
57At this stage of the cross-examination, the video surveillance was played, and the plaintiff was questioned about it. Much of that cross-examination was to highlight what he was shown to do on the video, which I consider ultimately to be an assessment for the Court to make.
58Overall, the plaintiff agreed that he was depicted in the video surveillance and that he was able to undertake the activities shown in it. He said he could not recall whether, on 22 April 2023, he was in pain at the time. It was suggested he was not seen to grimace in pain, yet when he goes to the doctors he did grimace. He said, “[s]ometimes the pain relief helps, sometimes it doesn’t”.[32] It was pointed out that he had grimaced in pain upon entering the witness box and he said, “I do have pain. Yes”.[33]
[32]T 21, L 24-25.
[33]T 21, L 24-25.
59Regarding the video in which he was shown to squat, it was put to him that, if his back pain was as severe as he had told the Court and doctors, then he would be unable to squat, as shown, three times in a row, holding each squat for thirty seconds or more, without any restriction. He said, “[w]ell, that’s a form of me resting, when I’m squatting down I am resting my back”.[34]
[34]T 22, 26-27.
60In case the defendant’s attack on him was unclear, it was then put to him whether he had exaggerated to the Court the extent of his back pain. He said he was not exaggerating, he did have pain, that he had problems, but did his best.[35]
[35]T 23, L 6-12.
61The cross-examination continued with a discussion about the plaintiff’s presentation to Dr David Barton in May 2023. He was asked about presenting and grimacing to Dr Barton and yet he was not grimacing in the video. He said, “I have no other choice. The doctor said I have to live with this pain so I am living with it. Should I kill myself? What should I do?”.[36]
[36]T 26, L 1-4.
62He was then cross-examined about whether it was the pain in his lower back or his depression that was stopping him from working. He said it was both.[37]
[37]T 26, L 15-31.
63He was cross-examined about a job he had after leaving the defendant, which only lasted one or two weeks. He was then cross-examined about jobs identified in a vocational assessment. He said he could not now work as a forklift driver because he had pain.[38] He said he could not work as a light packer because he cannot tolerate the pain. It was put that he could work in those roles, but had, instead, chosen not to work, and he disagreed with that.[39]
[38]T 27, L 28-29.
[39]T 28.
Conclusions regarding the plaintiff’s evidence
64The plaintiff gave evidence through a professional interpreter. Broadly, I consider that he did his best to answer questions asked of him in the witness box. But, having said that, I consider that he did attempt to explain parts of the video surveillance in a way that I do not accept as accurate. During the cross-examination about the video surveillance and what he had said to doctors about his pain, he presented as more of an advocate for his own cause, rather than a reliable witness.
65An example of where he was unreliable is his explanation during the oral evidence of managing back pain by putting his hand in the vicinity of his hip as shown in the video. Further, I do not accept his oral evidence that he chose to squat as a way of managing back pain. I consider what was seen when he squatted in the video to be inconsistent with how he presented to medical practitioners.
66Overall, bearing in mind that pain is largely a subjective complaint and difficult to assess objectively, there was no obvious evidence in the video that he was in pain or in any way restricted for the activity he was shown to engage in.
67Therefore, I consider that the video surveillance and some of his oral evidence, in the context of the other evidence, suggests he exaggerated the true extent of his back pain and impairment consequences. Whether that was a deliberate embellishment, a product of his background, or because of his co-morbid psychiatric response is hard to say and does not matter. What matters is that aspects of his evidence are unreliable.
68I consider the picture painted in his first affidavit to be inconsistent with the video surveillance and some of the medical evidence. I consider that the evidence in his second and third affidavits is more reliable and closer to the true story.
69Broadly, the video surveillance confirmed what he said in his third affidavit about trying to live a normal life as best he can. I consider that his pain levels are not such that he cannot try and live a normal life and go shopping, drive a car, bend, reach, lift, squat and carry light items as necessary.
70Crucially, the video surveillance did not demonstrate him to undertake any activity that he had denied being capable of undertaking. There was nothing in the video that could be described as a heavy activity.
71Seen in the context of the extensive surveillance and the video footage that the defendant made a forensic decision not to tender, I consider that the video surveillance did not sink his case. It showed that he can get on with his life when necessary. But it did not prove that he could undertake the activity shown in the video for prolonged periods, or consecutive days. In that sense, it supported what he said in his second and third affidavits.
72In forming a concluded opinion about the issues in this proceeding, I consider that some of the plaintiff’s evidence was unreliable. Therefore, I am not prepared to accept his uncorroborated and subjective complains of pain and impairment consequences without carefully considering the objective evidence.
73Having said that, one further matter should be tied off on at this point, namely the lack of any real attack on the plaintiff’s affidavit evidence about his limited literacy, numeracy, or computer skills. The defendant did not suggest in cross-examination that the plaintiff had the necessary skills, training, or education for anything other than manual work. So that part of the evidence I am more comfortable to accept as accurate.
Hawa Razaee
74Ms Hawa Razaee is the plaintiff’s wife. The plaintiff relied on and tendered an affidavit sworn by her on 11 September 2023.[40]
[40] PACB 102.
