Husaini v VWA
[2024] VCC 32
•2 February 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-23-01199
| Jawad Husaini | Plaintiff |
| v | |
| Victorian WorkCover Authority | Defendant |
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JUDGE: | HIS HONOUR JUDGE GINNANE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 and 22 September 2023 | |
DATE OF JUDGMENT: | 2 February 2024 | |
CASE MAY BE CITED AS: | Husaini v VWA | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 32 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – pain and suffering – loss of earning capacity
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013 (Vic)
Cases Cited:Barwon Spinners v Podolak (2005) 14 VR 622; Dwyerv Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Humphries v Poljak [1992] 2 VR 129; HuntervTransport Accident Commission & Avalanche [2005] VSCA 1; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Meadows v LichmorePty Ltd [2013] VSCA 201; Sabo v George Weston Foods [2009] VSCA 242; Stijepic v One Force Group Australia Pty Ltd [2009] VSCA 181; Tatiara Wheat Co Pty Ltd v Kelso [2010] VSCA 12; TTB SMS Pty Ltd v Reading [2020] VSCA 203; Yirga-Denbu v Victorian WorkCover Authority [2018] VSCA 35
Judgment: Application granted
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J. Mighell KC Mr A. Kleiman | Zaparas Lawyers Pty Ltd |
| For the Defendant | Ms S. Manova | Hall & Wilcox |
HIS HONOUR:
Introduction
1Pursuant to Section 335 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (“the Act”) the Plaintiff seeks the grant of a Serious Injury Certificate to permit him to commence common law proceedings to recover damages for both pain and suffering and economic loss. The plaintiff was represented by Mr Mighell of Kings Counsel, together with Mr Kleiman of counsel. The defendant was represented by Ms Manova of counsel.
2The plaintiff is a young man. He was born in Afghanistan. He witnessed the murder of his parents by the Taliban when he was 13 years of age. A family member arranged for him to be smuggled into the UK. There he remained for about eight years on a visa. He did not benefit from any education in Afghanistan, and he obtained only a smattering in the UK, before he chose to enter the workforce. On the expiry of his visa he was returned to Afghanistan, but he was unable to locate any family and so he fled to Pakistan. He sought asylum in Australia in 2010, and subsequently entered the workforce performing manual labouring jobs such as bricklayer, construction worker and forklift driver.
3He commenced work with the defendant in about September or October 2019, working as a casual full-time meatworker. He deposed that his work involved slicing and boning meat and the work was heavy and repetitive. He described a conveyor belt that would bring a cow carcass to him. He said he was required to take out the fat and bones which required him to lift and turn the carcass. He estimated that some carcasses could weigh up to about 30 to 40kg. He said there was no rotation, and the work was very fast paced. He thought the employer had a team quota of 500 to 700 carcasses a day, which meant he would be processing about 70 to 75 parts of a cow carcasses a day.
4The plaintiff deposed that in about July 2020, he commenced to experience pain in his lower back while performing his work duties. Eventually his work ceased. He has not worked since save for a short and failed attempt at a return to work. He says he wants to work but does not believe he can.
5The defendant contested a good deal of the plaintiff’s account including the work he did and it attacked the plaintiff’s credit arguing that he should not be believed on important matters of evidence including the onset of and reporting of any physical injury. The defendant contended that whatever the plaintiff may now be suffering it is not organically based and he should be assessed as possessing a residual physical capacity to engage in suitable employment.
6Although some of the issues put in contest by the defendant are at face value understandable, on close analysis, and having listened to and observed the plaintiff closely, for the reasons that follow, I am satisfied that the plaintiff is entitled to the relief claimed in his application.
7The plaintiff’s literacy is a consideration relevant to an overall assessment of his capacity for suitable employment and is worth mentioning early on. In a Recovre report tendered by the defendant,[1] the author wrote that the plaintiff’s primary language is Hazaragi. Despite the plaintiff having attended many medico legal appointments with an interpreter, and I note, the use of the same in Court to facilitate his giving of evidence, the report’s author said, that the plaintiff was able to interact for much of the assessment in English, deferring to the interpreter only for complex questions. The author said that when speaking in English, the plaintiff’s speech was clear and he was readily understood, although possessing an accent. I would assess it as somewhat less.
[1]Exhibit D8.
8The author wrote how upon arrival in Australia, the plaintiff was offered the option to attend 510 hours of language and literacy training, however, he believed his spoken English was sufficiently adequate to enter the workforce and he chose to work. However, whilst in his various workplaces within Australia, the plaintiff said that he mostly spoke English with colleagues and he did not report any particular problems interacting with others in the community. Although able to speak his native language, he is illiterate in Hazaragi, and whilst he is able to complete basic personal details forms (name, address, email address and contact number) in English, he requires assistance for any written communications.
9In Court, the plaintiff on some occasions, responded clearly enough in spoken English to Ms Manova. The deferral to the interpreter was very beneficial in the overall conduct of the application, but I am satisfied that the plaintiff is able to understand and speak enough English for the job of a packer upon which the defendant placed some particular emphasis as suitable work for him to undertake. However, it is not the plaintiff’s lack of felicity with spoken English alone that precludes him undertaking some form of basic work.
The Particulars of Injury
10The Particulars of Injury filed in support of the application were:
Permanent serious impairment or loss of function of his spine, including but not limited to injury to the lumbar spine, multilevel facet joint arthrosis, aggravation of degenerative changes to the lumbar spine, pain and limitation of the lumbar spine, referred pain to the right lower limb;
and/or
permanent severe mental or permanent severe behavioural disturbance or disorder including but not limited to organically based chronic pain syndrome, depression and anxiety and adjustment disorder.[2]
[2] Particulars of Injury filed 14 August 2023.
11At the commencement of the hearing, Mr Mighell advised that the application would be limited to seeking the grant of a certificate for serious injury under paragraph (a) of the definition of serious injury and for loss of earnings.[3]
[3] Transcript (“T”) 21, Line (“L”) 10.
Relevant legal principles
12The Court must not give leave to commence common law proceedings unless it is satisfied, on the balance of probabilities, that the “injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in section 325(1) of the Act.[4]
[4] Section 335(5) of the Act.
13The definition of “serious injury” contained in section 325(1) of the Act reads:
“Serious injury” means –
(a) Permanent serious impairment or loss of a body function…
14To establish serious injury, the plaintiff must prove, on the balance of probabilities, that:
“the injury” suffered by him arose out of, or in the course of, or due to the nature of employment;[5]
[5] Section 327 of the Act; see also Barwon Spinners Pty Ltd & OrsvPodolak (2005) 14 VR 622 (“Barwon”).
“the injury” and resulting impairment must be “permanent” – that is, permanent in the sense that it is “likely to last for the foreseeable future”;[6]
the “consequences” of the impairment in relation to “pain and suffering” must be “serious” – that is, the impairment or loss of body function “when judged by comparison with other cases in the range of possible impairments … may be fairly described as being more than significant or marked, and as being at least very considerable”.[7]
[6] Barwon (2005) 14 VR 622, 638 [33].