75In her affidavit, Ms Razaee gave general evidence of her knowledge of her husband’s back injury and how it impacted him. She described her husband as now having problems with longer walking, sitting and standing. She said he had greater difficulty with bending, leaning, reaching, twisting, lifting, carrying, pushing and pulling. She said he had a reduced capacity to help with the housework and was no longer as active with their children. She described her husband as very depressed and anxious about his situation.
76The evidence from Ms Razaee should be considered in the context of the factual conclusions about the plaintiff’s evidence. But generally, her evidence is consistent with the objective evidence of incapacity and the tendered video surveillance.
Physical injury – medical evidence tendered by the plaintiff
77Turning specifically to the relevant evidence of physical injury as relied on by the plaintiff, and in the order in his Court book.
Dr Hazem Akil
78Dr Akil is a neurosurgeon to whom the plaintiff was referred by Dr Rabbani. Dr Akil saw the plaintiff on 25 June 2020 and reported back to Dr Rabbani,[41] having had the benefit of a CT scan that had already been performed of the plaintiff’s spine, to say that the plaintiff’s complaints were compatible with aggravation of lumbar spondylosis, but that he required an MRI scan of his lumbar spine. Dr Akil said the symptoms and condition were compatible with the injuries that he described at work in 2018 and 2019.[42]
[41]PACB 33.
[42]PACB 34.
79The plaintiff then returned to Dr Akil on 15 October 2020, after he had undergone an MRI scan. Dr Akil wrote back to Dr Rabbani and said that, because of the MRI scan findings, he suggested a referral to a pain specialist, but that he was still of the opinion this was an aggravation caused by his work injury and he had no plan to see the plaintiff again.[43]
[43]PACB 35.
80Dr Akil then provided a report to the plaintiff’s solicitors dated 13 October 2020.[44] In that report, he repeated effectively what he had said to Dr Rabbani, namely that the diagnosis was aggravation of lumbar spondylosis and that the stated mechanism of injury at work was compatible with the current symptoms and condition. He noted that he had referred the plaintiff to Dr Robert Gassin, a pain specialist. He described the prognosis as guarded and set out the restrictions that he considered appropriate because of the plaintiff’s “significant symptoms”. He described the plaintiff complaining of constant lower back pain, walking with an antalgic gait. He said the plaintiff would not be able to do any lifting, repetitive bending, pulling or pushing, but that he had not otherwise assessed the plaintiff for the impact on his social, domestic and recreational activities.[45]
[44]PACB 36.
[45]PACB 38.
Dr Robert Gassin
81As mentioned, Dr Akil referred the plaintiff to Dr Gassin, a musculoskeletal and interventional pain management physician.
82Dr Gassin first reported by a letter to Dr Akil dated 3 March 2021.[46] He recorded the plaintiff’s complaint of constant pain in the lower back, aggravated by sitting and standing for more than five to ten minutes. Dr Gassin recorded a very limited range of lumbar spine extension due to central lower back pain and moderate loss of lumbar spine flexion again. He also recorded central lower back pain on straight leg raising and that the plaintiff was tender to palpation of the lower back. He described neurological examination as essentially no neurological loss. He said he suspected that the plaintiff’s pain was most likely of lower lumbar discogenic origin and had referred the plaintiff to Mr Justin Moar, a physiotherapist, and had planned to review the plaintiff in three months. He said, if symptoms remained unchanged, then bilateral L4-L5 facet joint diagnostic blocks with a view to radio frequency neurotomy would be considered.
[46]PACB 40.
83Dr Gassin wrote again to Dr Akil, on 12 May 2021,[47] after reviewing the plaintiff. He described arranging an updated scan of the plaintiff’s back. He recorded his suggestion that the plaintiff remained on his then current pain medication, which included Norgesic and Tramadol.[48]
[47]PACB 41.
[48]Ibid.
84Then, on 2 June 2021, Dr Gassin wrote again to Dr Akil.[49] This time he noted a scan of the lumbar spine had not revealed any specific pain source. He described his suggestion to persevere with exercise-based physiotherapy and also under the care of a psychologist.
[49]PACB 42.
85By 18 August 2021, Dr Gassin was reporting to Dr Akil that the plaintiff’s lower back pain remained unchanged and that the plaintiff had been approved for a multidisciplinary pain clinic.[50]
[50]PACB 43.
86On 18 November 2021, Dr Gassin wrote again to Dr Akil, in which he recorded that the plaintiff had recently been assessed by a psychiatrist, Dr Muhammad Riaz. Pain medication continued to be Tramadol, Celebrex and Norgesic.[51]
[51]PACB 44.
87On 12 October 2022, Dr Gassin wrote to Centrelink and described extensive treatment in the form of medications, physiotherapy, psychological and psychiatric support, as well as the plaintiff having attended a pain management program. He said that despite those treatments the plaintiff remained in significant pain and “highly disabled”.[52]
[52]PACB 45.
88Dr Gassin then reported to Dr Shahroze Khan at the Broad Oak Medical, Dental and Specialist Centre on 18 May 2023,[53] after a referral from Dr Khan. Dr Gassin said that the plaintiff had constant back pain, often worse first thing in the morning and increased with prolonged sitting, standing and walking more than a few hundred metres. He noted ongoing medication to include Targin and that the plaintiff had completed a multidisciplinary pain management program which was said to be of no benefit. Dr Gassin thought it was worthwhile to repeat the MRI scan.[54]
[53]PACB 46.
[54]Ibid.
89Dr Gassin then provided a comprehensive report to the plaintiff’s solicitors dated 20 August 2023.[55] He set out his examination findings, history and progress over treatment. He noted that he had last reviewed the plaintiff on 21 June 2023 at which time he recommended that the plaintiff continue with physiotherapy with Mr Moar and that he “again encouraged him to remain active but pace himself”.[56] Dr Gassin then reported that the plaintiff, in his opinion, had suffered injury to the lower back, most likely the L4-L5 spinal segment. He said the plaintiff suffered from ongoing back pain radiating down the legs and that treatment requirements would include the use of medication, as well as ongoing exercise-based physiotherapy. He also noted a psychological response. He said the plaintiff was likely to suffer from moderate to severe ongoing lower back pain and associated symptoms, with associated moderate disability for the foreseeable future.[57]
[55]PACB 47.
[56]PACB 49.
[57]Ibid.
90Dr Gassin was asked to answer specific questions about employment activities. He said:
“5 Whether as a consequence of Mir Gul Hassan’s injuries he is likely to be precluded or restricted in relation to employment activities involving
a) pushing, pulling or lifting
a) repetitive pushing, pulling or lifting
b) overhead activities
c) gripping, holding, carrying
d) typing, writing, use of tools
e) any other physical functions or motions
and if so:
i) To what extent; and,
ii) Whether the incapacity will continue for the foreseeable future.
In my opinion, as a consequence of his low back injury, [the plaintiff] is likely to be precluded or severely restricted in relation to employment or activities involving pushing, pulling, lifting, repetitive pushing, pulling or lifting and carrying as well as activities which include sitting or standing for more than 15 minutes., to a significant extent, for the foreseeable future.”[58]
[sic]
[58]PACB 49.
91Overall, Dr Gassin said the plaintiff had no capacity for work. He said he expected that incapacity to be permanent. He then said:
“In my opinion, [the plaintiff] is precluded or severely restricted in relation to social, domestic, and or recreational activities which involve pushing, pulling, lifting, repetitive pushing, pulling, lifting, carrying as well as activities which include sitting or standing for more than 15 minutes. I expect these restrictions to be of a moderate to severe degree and to last over the foreseeable future.”[59]
[59]PACB 50.
92Next, Dr Gassin wrote back to Dr Khan on 28 September 2023.[60] He recorded there had been little change in MRI scans between 2020 and 2023. By then, he had discussed the role of a right S1 transforaminal epidural injection, which the plaintiff was not keen to consider. Dr Gassin said he should persevere with physiotherapy and that he had otherwise suggested he try to remain active and lead his life as normally as possible, despite ongoing symptoms.[61]
[60]PACB 118.
[61]Ibid.
93Finally, Dr Gassin wrote to Dr Khan on 8 February 2024.[62] He described the plaintiff’s condition as essentially unchanged. He noted an upcoming court case. He recorded the plaintiff’s complaints of pain across his lower back and both legs, constant and interfering with his quality of life significantly, including sleep. Medication was noted to remain as Quetiapine, Targin and Duloxetine. Dr Gassin also recorded that more recently the plaintiff had developed pain and crepitus in both knees, likely to be unrelated to his WorkCover condition. He said, at that stage, he had little to offer in terms of specific treatment.[63]
[62]PACB 119.
[63]Ibid.
Mr Justin Moar
94On 11 June 2021, the physiotherapist, Mr Justin Moar, wrote a “To Whom It May Concern” letter describing the plaintiff’s functional tolerances as very limited. He said the plaintiff was then unable to bend without aggravating his back pain and that the plaintiff had very limited to no capacity for work.[64]
[64]PACB 51.
95Mr Moar wrote to Dr Gassin on 20 August 2021, and described how the plaintiff had completed ten sessions of physiotherapy and further funding had been sought both for physiotherapy and for the pain management program.[65]
[65]PACB 52.
96Mr Moar wrote a further “To Whom It May Concern” letter on 21 December 2021. He described the plaintiff suffering low back pain related to his lumbar disc injury and continuing to experience high levels of pain. He described very limited functional tolerances. He repeated his opinion about work capacity. He noted that COVID had delayed the pain management program.[66]
[66]PACB 53
97Mr Moar repeated his earlier opinions in further “To Whom It May Concern” letters dated 17 February 2022,[67] 18 March 2022[68] and 29 April 2022.[69]
[67]PACB 54.
[68]PACB 55.
[69]PACB 56.
98The last word from Mr Moar is contained in a letter he wrote on 7 October 2022, noting the plaintiff had been through the pain management program. He said the plaintiff’s condition was permanent.[70]
[70]PACB 57.
Dr Raheel Rabbani
99Dr Rabbani provided a medical certificate on 30 April 2022.[71] He said the plaintiff was suffering a work-related lower back injury since 2019 and had been experiencing a high level of lower back pain aggravated with prolonged sitting and standing, and that the plaintiff had been under specialist pain management and psychiatric treatment. He described the pain as disabling and the plaintiff’s mental health as having been affected, and that he was unable to work.