[7] Section 325(2)(c) of the Act.
15The requirement to satisfy these elements is sometimes referred to as the “narrative test”.
16The question of whether an injury satisfies the narrative test is largely one of impression or value judgment.[8]
[8]See Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592, 628; see also Sabo v George Weston Foods [2009] VSCA 242, [67].
17In determining the “consequences” of the injury, the Court is required to consider the consequences to this plaintiff, viewed objectively, arising from the injury.
18In determining the application, the Court:
(a) must not take into account psychological or psychiatric consequences of “the injury” for the purposes of paragraph (a) of the definition of “serious injury” – these can only be taken into account for the purposes of paragraph (c) of the definition of “serious injury”;[9]
(b) must assess whether “the injury” is a “serious injury” as at the time the application is heard;[10]
(c) must give reasons that disclose the pathway of reasoning in dealing with the evidence and issues raised by the application.[11]
[9] Section 325(2)(h) of the Act.
[10] Section 325(2)(j) of the Act.
[11] See generally HuntervTransport Accident Commission & Avalanche [2005] VSCA 1, [23]-[26].
19In TTB SMS Pty Ltd v Reading,[12] Tate and T Forrest JJA, had occasion to emphasise the essential aspects to which consideration is to be given on a serious injury application in a pain and suffering case which are:
(a) serious injury means permanent serious impairment or loss of a body function;[13]
(b) an impairment shall not be held to be serious unless the pain and suffering consequence is, when judged by comparison with other cases in the range of possible impairments or losses of a body function, fairly described as being more than significant or marked, and as being at least very considerable;[14]
(c) In assessing the seriousness of the claimed impairment consequences, a Court is required to consider both the effects of the impairment and those aspects of the affected body function which remain unaffected.[15]
[12] [2020] VSCA 203.
[13] Section 325 of the Act.
[14]Section 325 of the Act. This formulation picked up the language in Humphries v Poljak [1992] 2 VR 129, which concerned similar provisions in the Transport Accident Act 1986.
[15]Dwyerv Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 (‘Dwyer’), [27] per Ashley JA; Stijepic v One Force Group Australia Pty Ltd [2009] VSCA 181, [44] per Ashley JA and Beach AJA; Tatiara Wheat Co Pty Ltd v Kelso [2010] VSCA 12, [77] per Ross AJA, quoting Dwyer [2008] VSCA 260, [27]).
Permanent loss of earnings
20In addition to his claim under paragraph (a) of the definition of serious injury, the plaintiff alleges that he has suffered a permanent loss of earning capacity of 40 per cent or more. When a plaintiff asserts he has suffered a serious injury by reference to a loss of earning capacity, the additional threshold he must show is that, at the date of the decision:
(a) he has sustained a loss of earning capacity of 40 per cent or more; and
(b) he will, after the date of the decision, continue permanently to have a loss of earning capacity which produces a financial loss of 40 per cent or more.
21In the event I am satisfied that the plaintiff does not possess a capacity for full-time employment in suitable employment, and that this will continue permanently, then he will have made good a claim for economic loss, so long as I am satisfied the consequences for him of such a loss are at least very considerable.
The documentary evidence
22The plaintiff relied on the following evidence:
(a) Two affidavits of the plaintiff dated 17 October 2022, and 18 September 2023;[16]
[16] Exhibit P1, Plaintiff’s Court Book (“PCB”) 6-16.
(b) Report of Dr Hazem Akil dated 5 January 2021;[17]
[17] Exhibit P2, PCB 17-18.
(c) Operation Record of Dr Meena Mittal dated 16 April 2021 - Bilateral L3/4, L4/5 and L5/S1 medial branch block;[18]
(d) Five reports of Dr Kilner Brasier dated 20 May 2021,[19] 21 October 2021;[20] 4 November 2021,[21] 27 January 2022,[22] and 25 August 2022;[23]
(e) Two reports of Dr Pouya Hafezi dated 2 February 2022,[24] and 7 October 2022;[25]
(f) Report of Dr Ali Kian Mehr dated 24 September 2022;[26]
(g) Report of Mr David Wyputa dated 10 October 2022;[27]
(h) Report of Dr Shahroze Khan dated 5 December 2022;[28]
(i) Report of Dr Meena Mittal dated 21 August 2023;[29]
(j) Worker’s Injury Claim Form dated 12 November 2020;[30]
(k) Report of Dr Sean Low dated 28 August 2023;[31] and
(l) Certificate of Capacity dated 14 September 2023 to 11 October 2023.[32]
[18] Exhibit P3, PCB 26.
[19] Exhibit P4, PCB 28-29
[20]Exhibit P5, PCB 46-47.
[21]Exhibit P6, PCB 51-52.
[22]Exhibit P7, PCB 55-56.
[23]Exhibit P13, PCB 106.
[24]Exhibit P8, PCB 57-58.
[25]Exhibit P10, PCB 93-95.
[26]Exhibit P9, PCB 86-92.
[27]Exhibit P11, PCB 96-103.
[28]Exhibit P12, PCB 104-105.
[29]Exhibit P14, PCB 109-116.
[30]Exhibit P15, PCB 142-145.
[31]Exhibit P16, PCB 123-134.
[32]Exhibit P17, PCB 148-150.
23The defendant relied on the following evidence:
(a) Clinical Attendances at Dandenong West Medical Centre;[33]
[33]Exhibit D1, Defendant’s Court Book (“DCB”) 7-34.
(b) Three Reports of Dr Umberto Boffa dated 30 November 2020, 19 July 2021 and 17 September 2021;[34]
[34]Exhibit D2, DCB 48-66.
(c) Report of Associate Professor Shashijt Varma dated 15 December 2022;[35]
[35]Exhibit D3, DCB 76-83.
(d) Report of Dr Clayton Thomas dated 21 December 2022;[36]
[36]Exhibit D4, DCB 84-92.
(e) Three Reports of Professor Peter Teddy dated 19 January 2023, 24 July 2023 and 21 August 2023;[37]
[37]Exhibit D5, DCB 93-101.
(f) Two reports of Dr Anthony Menz dated 31 January 2023, and 3 May 2023;[38]
(g) Report of Associate Professor George Mendelson dated 2 August 2023;[39]
(h) Recovre Vocational Assessment Report dated 30 January 2023;[40]
(i) Letter from the employer to the plaintiff regarding termination of employment dated 2 October 2020;[41]
(j) CCTV footage of boning and slicing duties at the defendant’s premises;[42]
(k) Affidavit of Luiz Dobre affirmed 20 September 2023;[43]
(l) Affidavit of Lino Magnano affirmed 20 September 2023 (redacted);[44]
(m) Surveillance footage dated 29 November 2022, 19 December 2022 and 2 March 2023;[45]
(n) Summary of taxation returns;[46] and
(o) Radiological reports.[47]
[38]Exhibit D6, DCB 102-115.
[39]Exhibit D7, DCB 116-146.
[40]Exhibit D8, DCB 147-174.
[41]Exhibit D9, DCB 189.
[42]Exhibit D10.
[43]Exhibit D11, DCB 192-198.
[44]Exhibit D12, DCB 199-205.
[45]Exhibit D13.
[46]Exhibit D14, DCB 206.
[47]Exhibit D15, DCB 135-141
24I have read and had regard to the lay and medical evidence relied on by the parties together with the affidavit evidence and the cross-examination of the plaintiff, as well as the final addresses of counsel.
The plaintiff’s affidavits
25The plaintiff made two affidavits dated 17 October 2022, and 18 September 2023.[48] In them, he detailed his difficult childhood in Afghanistan, including the murder of his parents when he was 13 years of age, and his travel to the United Kingdom where he remained until he was about 19 years, before being returned to Afghanistan. He recounted that he found refuge in Pakistan where he lived for eight months, prior to seeking and obtaining asylum in Australia in 2010.
[48] Exhibit P1, PCB 6-16.
26He arrived initially in Melbourne, before he moved to Rockhampton, and then to Wagga Wagga, with stints working at an abattoir. In Melbourne, he drove a forklift for three years at the Melbourne Market, before moving to Sydney where he again drove a forklift three and half years. In 2018, he returned to Melbourne and worked in construction and as a labourer.
27In 2018, he suffered depression due to the collapse in a relationship with his fiancée in Pakistan. He was also involved in litigation of some sort involving a co-worker, and he has received counselling from doctors at Dandenong West Medical Clinic.
The work and the onset of injury
28The plaintiff said he commenced employment with the defendant in about September or October 2019, working as a casual full-time meatworker. He said his work involved slicing and boning meat, work he described as heavy and repetitive. He deposed that in about July 2020 he commenced feeling pain in his lower back while performing his work duties. He said he worked on until 25 September 2020, hoping that the pain would get better. It did not, and so he reported his injury, and he said he was told by his supervisor to take a few days off. He said he was subsequently told he was no longer required.
Employment with the defendant
29In his second affidavit, the plaintiff clarified the circumstances of ceasing work with the defendant in September 2020. He said that he reported his injury to his employer on 25 September 2020, and explained that he was struggling with his work because of his back pain. He says he was told to go home and rest and was subsequently told that there was no work available. The plaintiff said he had seen a notice of termination from his employer, stating that he had not worked as a team with other slicers and which accounted for the termination of his employment.[49]
[49] Exhibit D9.
30In about October 2021, the plaintiff was provided with a return to work plan to perform light duties in the laundry area of his employer. He says that he tried this work for about two hours, but he was unable to handle it because of the severity of his low back pain.
Treatment
31The plaintiff deposed to the treatment he has received since his injury. He attended his general practitioner on 7 October 2020, who put in place various radiological investigations and referrals, including to neurosurgeon Dr Hazem Akil, as well as physiotherapy.
32The plaintiff said that by 5 January 2021, Dr Akil had suggested a referral to Dr Ali Mehr, a pain specialist. On 28 January 2021, the plaintiff commenced seeing Dr Mehr who arranged a SPECT scan of the lower back, as well as nerve conduction studies. Dr Mehr referred the plaintiff for medial branch blocks, which Dr Meena Mittal performed on 16 April 2021.
33Dr Mehr also referred the plaintiff to Dr Kilner Brasier, an occupational physician, whom he commenced seeing on 20 May 2021.
34On 21 July 2021, the plaintiff commenced attending a psychiatrist, Dr Zarrar Chowdary.
35Dr Mehr referred the plaintiff to a psychiatrist, Dr Ehsan Rahimikia, whom he first consulted on 25 October 2021 and who prescribed antidepressants, which the plaintiff took for only a month because he said they were not of much help.
36In October 2021, the plaintiff commenced under the care of a different general practitioner, Dr Raheel Rabbani, who referred him to a rehabilitation physician, Dr Pouya Hafezi, whom the plaintiff commenced seeing in February 2022. Dr Hafezi organised a physiotherapy program which the plaintiff attended until the end of July 2022. The plaintiff also attended a psychologist, Mitra Amin.
37In June 2022, because Dr Rabbani moved location, the plaintiff commenced seeing Dr Shahroze Khan.
38The plaintiff completed a pain management program with Advance Healthcare in July 2022.
Consequences of injury
39The plaintiff complains of constant low back pain, with the level of pain fluctuating although he said it can improve with medication, that allows him to sit and walk for longer periods of time than without him taking it. He said that if he goes for a walk he usually takes Norflex beforehand. He said that he ordinarily will walk for about 10 to 12 minutes, before he needs to rest. He said that the pain he feels is usually in the right side of his low back, and travels down the right leg to the top of his toes. Sometimes his right leg is difficult to move, because of pain. His pain is worsened by cold weather. After 10 or 15 minutes of standing or sitting, his pain is worse and he will need to change position.
40In his second affidavit dated 18 September 2023, the plaintiff deposed that his back pain “has remained more or less the same” since swearing his first affidavit on 17 October 2022.[50] He deposed that he continues to be “significantly restricted” because of his back injury.[51] He said that if required to walk longer than 15 minutes, he has to stop for a rest, although there may be occasions when he can walk for a longer period of time. He said that remaining seated for 20 minutes can trigger increased pain.
[50]Exhibit P1, PCB 13, paragraph 4.
[51] Exhibit P1, PCB 14, paragraph 5.
41The plaintiff says he tries to limit his driving to local areas.
42The plaintiff says that his sleep is broken by his low back pain. He will usually sleep three to four hours at a time, although on a good night he might sleep for six hours continuously.
43The plaintiff said he avoids bending and twisting his back, and he sits on a chair to put on socks and shoes.
44The plaintiff said that standing in the shower for longer than a few minutes seems to increase his low back pain, although he also said that hot water helps with pain and stiffness. His personal toileting is difficult and it aggravates his low back pain.
45He has erectile and sexual dysfunction.
46Prior to his injury, the plaintiff said he would clean his house and do “heavy shopping.”[52] He enjoyed cooking most days, but now he eats out most of the time. He no longer does heavy shopping, and instead buys a few small items at a time.
[52] Exhibit P1, PCB 11, paragraph 34.
47He said that the house cleaning is performed by his housemates.
48Before his injury, he enjoyed “going for long walks to the beach or to the city, site [sic] seeing and camping.”[53] He said that he does not go out as often due to his low back pain, and when he does go out, it will usually be for one or two hours as opposed to an entire day.
[53] Exhibit P1, PCB 11, paragraph 35.
49The plaintiff explained that prior to his injury, he enjoyed travelling and drove to Sydney and Adelaide, perhaps once a year, but doubts he could do this nowadays as he cannot sit in a car for long periods of time. He said that prior to his injury, he tried to go to Pakistan every few years, but now worries about his ability to travel overseas and at present, does not think he could manage it.
50The plaintiff said that he is “anxious all the time,” and worried about his future.[54] He feels “useless and hopeless.”[55] He says that he is irritable most of the time, and his memory and concentration are poor.