[71]PACB 93.
Dr Shahroze Khan
100Dr Khan provided a report dated 30 August 2023,[72] in which he recorded that the plaintiff had been under his care since March 2023. In that report, Dr Khan described the plaintiff as unfit for any work due to the severity of his back pain and that his mental health capacity was very restricted. He said the plaintiff’s sitting and standing capacity was very limited and his concentration and attention was affected. He described severe pain and that the plaintiff had a lack of motivation, did not like to meet anyone and was then not participating in any leisure activities.[73]
[72]PACB 94.
[73]PACB 95.
101Dr Khan reported again on 14 November 2023.[74] He repeated the previous history. He repeated that scans of the plaintiff’s low back showed multi-level lumbosacral spine disc disease. He described that the plaintiff “was unable to bend/squat/kneel. He has been unable to sit/stand/walk/drive for more than 20 minutes at the stretch.”[75] He said the plaintiff had no capacity to drive a forklift or work as a cleaner, to do process work, or work as a packer or production clerk, due to the physical restrictions.
[74]PACB 125.
[75]Ibid.
102Dr Khan also went on to describe the plaintiff’s psychological symptoms, which he also said precluded the plaintiff from work. Overall, he described the plaintiff as having very limited physical and mental capacity, unlikely to change in the future.[76]
[76]PACB 126.
Plaintiff’s medico-legal reports
Mr Raf Asaid
103Mr Asaid is an orthopaedic surgeon who examined the plaintiff at the request of his solicitors and provided a report dated 5 December 2023.[77]
[77]PACB 127.
104Mr Asaid obtained a history of the plaintiff’s work, describing it as quite physical and, as to the onset of low back pain, he obtained a history of the plaintiff’s overall condition continuing to deteriorate and of him continuing to experience severe lower back pain.[78]
[78]PACB 128.
105Mr Asaid recorded the plaintiff experiencing pain across the entire lower back, radiating down both legs, with numbness and tingling in the legs, worse on the right side. He recorded that the plaintiff had difficulty sitting or standing for extended periods and he is unable to perform any physical tasks or activity that involved bending, lifting or squatting. He recorded that the plaintiff can only walk 15 minutes before needing to rest. He also recorded that the plaintiff required assistance from his wife with showering and dressing, and that his wife had essentially become his carer.[79]
[79]PACB 129.
106Mr Asaid reviewed the available radiology and conducted a physical examination. He recorded a reduced lumbar spine range of motion and that both flexion and extension aggravated the plaintiff’s pain. He recorded the plaintiff having difficulty raising himself onto the examination table and that an assessment of lower limb power greatly aggravated his pain, although lower limb reflexes were normal.
107Mr Asaid diagnosed the aggravation of lumbar spondylosis but said the plaintiff had developed a chronic pain condition. He said on balance the employment to be a cause of the lower back injury. He described the low back injury as having an organic basis, as demonstrated by the results of the imaging performed.[80]
[80]PACB 130.
108Mr Asaid described the plaintiff as likely to be restricted in relation to more physical tasks and activities, including those that involve repetitive pushing, pulling, lifting, bending and squatting. He said the plaintiff did not have the capacity for his pre-injury duties. He said he did not consider that realistically the plaintiff had the capacity for suitable employment.[81]
[81]PACB 132.
Dr Sean Low
109Dr Low is a consultant occupational physician who examined the plaintiff at the request of his solicitors and provided a report dated 3 February 2024.[82]
[82]PACB 134.
110Dr Low reviewed the available radiology and then obtained a history from the plaintiff. That history included a description of the plaintiff developing back pain due to the nature of his work around 2018. He then recorded the subsequent treatment, including with Dr Akil and Dr Gassin, as well as psychological treatment.
111In respect to the current status, the plaintiff apparently told Dr Low that he had ongoing lower back pain ranging from 8-9/10. The pain was described in a distribution over the lumbar spine and affecting the right leg on a daily basis and the left side to a lesser extent. Dr Low then reported current physical tolerances as follows:
Sitting
Up to 20 minutes
Standing
Up to 20 minutes
Walking
Up to 20 minutes
Lifting/Reaching
Around 5 kg
Inclines/Stairs
Mr Hassan reported some difficulty ascending and descending stairs and avoids them where he can.
Bending/Twisting
Mr Hassan reported ongoing difficulty with bending and twisting motions including attending to any footwear.
Healing/Squatting
Mr Hassan stated that he would be able to do this but would have significant difficulty getting up.
Driving
Limited to around 20 minutes.
112Dr Low also obtained a history that the plaintiff required assistance from his wife with dressing, but was able to independently toilet.
113On examination, Dr Low noted that forward flexion and rotation was limited to 25 per cent of normal and there were minimal range of motion through the planes of lumbar extension. He was observed to walk with a slight limp and was able to squat to 50 per cent of normal.[83]
[83]PACB 139.
114Dr Low made a diagnosis of aggravation of lumbar spondylosis with lower limb radicular symptoms. He described that as consistent with performing manual duties around 2018.