[54] Exhibit P1, PCB 12, paragraph 37.
[55] Exhibit P1, PCB 12, paragraph 37.
51The plaintiff said that in 2022, he went to the MCG to watch India play Pakistan at cricket. He said that although he enjoyed the experience, by the end of the match, his back was in a lot of pain after having walked to the ground, and sitting and standing during the course of the match.
Current treatment
52The plaintiff’s current treatment consists of attending Dr Khan once or twice a month, mostly for certificates of capacity and the prescribing of medication. He continues to be prescribed Norflex and he takes 100 mg twice a day for pain, and Lyrica of which he takes 150 mg between one to two tablets a day depending on his pain levels.[56]
[56] Exhibit P1, PCB 10, paragraph 26.
53The plaintiff deposed that he no longer attends hydrotherapy, as the chlorine irritated his skin.[57] In his first affidavit he deposed that he had been having hydrotherapy three to six times a week.[58]
[57] Exhibit P1, PCB 15, paragraph 13.
[58] Exhibit P1, PCB 10, paragraph 23.
54He attends weekly physiotherapy sessions with David Wyputa at Dandenong West Medical Centre, which he thinks helps him manage his pain but does not “make it go away completely.”[59]
[59] Exhibit P1, PCB 15, paragraph 13.
Capacity for employment
55The plaintiff speaks Dari, Hazargi, Hindi and Urdu. He said he has managed to attain some basic English skills. He remains unable to read and write English.
56The plaintiff deposed that he would be willing to try any job that permitted him to get back to work, however, he has no idea of any job that he would be able to perform on a consistent and regular basis because of the unpredictable nature of his symptoms, and his significantly restricted tolerances for sitting, standing and walking. He believes it would be difficult for him to perform sedentary jobs. Moreover, he said that he has always worked in manual handling, and he pointed to his lack of education as a further inhibiting factor in obtaining employment.
Plaintiff medical evidence
Dr Shahroze Khan
57Dr Khan is the plaintiff’s treating general practitioner. He provided a report to the plaintiff’s solicitor on 5 December 2022. He explained that the plaintiff first attended on him for examination on 28 June 2022, because his previous GP had “moved out of town.”[60]
[60]Exhibit P12, PCB 104.
58Dr Khan described the plaintiff as presenting with “restricted and painful movement of his back.” The plaintiff’s “sitting/standing and walking capacity is limited to 20-30 mins. He is unable to bend/squat or kneel. He is unable to push/pull more than 2-3 kgs. He had been under care of a pain management specialist and has completed a pain management program as well.”[61]
[61]Exhibit P12, PCB 104.
59Dr Khan said he thought the plaintiff had “exhausted most treatment options and it is unlikely that his symptoms will improve.” He assessed the plaintiff as “totally unfit for his pre-injury duties now,” and as far as his future prospects were concerned, Dr Khan said the plaintiff was unlikely to work in modified duties, as his pain was likely to remain unchanged.[62]
[62]Exhibit P12, PCB 105.
60At the date of the hearing of the application, Dr Khan continued to certify the plaintiff with no capacity for employment.[63]
[63]Exhibit P17, PCB 149.
Dr Hazem Akil
61The plaintiff was referred to neurosurgeon, Dr Akil by his then GP Dr Qasim Hamimi. The plaintiff attended Dr Akil for review on 5 January 2021.
62Dr Akil reported that obtaining a past medical history from the plaintiff was “challenging.” He was wearing a lumbar brace, and “very reluctant to do any flexion or extension movements of his lumbar spine.”[64]
[64] Exhibit P2, PCB 17.
63Dr Akil noted that the plaintiff’s MRI, other than revealing evidence of facet joint neuropathy, did not show any neural compression. He considered that the “mainstay of treatment in his case will be nonsurgical,” and he recommend a referral to Dr Ali Kian Mehr.[65]
[65] Exhibit P2, PCB 17.
Dr Meena Mittal
64Dr Mittal performed a bilateral lumbar branch block on the plaintiff on 16 April 2021. She otherwise has had no involvement in the plaintiff’s treatment. She provided a medico-legal report to the plaintiff’s solicitors dated 21 August 2023.[66] Dr Mittal recorded the radiological investigations to date as follows:
CT lumbar spine dated 8 October 2020 revealed shallow disc herniations at L3/4, L4/5, and L5/S1. Multilevel lumbar intervertebral osteochondrosis with prominent Schmorl's nodes at T12/L1 and L1/L2.
MRI lumbar spine dated 17 December 2020 revealed moderate facet joint arthrosis at L3/4, moderate facet joint arthrosis at L4/5 and mild facet arthrosis at L5/S1. There is no neural compression noted. There is a posterior disc hyperintense zone at the L4/5 and L5/S1.
Bone scan study dated 3 February 2021 revealed increased activity consistent with degenerative arthritis in the inferior part of the right sacroiliac joint, bilateral L4/5 facet joints and right L2/3 facet joints.
Nerve conduction study of the right lower limb dated 16 March 2021 was normal.
[66] Exhibit P14, PCB 109-116.
MRI of the lumbar spine dated 21 February 2022 revealed mild to moderate degenerative changes in the vertebral endplates at multiple levels. Schmorl's nodes present in the lower thoracic and lumbar spine. Mild degenerative changes involved in the L4/5 facet joints. No evidence of neural compression.[67]
[67]Exhibit P14, PCB 112.
65Dr Mittal summarised her impression of the plaintiff this way:
1.Aggravation of pre-existing lumbar spondylosis.
2.The specific causes of pain are right-sided myofascial spasm and possibly underlying sacroiliac joint pain. He has had medial branch blocks that have been negative for facet joint pain.
3.He has also developed adjustment disorder with depressed mood and anxiety.[68]
[68]Exhibit P14, PCB 112.
66Dr Mittal said she could not offer any further treatment options for the plaintiff, but believed that he would need to “remain under the care of his general practitioner and rehabilitation specialist and continue with physiotherapy leading on to self-management strategies, psychological therapy and analgesic medications.”[69]
[69]Exhibit P12, PCB 112.
67Dr Mittal said that in her opinion, and in consequence of his spinal injury alone, the plaintiff lacks the capacity to perform his preinjury duties on a part or full-time basis. She said the physical limitations that precluded him performing such duties, included restrictions in bending and lifting, repetitive bending and lifting, twisting or turning as well as stooping, kneeling squatting or crouching, prolonged sitting, standing or walking, raising arms above shoulder height, walking up inclines or down declines, using steps stairs or ladders, walking on uneven ground or pushing and pulling activities.
68Dr Mittal believed that the incapacity from which the plaintiff labours is permanent, and, therefore, likely to last for the foreseeable future.
69Furthermore, Dr Mittal said she did not believe that the plaintiff had capacity for suitable alternative employment on a consistent and reliable basis, given that any form of mild to moderate activity runs the risk of aggravation of pain as well as having regard to the plaintiff’s age, his limited education and that his work experience was limited only to labourer’s work. It is unclear how Dr Mittal treated the plaintiff’s age and that she referred to, and if she favourably took into account his relative youth.
70In addressing the Recovre report,[70] Dr Mittal said she did not think the plaintiff had capacity to perform work duties as a packer, product assembler, forklift driver, or production clerk. In arriving at her opinion, Dr Mittal said that the plaintiff’s sitting, standing and walking tolerances were extremely limited. She said that he has limited bending tolerances. He is unable to drive for prolonged periods. He struggles with memory and concentration, and experiences very poor sleep resulting in reduced focus during the day. He is not able to lift more than three to four kilograms, and not for prolonged periods or on a repetitive basis.
[70] See Exhibit D8.
71Dr Mittal was supplied with surveillance footage of the plaintiff covering the period 29 November 2022, 19 December 2022 and 2 March 2023. She regarded the surveillance footage of the plaintiff as extremely limited and said that nothing she observed in it, altered her opinions.
Dr Ali Kian Mehr
72Dr Ali Kian Mehr is a rehabilitation specialist and neurophysiologist. The plaintiff commenced attending Dr Mehr for review in February 2021, and whom he continued to see regularly until at least August 2022. During this time, the plaintiff reported significant physical restrictions, and he was trialled on different medications at varied dosages. He completed a pain management program.
73In a report dated 24 September 2022, Dr Mehr diagnosed the plaintiff with chronic lumbar spine pain on an aggravation of lumbar spondylosis that he thought was mostly a combination of discogenic pain,[71] and facetogenic pain.[72]
[71]Discogenic pain involves degenerative changes of the intervertebral disc, including structural defects that result in biomechanical instability and inflammation.
[72]Most commonly, facetogenic pain is the result of repetitive stress and/or cumulative low-level trauma, leading to inflammation and stretching of the joint capsule.
74In Dr Mehr’s opinion, the cause of the plaintiff’s pain was his work duties and he said:
Prognosis for chronic pain condition is guarded due to chronicity of the condition and lack of response to many treatments.
Prognosis for return to pre-injury work is guarded. He is unable to return to pre-injury work or any other physical work due to significant limitation in his functional limitation or functional capacity as a result of chronic pain condition.
Prognosis with regards to alternative job is guarded due to his English barrier and lack of suitable experience, suitable education and suitable qualification.
I believe this condition will continue for foreseeable future.[73]
[73]Exhibit P9, PCB 90.
Dr Kilner Brasier
75Dr Brasier is the plaintiff’s treating occupational physician. Five reports from Dr Brasier were tendered dated 20 May 2021,[74] 21 October 2021,[75] 4 November 2021,[76] 27 January 2022,[77] and 25 August 2022.[78]
[74] Exhibit P4, PCB 28-29.
[75] Exhibit P5, PCB 46-47.
[76] Exhibit P6, PCB 51-52.
[77] Exhibit P7, PCB 55-56.
[78] Exhibit P13, PCB 106.
76When the plaintiff first attended Dr Brasier in May 2021, he thought the plaintiff had “no current work capacity for his pre-injury duties nor suitable duties.”[79]
[79] Exhibit P4, PCB 29.
77In his report dated 21 October 2021, Dr Brasier recorded:
I have discussed with him the importance of attempting suitable duties as part of a return to work plan. I have also advised him that should be he unable to continue he should cease work and report back to us. He will commence the trial on Monday with the following restrictions:
1. Working in the laundry for three non-consecutive days per week
2. No prolonged bending
3. No carrying weights greater than 5kg
4. He struggles with driving a motor vehicle so I would impose a taxi only requirement.[80]
[80] Exhibit P5, PCB 46.
78The plaintiff next attended Dr Brasier after he had “tried” his return to work plan with the employer. Dr Brasier noted that the plaintiff had “worked for two hours and then unfortunately was unable to continue.” He added that the plaintiff had “complained of having to wear heavy steel capped boots, which he states tended to aggravate his pain.” Dr Brasier considered that the plaintiff had “no current work capacity for his pre-injury duties nor for suitable duties.” He advised that the plaintiff take “a month’s break from any return to work or suitable duties attempt…”[81]
[81] Exhibit P6, PCB 51.
79On 27 January 2022, Dr Braiser reported that:
…He currently has no work capacity for his preinjury duties.
I also believe he has no work capacity for any suitable duties.
Given that time that has elapsed following his injury and the fact that his symptoms have not changed his overall physical condition unfortunately has not been able to be improved.
He really is unfit for any future gainful employment in my opinion.[82]
[82]Exhibit P7, PCB 55.
Dr Pouya Hafezi
80Dr Hafezi is one of plaintiff’s treating pain and rehabilitation specialists. The plaintiff tendered a letter written by Dr Hafezi to the plaintiff’s then GP dated 2 February 2022, together with a report to the plaintiff’s solicitor of 7 October 2022.
81Dr Hafezi first assessed the plaintiff on 2 February 2022. He recorded the plaintiff’s presenting issues as:
1. Low back pain with nociceptive descriptors.
2. Right leg referred pain with a neuropathic component.
3. Reduced exercise, sitting, and standing tolerance and pain-related disability
4. Mood frustration and insomnia.
5. Subjective erectile dysfunction.
6. Inability to return to work.
7. Inability to do leisure time activities.[83]
[83] Exhibit P8, PCB 57.
82He recommended that the plaintiff attend for physiotherapy and psychology assessments, and he ordered a further MRI.
83In his report of 2 October 2022, Dr Hafezi proffered a diagnosis of “chronic secondary axial spine pain associated with structural changes of moderate severity.” He considered that the specific source of the plaintiff’s symptoms was “most likely the facet joints and discogenic changes with a referred mixed radicular and somatic pattern of pain in the right leg.”[84]
[84] Exhibit P10, PCB 93.
84Dr Hafezi considered that the plaintiff’s condition was work related. He said that future treatment ought to consist of a rehabilitative approach comprising ongoing management by medication, physiotherapy and ongoing management of exercise progression, psychology sessions, and a return to work program.
85Dr Hafezi noted that the plaintiff had reported “mild improvements overall following his pain management program. From a functional perspective, this has been demonstrated by gradual increases in both his activity and exercise by following a graded approach. Despite this, Mr Husaini continues to experience significant functional limitations because of his lower back injury.”[85]
[85]Exhibit P10, PCB 94.
86Dr Hafezi did not think that the plaintiff possessed a capacity to perform his vocational duties. He said that a “significant reduction in current symptoms” was required for the plaintiff to be able achieve a full return work.[86] However, he further said that the plaintiff:
can return to alternate duties on restricted hours. Work needs to be back-friendly. Therefore, lifting only between waist and chest height. Avoid bending, lifting, and twisting below waist height and above chest height. A sit-stand position to alter his posture between one and the other. Sitting for no more than 60 minutes. Standing for 15 minutes and then returning to sitting. He could push and pull an easily manoeuvred trolley 10 kg. Within these limitations, he can work five hours, five days per week.[87]
[86]Exhibit P10, PCB 94
[87]Exhibit P10, PCB 95.