115Dr Low said there was evidence of organic pathology when referred to the radiology. In respect to restrictions from the back injury, he said:
“Secondary to his spinal injury, he would require ongoing physical restrictions in the foreseeable future as follows:
• Lifting restrictions of 5 kg.
• Avoidance of any bending/twisting of the spine.
• Sitting/standing and walking limited to 20 minutes with the ability to alternate posture as required.
• Avoidance of working with any heavy machinery or vibratory equipment.”[84]
[84]PACB 140.
116Dr Low then said it was unlikely that the plaintiff would return to his pre-injury role or similar duties in the foreseeable future. He said the plaintiff had ongoing physical symptoms requiring physical restrictions as outlined in his report.[85]
[85]PACB 141.
117In summary, Dr Low said he did not consider the plaintiff to be fit to return to work in any capacity in the foreseeable future and that included for work as a forklift driver, commercial cleaner, factory process worker, packer and production clerk.[86]
[86]PACB 142.
Defendant’s medico-legal reports
Dr David Vivian
118Dr Vivian examined the plaintiff at the request of the defendant and provided a report dated 18 December 2019.[87] That report is obviously now somewhat out of date. In any event, Dr Vivian obtained a history of the injury and conducted a physical examination. He had available the CT scan. He went on to diagnose a central disc prolapse at L4/5, causing some irritability including possibly the L4 and L5 nerve roots. He described the plaintiff as appearing extremely anxious about his condition and predicament.
[87]Defendant’s Court Book (“DCB”) 5.
119Dr Vivian then said:
“If it is true that he repetitively lifts a lot of boxes weighing 20 kgs or more, then it is likely that work has been a significant contributor to disc prolapse. Disc prolapse does occur in people who do no heavy work, but there is an increase prevalence in people who are exposed to vibration or do ‘hard’ work. Here there is no exposure to vibration. However, if he has lifted many heavy boxes each day then work is a factor.”[88]
[88]DCB 7.
120Dr Vivian then described the plaintiff as unfit for work.
Dr David Barton
121Dr Barton is a consultant occupational physician who examined the plaintiff and provided a report to the defendant dated 11 May 2023.[89]
[89]DCB 9.
122Pausing, all the medico-legal opinions discussed so far were obtained with the use of a professional interpreter. An interpreter was arranged for the examination with Dr Barton but was not used because the plaintiff arrived early for the appointment and, in Dr Barton’s words, he “was able to see him before the interpreter attended. His command of English was excellent and a full history had been obtained”.[90]
[90]Ibid.
123Therefore, in an examination conducted without an interpreter, Dr Barton obtained a history of the injury, the subsequent situation, ongoing complaints, and symptoms.
124Dr Barton considered the available radiology, but did not specifically discuss the radiology in his report, instead saying that it would not be repeated.[91] He went on to say that the investigations had failed to identify any particular finding of note, which I note is contrary to the medical opinions already set out.
[91]DCB 11.
125On clinical examination, Dr Barton said the plaintiff demonstrated a wide range of functional features, indicating a non-physical basis for his complaints. He then said that medically he could find little convincing evidence of any particular work-related injury that would fit with the history of symptoms described. He said in view of the functional features, his consideration was that there was no medical condition relevant to any claimed injury. He said he was not aware of any reason why the plaintiff would have any incapacity and he certainly had the capacity for suitable employment “if so motivated”.[92]
[92]DCB 12.
126Dr Barton provided a supplementary report dated 5 September 2023 after considering a vocational assessment report from Recovre dated 26 May 2023. He then expressed the opinion that the plaintiff had the capacity to work as a forklift driver, commercial cleaner, factory process worker, packer or production clerk. He said the plaintiff could work on a full-time and sustained basis if so motivated.[93]
[93]DCB 42.
Dr Simon Journeaux
127Dr Journeaux is a consultant trauma and orthopaedic surgeon who examined the plaintiff on 13 June 2023 and provided a report dated 6 July 2023.[94]
[94]DCB 23.
128Dr Journeaux was provided with the relevant radiology as well as reports from Mr Akil and Dr Gassin, amongst other material. He obtained a history from the plaintiff as to the onset of symptoms, the current symptomatology and the effect on the plaintiff.
129Dr Journeaux said that on clinical examination, the plaintiff looked well, but examination on gait was slow and deliberate. He recorded that examination of the thoracolumbar spine revealed tenderness to light touch over the lumbosacral area. He described active range of movement as significantly restricted and overt pressure and closing of the eyes and grimacing.[95]
[95]DCB 28.
130Dr Journeaux then comprehensively reviewed the material provided to him, for expressing his conclusion and answering specific questions.
131He said that the history of chronic low back pain appeared to emanate from an injury that occurred circa November 2019. He said the most likely work-related physical diagnosis was that of an aggravation of lumbar spondylosis. He noted the known psychiatric diagnosis and said the current presentation from the physical perspective demonstrated significant evidence of abnormal illness behaviour. He then said:
“It is my view that his presentation is subsumed by the presence of adverse psychosocial factors influencing presentation. His current presentation does not have a basis in purely physical pathology.”[96]
[96]DCB 34.