Mr David Wyputa
87The plaintiff’s treating physiotherapist, Mr Wyputa prepared a report dated 10 October 2022.[88] He echoed the diagnosis made by the occupational physician Dr Boffa (who reported on behalf of the defendant), that the plaintiff was suffering from discogenic low back pain.
[88] Exhibit P11, PCB 96-103.
88Mr Wyputa recorded that the plaintiff first presented with very limited movement and high pain levels occurring during action. He treated the plaintiff with manual therapy and recommended home based gentle stretch exercises. As treatment progressed, he provided the plaintiff with a lumbar back brace, heat packs and recommended the plaintiff undertake a routine of short walks. The plaintiff also commenced attending hydrotherapy several days a week.
89When the plaintiff last attended on Mr Wputa, he reported constant lower back pain referred to the right leg. Mr Wyputa thought that based “both on his high level of disability and lack of progress at the time of last review, along with subsequent opinions of specialists that have reviewed Jawad since that time I believe his current symptoms and functional limitations will continue for the foreseeable future.”[89]
[89] Exhibit P11, PCB 100.
90My Wyputa did not believe that the plaintiff had capacity to perform his preinjury duties, and that this would continue for the foreseeable future. He also thought that the plaintiff’s postural restrictions and limitations, as well as his education and work experience meant that he had “no functional ability to engage (sic) suitable employment in the foreseeable future.”[90]
[90] Exhibit P11, PCB 102.
Dr Sean Low
91Consultant occupational physician Dr Low, provided a medico legal report to the plaintiff’s solicitors dated 28 August 2023. He had regard to the radiological investigations and the plaintiff’s background and the mechanism of injury, as reported to him by the plaintiff.
92Dr Low recorded that present treatment consisted of Lyrica 150 mg twice daily, and Norflex. He noted that the plaintiff otherwise attended physiotherapy once a week, and a psychologist once a month.
93On examination, Dr Low observed the plaintiff “to walk with a slow gait,” and that he had minimal lumbar range of motion through all planes, limited by pain. He was unable to squat and had difficulty rising on his heels or toes.[91]
[91]Exhibit P16, PCB 128.
94Dr Low diagnosed the plaintiff with “chronic discogenic back pain.” He commented that the plaintiff’s pre-injury duties “consisted of significant physical demands,” which in his view were the “main contributing factor to the initial development of his symptoms.”[92]
[92]Exhibit P16, PCB 128.
95Dr Low considered the plaintiff’s prognosis as poor and complicated by psychosocial factors. He considered that the plaintiff was permanently precluded from returning to his pre-injury role. He said:
From a physical point of view, he would be precluded from any meaningful sustained period of bending, twisting, and lifting greater than 2kg. He would also be precluded from standing for greater than 10 to 12 minutes or sitting for 10 to 12 minutes without ability to alternate his posture. I consider that these physical impairments will remain permanent in the foreseeable future, evidenced by ongoing symptoms despite the passage of time.[93]
[93] Exhibit P16, PCB 130.
96Dr Low reported that based on his spinal injury alone, the plaintiff was, “unfit for suitable employment on a consistent and reliable basis.” He noted his “significant disability,” from a physical point of view.[94]
[94]Exhibit P16, PCB 131.
Defendant medical evidence
Dr Umberto Boffa
97Dr Boffa is an occupational and environmental physician who saw the plaintiff on behalf of the defendant, and furnished three reports dated 30 November 2020, 19 July 2021 and 17 September 2021.[95]
[95] Exhibit D2, DCB 48-66.
The first report
98Dr Boffa recounted that the plaintiff’s complaints were of constant right lumbar and lower limb pain with the former of greater severity, that he was sleeping poorly and mainly lay prone and not on his side, and that he is required to lie down during the course of the day. Despite this, Dr Boffa wrote that the plaintiff remains independent in activities of daily living, although he encounters difficulty with socks and shoes, and he avoids bending. He does not perform any domestic chores, driving, lifting or carrying, but can sit for five minutes and stand and walk for limited, but longer periods of time.
99On examination, Dr Boffa identified that the plaintiff’s range of motion of the lumbosacral spine was moderately decreased, and there was discomfort in forward flexion and extension, and mildly and equally there was restriction in bilateral flexion. Examination of the lower limbs revealed “normal tone, strength in all muscle groups, loss of proprioception and sensation cylindrically in the right lower limb, reflexes (mildly reduced right knee flex) and seated straight leg raising.”[96]
[96]Exhibit D2, DCB 50.
100Dr Boffa diagnosed the plaintiff with discogenic low back pain, with possible right L4 radiculopathy. He considered lower limb nerve conduction studies were required in order to exclude right L4 radiculopathy. He believed that the plaintiff’s condition was caused by manual handling in the course of his work duties on 1 July 2020, and he considered that the plaintiff’s condition was due to an aggravation of previously asymptomatic pre-existing lumbar spondylosis.
101He did not think that the plaintiff was able to return to preinjury duties and hours, but that he remained fit for four hour shifts on three non-contiguous days per week with duties that permitted him to move around with breaks as required. Avoiding repetitive bending, twisting, pushing, pulling, lifting and carrying more than five kilogram. He considered it likely that the plaintiff could graduate to full-time preinjury duties “over the next 16 weeks” based on appropriate active rehabilitation and a walking program.[97]
[97]Exhibit D2, DCB 50.
102Dr Boffa believed the plaintiff required a “3-month physiotherapy-monitored pool program complemented by self-managed graduated core-strengthening walking program, beginning with 10 minute walks twice-daily and graduating to 30 minute walks thrice daily over 12 weeks, clenching his buttocks when passing each driveway.”[98]
[98]Exhibit D2, DCB 50.
The second report
103In a report dated 19 July 2021, Dr Boffa recorded that the plaintiff had “reported no change in severity of low back and right lower limb pain since injury,” and that it was “worse in cold weather,” and at night sleep was disturbed.[99] He said that the plaintiff preferred to lie supine and lay down through the day but remained independent in activities of daily living.[100]
[99] Exhibit D2, DCB 55.
[100]Exhibit D2, DCB 55.
104Dr Boffa considered that the plaintiff’s “low back pain and functional tolerances do not fit a discogenic or facet arthrogenic picture with radiculopathy not verified and with symptom amplification.”[101]
[101]Exhibit D2, DCB 56, question 2.
105Dr Boffa said he believed that the plaintiff’s “condition was caused by manual handling in the course of his duties,” and further considered that it may “be an aggravation of previously asymptomatic pre-existing lumbar sacral spondylosis.”[102]
[102] Exhibit D2, DCB 56, questions 3-4,
106Dr Boffa’s opinion altered for the worse from his first report, in that he said that not only was the plaintiff “unable to return to his preinjury duties and hours and on his presentation has no current work capacity with objective assessment of ADLs advisable but recovery indefinite.”[103]
[103] Exhibit D2, DCB 56, question 5.