132In respect to specific questions, Dr Journeaux repeated the physical diagnosis as that of multi-level lumbar spondylosis. He said the plaintiff’s employment with the employer did materially contribute to the current condition. He said the employment tasks in and of themselves are more likely than not to cause an aggravation or acceleration of lumbar spondylosis “but note his presentation is subsumed by adverse psycho-social factors”.[97]
[97]DCB 35.
133Dr Journeaux then said that currently the plaintiff would not have the capacity to return to modified or alternate duties, that was “primarily due to the presence of adverse psychosocial factors”.[98]
[98]DCB 36.
134He then said that the Recovre vocational options, in his view, were perfectly reasonable, purely considering the physical pathology and that “it is my view that he would have the capacity to work at least on a part-time basis (up to 20 hours per week)”.[99]
[99]DCB 37.
Factual conclusions regarding physical injury
135The following is a summary of the factual conclusions I make about physical injury.
136First, having considered all the evidence, I am satisfied that the plaintiff developed low back pain in the course of his employment from late 2018 and into 2019.
137Second, the nature of the plaintiff’s work is causally related to the onset of back pain.
138Because of the physical nature of his work as a storeman and forklift driver, the plaintiff suffered an injury to his low back, in circumstances where there is no evidence of any pre-existing back problem, best described as the aggravation of lumbar spondylosis. I consider that diagnosis to be in keeping with the available radiology as interpreted by the treating practitioners. I reject Dr Barton’s opinion that effectively there was no physical injury because it is against the weight of the medical evidence.
139Third, the aggravation of lumbar spondylosis has continued to date and has continued to be productive of symptoms sufficient to require specialist assessment, conservative treatment and pain management, as well as the ongoing prescription of strong painkillers.
140Fourth, the assessment of the plaintiff’s ongoing impairment and impairment consequences is more difficult because of his unreliability and embellishment of symptoms.
141Fifth, considering the whole of the evidence, I consider that the plaintiff has ongoing low back pain that at times would interfere with heavy, or repetitive manual activity, but which is not a constant 8-9/10 and is not constantly severe and disabling as the plaintiff had suggested in some of his evidence and when attending medical examinations.
142Sixth, the unreliability of the plaintiff is relevant but is not at a level that destroys his case or destroys the objective medical evidence. Part of the defendant’s credit attack would require, at the least, a tacit finding that the plaintiff’s whole claim for a back injury is a construct. That would ascribe to him a level of sophistication and a desire to deceive that I do not believe is made out on the evidence. It would also involve a rejection, effectively, of all the evidence from treating practitioners. Again, I am not prepared to do that.
143Seventh, I conclude that, after injury, the plaintiff has what might be crudely called a “light work back”. In that regard, broadly I accept the restrictions from the back injury, as described by his treating general practitioner, Dr Khan, as unable to sit/stand/walk or drive for more than 20 minutes at a stretch, to be consistent with a “light work back”.
144I have considered the evidence from the plaintiff’s wife, Ms Razaee. Her evidence is consistent with the fact that the plaintiff is trying to get on with his life as best he can. In that context, I accept he can engage in ordinary daily activity as necessary, such as that demonstrated on the tendered video surveillance. I consider that his second and third affidavits describe a level of symptoms and restrictions that are close to the truth.
145I am fortified in this conclusion by the opinion of Mr Asaid that the plaintiff was likely restricted for physical activity such as repetitive pushing, pulling, lifting bending or squatting. I also accept the opinions from Dr Low – albeit it expressed with a history I do not accept of the plaintiff requiring help from his wife to get dressed – of physical restrictions including an avoidance of bending and twisting and of restrictions for sitting and standing, before needing to alter his posture to get some relief.
146Further, Dr Journeaux also expressed opinions consistent with my conclusion of a “light work back”. True it is that he thought non-organic factors loomed large, but he did also say that, purely considering the physical pathology, he thought the plaintiff could work at least part-time up to 20 hours per week. In other words, he did not say this was an unrestricted back injury.
147To be clear, I do not consider the opinions from Dr Barton to accurately reflect the after-injury situation. He failed to adequately consider the objective evidence in the radiological investigations and in that setting, in my opinion, was incorrect to dismiss the possibility of an ongoing physical injury.
148Therefore, in summary, the plaintiff has a “light work back”. He has ongoing pain, made worse by prolonged or repetitive activity. But equally, the pain is at a level that allows him to undertake daily activity and get on with life as best he can. His back condition has not destroyed his ability to do things, but equally I consider it is not at a level where he is unrestricted.
Is a serious physical injury proven?
Pecuniary loss
149The next issue is whether the after injury “light work back” is “serious”.
150The plaintiff was a relatively low earner. The parties made submissions based on a without injury earning figure of $818 gross per week (x 52 weeks = $42,536 gross per annum).[100] The 60 per cent figure is then $490.80 gross per week (or $25,521.60 gross per annum).
[100]T 31, L 4-6.
151In final submission, the defendant highlighted the earnings figures in the reports from each of Recovre[101] and Flexi Personnel[102] to demonstrate how, if the plaintiff had an after injury earning capacity of 20 hours per week, to pick up on the opinion from Dr Journeaux, he would still fail to satisfy the statutory formula in the Act, as he would not have the requisite 40 per cent loss.[103]
[101] DCB 44.