The third report
107In his report dated 17 September 2021, Dr Boffa said that he had attended the work site, and met with the plaintiff together with a return to work coordinator and the owner of the employer. Dr Boffa said that he had taken account of the plaintiff’s preinjury duties, and in conjunction with the return to work coordinator, he had visited the laundry which comprised of a front serving counter, three banks of frontloading washers and dryers as well as a central folding table and shelving on each of the four walls, which held clean folded uniforms.
108Based on his assessment, Dr Boffa offered a further and different opinion in which he said he believed that the plaintiff was fit to perform “bench-based folding duties sitting and standing with both kitchen and fully adjustable office chairs provided with no reaching bending twisting lifting or carrying of more than 2-3 kg.”[104]
[104]Exhibit D2, DCB 61.
109Dr Boffa also said that on the plaintiff’s presentation he was not fit for modified preinjury duties, but that based on his examination of the workplace and the plaintiff’s symptom amplification, he thought that he should increase his hours very slowly over a period of 10 weeks and he set out a table outlining his proposed progression in the plaintiff’s work hours over such a timeframe.
Dr Clayton Thomas
110Dr Clayton Thomas is a consultant in rehabilitation and pain medicine who provided a report dated 21 December 2022 at the request of the defendant.[105]
[105] Exhibit D4, DCB 84-92.
111Dr Thomas said that the predominant problem the plaintiff confronts is lower back pain in the middle central lower lumbar spine. The plaintiff also reported experiencing pain in the right leg. He said that when the plaintiff walks, his right leg will lock and he then he cannot move it. The plaintiff said he favours putting weight through his left leg, as opposed to his right leg. He reported that his right big toe is stiff, and he has a burning pain in the right heel as well.
112Dr Thomas had regard to the diagnostic investigations he had been provided. He noted the MRI of the plaintiff’s lumbar spine dated 17 December 2020, concluded no spinal canal or neural foraminal stenosis[106] at any level, and as well, “no evidence of exiting nerve impingement. Multilevel facet arthrosis, which can be a source of back pain and referred symptoms.”[107]
[106] A narrowing of the spinal canal.
[107] Exhibit D4, DCB 85, paragraph 8.
113Dr Thomas listed the plaintiff’s medication to include orphenadrine 100 mg twice per day (a muscle relaxant) and pregabalin 150 mg twice per day (an antineuropathic antiepileptic medication). The plaintiff told Dr Thomas that he sometimes takes medication three times per day, and that he found them helpful.
114Dr Thomas examined the plaintiff and noted widespread tenderness from L3 to S1, and as well when he was standing, the plaintiff tended to put more weight through the left leg than the right leg. The plaintiff’s “lumbosacral movements were minimal. Axial compression and pelvic rotation both reproduced lower back pain.”[108] He noted that “power in the right leg was give way,” but there was no wasting on formal measurement, and straight leg raising was better seated than lying.[109] As well, the right leg was numb to the groin compared with the left. Dr Thomas said, “it is not really possible to determine what the original organic condition was that caused him to complain of lower back pain in 2020.”[110]
[108] Exhibit D4, DCB 86, paragraph 14.
[109] Exhibit D4, DCB 86, paragraph 14.
[110] Exhibit D4, DCB 87, paragraph 15.
115Dr Thomas thought the plaintiff’s condition, “has been overtaken by a non-organic chronic pain syndrome, in keeping with a somatic symptom disorder; pain related and severe.”[111]
[111] Exhibit D4, DCB 87, paragraph 15.
116Dr Thomas said the plaintiff had received appropriate treatment, and that “treatment in these situations invariably results in minimal improvement.”[112] However, he noted that the plaintiff had been fortunate, as there had not seemed to have been any deterioration.
[112] Exhibit D4, DCB 87, paragraph 15.
117Dr Thomas did not believe that the plaintiff could return to preinjury duties, or hours. He considered that the plaintiff’s “stated intolerances to any sustained posture,” precluded an ability to return to modified or alternative duties or hours.[113]
[113] Exhibit D4, DCB 87, paragraph 16.
Professor Peter Teddy
118Professor Teddy, neurosurgeon, provided three medico legal reports at the request of the defendant solicitors.[114] He produced his first report dated 19 January 2023, following examination of the plaintiff. He commented on surveillance footage of the plaintiff in his second and third reports dated 24 July 2023, and 21 August 2023.
[114] Exhibit D5, DCB 93-101.
The first report
119Professor Teddy said he reviewed the radiological imaging and reports, and the reports of Dr Boffa, Dr Akil, Dr Mehr, Dr Brasier, Dr Chowdary, Dr Rahimikia, Dr Hafezi and A/Prof Varma along with the medical records of the Dandenong West Medical Centre, First Health Medical Centre and Broad Oak Medical & Dental.
120Professor Teddy noted the plaintiff’s current complaints were:
(a) low back pain, which had been present since July/September 2020, that fluctuates. If he sits down for any length of time, he develops such pain that he needs to stand. The pain is worse on bending, going to the toilet, showering and changing his clothes;
(b) adopting a tilting posture on standing or sitting;
(c) inability to lift more than 2 kgs without back pain;
(d) radiation of pain into the right lower limb that felt weak, cramped and burned; and
(e) right leg numbness and stiffness.
121Professor Teddy recounted that the plaintiff undoubtedly had unfortunate and traumatic experiences early in his life, and had not been trained in anything other than a manual occupation. He recorded that the plaintiff suffered the disadvantage of speaking very limited English. He further noted that since the plaintiff’s arrival in Australia in 2010, he had been engaged only in heavy manual work and he wrote that it is “unlikely that he will have or will develop a capacity for duties of a non-manual nature.”[115]
[115]Exhibit D5, DCB 97, question 3.
122Professor Teddy identified “evidence on CT and MRI of mild/modest degenerative changes in the lumbar spine,” such that the plaintiff may be subject to mechanical back pain, but that there was “no convincing clinical evidence or radiological evidence of neural compromise at any level.”[116]
[116]Exhibit D5, DCB 97, question 3.
123He wrote that the plaintiff “probably has suffered an aggravation of a modest lumbar spondylosis has clinical evidence also of chronic pain behaviour. His reported pain descriptor was and incapacities are disproportionate to his clinical findings such that a considerable component of his current chronic pain condition is likely attributable to past traumas, coupled with anxiety and depression regarding his potential for future employment and social interaction.”[117]
[117]Exhibit D5, DCB 97, question 3.
124Professor Teddy thought that the plaintiff “is not capable of undertaking pre-injury duties or any form of employment for which is suitably trained.”[118] From a strictly neurological point of view, he did not think there was a reason why the plaintiff “could not return to some form of a more sedentary employment if such could be found.” He wrote however that the plaintiff’s “chief impairments in preventing progress in this direction, however, seem to relate more to his mental state and entirely understandable psychosocial problems than to observable physical findings.”[119] Ultimately though, Professor Teddy did not think the plaintiff’s prognosis was optimistic.