[102] PACB 147.
[103] T 53, L 1-14.
152The issue of a possible residual capacity of 20 hours is ultimately a moot point. The plaintiff put his case on the basis that, after injury, he simply had no residual capacity for suitable employment[104] and the requisite loss was proven.
[104] T 3, L 23-24.
153Regarding the nature of his pre-injury employment, because of the factual conclusion expressed regarding physical injury, I conclude that the plaintiff is unfit to return to his pre-injury employment. I consider that he is unfit for work that requires repetitive, prolonged, or heavy lifting, bending, or twisting.
154I consider the inability to return to pre-injury employment to be a “very considerable” consequence to the plaintiff in the context of his background and work history, as he put it, of effectively only having one job in Australia.
155The issue then remains whether he has satisfied the statutory formula in the Act and has proven the requisite 40 percent loss.
156Obviously, if after injury he has no capacity for suitable employment, and if that situation is likely to continue indefinitely, then the statutory formula will have been satisfied.
157A consideration of the plaintiff’s capacity for suitable work cannot begin without looking at what he was suited for pre-injury, namely unskilled manual work and forklift driving. This is not a proceeding in which the defendant contended that there was further education or training available to the plaintiff to improve his employability. Rather, consistent with the credit attack, the defendant contended that, after injury, he retained a capacity for various jobs.
158The defendant relied on the video surveillance and Dr Barton’s opinions to contend that, after injury, there was really no impediment to a return to work, or at the least the plaintiff could undertake on a full-time basis the jobs identified in the Recovre report, including as a packer or as a forklift driver.
159The Recovre report set out forklift driver, cleaner, process worker and packer as suitable employment after injury. But a consideration of the evidence in that report reveals that all those jobs require an ability to sit or stand for prolonged periods, and to bend, twist, reach and lift items, including on a repetitive basis.
160I accept that the plaintiff would have the physical capacity to undertake aspects of the various jobs identified by Recovre. But it is another thing to conclude that he could undertake all of the aspects of those jobs for the purpose of reliably performing suitable employment.[105]
[105] Richter v Driscoll [2015] VSCA 142 at [76].
161In other words, it is one thing to be shown on an isolated occasion to reach and lift relatively light items in a retail store. It is another thing to conclude that he could undertake that activity for prolonged periods, or that it translates to a capacity to perform “suitable employment”.
162In that regard, there was no real challenge to the evidence that the plaintiff has limited literacy, numeracy, or computer skills. The defendant did not contend that the plaintiff had transferable skills after injury other than for light, manual work.
163I consider it highly relevant that the plaintiff continues to be prescribed strong painkilling medication by his general practitioner. There was no suggestion that the plaintiff does not use the medication and of course the general practitioner’s evidence was not challenged, save to the extent that the plaintiff was challenged. Rather, the defendant submitted that medication was just one factor and there was a question whether the doctors would prescribe it if the true level of disability was known to them, or as the defendant submitted, it all goes back to the submission about his credit.[106]
[106] T 44, L 3-14.
164However, I consider the need for such medication to be a signpost towards the true level of impairment, including for work. It is also a medication that may impact on his ability to work.
165Regardless, the sorts of activities set out in the Recovre report in the context of an unskilled man, with limited English language skills and an after injury light work back, means that realistically he is, in my opinion, unable to undertake “suitable employment”.
166As such, the plaintiff satisfies the statutory formula. Therefore, in accordance with Advanced Wire and Cable Pty Ltd v Abdulle,[107] the plaintiff is entitled to the leave of the Court to commence a proceeding for pecuniary loss and pain and suffering damages.
[107] [2009] VSCA 170.
Pain and suffering
167Dealing specifically with pain and suffering consequences, I conclude that the plaintiff has ongoing pain that requires the use of strong painkillers. I accept that it interferes with his ability to undertake heavy, repetitive daily activity, consistent with my conclusion regarding work capacity.
168But I do not accept that the pain is constantly severe. As the video surveillance demonstrates, he can drive, shop, bend, squat, reach and spend time with his family. The video is not supportive of a conclusion that he now requires help with dressing, or that he is severely disabled for domestic or social activity.
169The plaintiff’s evidence of the sorts of hobbies or interests he had before he injured his back is non-specific and broad. He does not describe any major hobby that has been interfered with. His evidence of impairment consequences must be considered in the context of the unreliability of some of his evidence about his pain levels and general restrictions.
170Overall, the plaintiff’s pain and restrictions are at a level that enable him to get on with life, as best he can. He still retains an ability to shop, socialise, spend time with his family, and engage in light daily activity.
171In a consideration of the evidence, the plaintiff has ongoing impairment consequences that might be capable of being described as “marked” or “significant” but fall below a level that can be described as “very considerable”.
172Therefore, in isolation, a “very considerable” pain and suffering consequence is not made out.
Medical evidence of psychiatric injury
173Turning to the remaining aspect of the proceeding, that is, the claim based on a psychiatric injury.
174The evidence from some of the treating practitioners has already been set out and I do not propose to repeat it. Dr Gassin noted a psychological response, as did Dr Rabbani and Dr Shahroze Khan.
Dr Muhammed Riaz
175Dr Muhammed Riaz is a consultant psychiatrist to whom the plaintiff was referred, initially by Dr Rabbani. Dr Riaz’s evidence is contained to several letters written to treating general practitioners and also in reports prepared by him.
176Dr Riaz first assessed the plaintiff on 5 November 2021.[108] At that time, he diagnosed major depressive disorder and chronic lower back pain.
[108]PACB 58.
177Dealing with Dr Riaz’s evidence in a concise manner, in a report of 23 December 2022,[109] he repeated his diagnosis of major depressive disorder and said there was a relationship of the injury with the employment. He said the plaintiff had been injured at work causing lower back pain, and because of chronic pain had developed major depressive disorder. He recommended ongoing psychiatric review and psychologist reviews.
[109]PACB 77.
178By 1 November 2023, Dr Riaz was reporting to Dr Khan that the diagnosis was of major depressive disorder, but that the plaintiff presented in a stable mental state.[110] Reported symptoms included lowered mood, amotivation, lack of energy, difficulty in maintain sleep and difficulties in concentration. Dr Riaz had a history that the plaintiff had ongoing chronic pain causing significant disability with minimal movement and so considered the pain was serving as a perpetuating factor for the mental health symptoms.[111] The plaintiff was continuing to be described Quetiapine for his mental health conditions.
[110]PACB 121.
[111]Ibid.
179The last word from Dr Riaz is a letter to Dr Khan, dated 14 February 2024.[112] In that letter, he repeated his diagnosis and opinions. He noted the plaintiff was suffering increased anxiety about an upcoming court case. Dr Riaz said he could not see a positive prognosis in terms of returning to any form of work.
[112]PACB 123.
Ms Shagufta Riaz
180Ms Shagufta Riaz is a clinical psychologist to whom the plaintiff was referred by Dr Rabbani. She has also provided several reports/items of correspondence regarding the plaintiff.
181In a psychological report dated 25 April 2022,[113] she noted that she first saw the plaintiff at referral from Dr Rabbani on 19 May 2021. She set out a history of treatment by way of Cognitive Behavioural Therapy and counselling on a three-to-four-weekly basis and education about managing depression and the like.
[113]PACB 85.
182Next, in a report dated 4 June 2023,[114] Ms Riaz repeated the presenting history in a summary of her psychological assessment, and then expressed opinions, including that the plaintiff’s psychological health was stable but that he needed ongoing supportive counselling to consolidate the gains of therapy.[115]
[114]PACB 87.
[115]PACB 91.
183Ms Riaz said that the plaintiff did not have the capacity to return to manual work due to his continuing back pain and medication side effects. Insofar as she expressed that opinion, I am not sure it is within her expertise. She then went on to say that he did not have the psychological capacity to benefit from a literacy-based educational or skills program because of poor psychological health, limited literacy and language barrier, therefore she said it was highly likely that he would not be able to find and retain paid employment.[116]
[116]Ibid.
Medico-legal evidence of psychiatric injury
184It is notable, although not conclusive, that the plaintiff did not rely upon any medico-legal opinion in support of his claim for a serious psychiatric injury. He did ask Dr Low to express an opinion about work capacity/psychological injury, which Dr Low appropriately said was outside his area of expertise to comment on.[117]
[117]PACB 143.
185There may be occasions when the psychiatric injury is so obvious that there is no need for medico-legal opinion, but I do not consider this to be such a case.
186In that regard, the video surveillance is perhaps more damaging for this aspect of the proceeding. In the video surveillance, the plaintiff was seen to engage with his family and to be able to engage in a range of mundane daily activity, in a way that I consider to be inconsistent with a claim of a “severe” psychiatric condition.
Dr Dush Shan
187The medico-legal evidence of psychiatric injury is contained in a report of Dr Shan, consultant psychiatrist, dated 8 June 2023 and provided at the request of the defendant.[118] Dr Shan noted that, on his mental state examination, it was not evident that significant mental health symptoms were present. He therefore concluded that a diagnosis of major depressive disorder of a mild type was present. He said it could equally be described as a diagnosis of adjustment disorder.[119] But Dr Shan went on to express conclusions that there was presently no impact on capacity for work from the psychiatric perspective.[120]
[118]DCB 14.
[119]DCB 18.
[120]DCB 19.
Conclusion regarding psychiatric injury
188Having considered the evidence, I do not consider the plaintiff has made out a “very considerable” consequence from the claimed psychiatric injury, either from the pain and suffering consequences, or from pecuniary loss consequences. I accept that the plaintiff has required psychiatric and psychological treatment, as well as medication. But I consider that the treating practitioners have a less than accurate picture of the true level of any psychiatric impairment. I consider Dr Shan’s opinion to be balanced, fair and accurate. Based on it, the claim solely relying on a psychiatric injury must fail.
Conclusion
189Therefore, for the reasons expressed, I accept the plaintiff has an ongoing physical injury to the lower back which produces “very considerable” pecuniary loss consequences. Accordingly, leave is given to commence a proceeding for both pecuniary loss and pain and suffering damages. I do not consider that the plaintiff has demonstrated that, in isolation, he has a “very considerable” psychiatric injury.
190I shall hear from the parties as to consequential orders and orders for costs.
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