[118]Exhibit D5, DCB 97, question 4.
[119]Exhibit D5, DCB 97, question 4.
The supplementary reports
125For his second report of 24 July 2023, Professor Teddy was supplied surveillance reports showing the plaintiff’s activities, along with CCTV footage depicting the roles of a meat boner and slicer. He noted that he was not able to see the footage, and had only seen photographs of the plaintiff’s activities, together with a vocational assessment report.
126Professor Teddy wrote that such information as he could glean from the photographs of the footage, “would suggest an individual engaging in social activities without evidence of back pain or limb pain/restricted movement during the normal days of social activity involving simple walking, drinking coffee and getting in and out of vehicles.”[120] He said that the plaintiff’s general demeanour was such that it gave “the impression of his having the ability to engage quite readily in social and working activities that do not involve heavy manual labour.”[121] However, Professor Teddy also said that his opinion of the plaintiff’s current medical state remained as he had previously reported. He went on to say that he believed the plaintiff suffers from an aggravation of a mild spondylosis, as he had earlier reported, but that the limitations on his activity “are significantly influenced by psychosocial circumstances,” and he added that a “weightlifting restriction of 2 kg seemed to be excessive.”[122]
[120]Exhibit D5, DCB 98.
[121] Exhibit D5, DCB 98.
[122] Exhibit D5, DCB 97.
127Professor Teddy further recorded that he can “understand that repetitive lifting and carrying of heavy animal carcasses would significantly influence aggravation of his reported symptoms but as to whether boning and slicing would do so to any significant extent must rely upon the comment of expert opinion of those visiting his workplace and providing more accurate vocational assessment reporting.”[123]
[123] Exhibit D5, DCB 98.
128Professor Teddy said that on the photographic evidence provided, “I would say that Mr Husaini does have the capacity to perform the roles identified in his VAR of 30/01/2023 but that the principal bar to his obtaining and taking up such employment is both motivational and psychosocial.”[124]
[124] Exhibit D5, DCB 98.
Dr Anthony Menz
129Dr Menz is a consultant orthopaedic surgeon who saw the plaintiff on behalf of the defendant on 23 January 2023, and furnished a report dated 31 January 2023.
130Dr Menz said that the plaintiff displays “significant illness behaviour and has multiple Waddell criteria consistent with non-pathological findings of low back pain.”[125] He proposed a diagnosis of “functional back pain” and did “not believe he has any significant musculoskeletal problem in relation to his lumbar spine.”[126]
[125]Exhibit D6, DCB 108, question 2.
[126]Exhibit D6, DCB 108, question 3.
131He further wrote how the plaintiff had sustained “no acute injury but a gradual onset of pain which should have resolved within 2 to 3 months maximum particularly as he ceased work in July 2020. He has not worked for two and half years and his back pain is worse now.”[127]
[127]Exhibit D6, DCB 109, question 3.
132Dr Menz thought that the plaintiff was capable of undertaking suitable employment. He said that it was “difficult to place any restrictions on him because most of his complaints are functional in nature. There is no significant pathology on radiological investigations and he has multiple nonpathological findings on clinical examination.”[128]
[128] Exhibit D6, DCB 109, question 4.
133Dr Menz said that the plaintiff’s incapacity “is solely related to the functional approach he has to his illness. This man has no significant pathology in his back and he has no significant injury at all in his back.”[129]
[129] Exhibit D6, DCB 109, question 5.
134Dr Menz provided a further supplementary medico legal report to the defendant’s solicitors dated 3 May 2023. For the purposes of providing the supplementary report, Dr Menz was furnished with the Recovre vocational assessment report dated 30 January 2023.[130] He said that the plaintiff has the physical capacity to undertake work as a packer, production assembler, a forklift driver and a production clerk. He went on to say that it would be reasonable for the plaintiff to commence on half time duties, increasing to full-time duties after about six to eight weeks.
[130] See Exhibit D8.
Associate Professor George Mendelson
135Associate Professor Mendelson examined the plaintiff for a psychiatric assessment by way of a telehealth consultation over zoom. He prepared a report for the defendant’s solicitors dated 2 August 2023.[131]
[131] Exhibit D7, DCB 116-146.
136He expressed his opinion based on his consideration of the history provided by the plaintiff, the plaintiff’s description of his current symptoms, his observations on mental status examination, as well as clinical information in the documents received.
137A/Prof Mendelson noted that the plaintiff had been diagnosed with an adjustment disorder, with mixed anxiety and depressed mood. He further noted that the plaintiff had a pre-work injury diagnosis and of anxiety and depression in 2018. He recorded that the plaintiff was not prescribed any psychotropic medications, but had some contact with a psychologist for a period of four months whilst attending pain management.
138A/Prof Mendelson did not think there was any indication that the plaintiff required “treatment for any work-related mental disorder under the care of either a consultant psychiatrist or a clinical psychologist, or for him to be prescribed any psychotropic medication.”[132]
[132] Exhibit D7, DCB 139.
The Recovre report
139Ms Janette Ash, is a registered occupational therapist, who prepared a suitable employment report at the request of the defendant’s solicitors dated 30 January 2023.[133]
[133] Exhibit D8, DCB 147-175.
140Ms Ash interviewed the plaintiff for her report and was provided with a suite of relevant medical reports. She wrote that:
The medical information reviewed is relatively pessimistic with regard to Mr Husaini’s capacity for work. All opinions reviewed indicate that he has no capacity to return to work as a slicer/boner within meat processing industries and they opine that he is unlikely to develop such a capacity in the future given his poor response to treatment. When considering suitable employment, the medical reports are similar in their agreement that Mr Husaini does not retain any capacity however the most recent opinion, that of Dr Pouya Hafezi (Specialist Pain Medicine and Rehabilitation Physician) and [sic] 07/10/2022 suggests that he may have capacity for very light work activities on a reduced hours basis of five hours daily.[134]
[134]Exhibit D8, DCB 153.
141Having considered the plaintiff’s education, training and experience, and noting the medical opinions, Ms Ash thought that the plaintiff was:
likely to be very restricted in terms of the range of employment options available to him within the open labour market. His existing skill set and experience base is such that he is limited to low skill occupations not involving any particular qualifications or experience. There are a variety of occupations in this category including packing, product assembly and process worker roles across a broad range of production and manufacturing industries however the medical information is such that he would be limited to very light, benchtop type employment within these occupations.
Aside from these factory based packing and production related occupations, Mr Husaini’s only other existing vocational option is that of a forklift driver. Given the medical opinions reviewed, it seems unlikely that he would be considered to possess the physical capacity to perform all forklift driving roles, and the inherent exposure to vibration forces and trunk rotation may be further barriers to such employment. Despite this, forklift driving remains a viable option from a vocational perspective and it may be that Mr Husaini develops greater postural tolerances to allow him to work within selected forklift driving roles where there are no inherent manual handling demands. It is our experience that these types of forklift driving roles arise more frequently within large scale warehousing and distribution settings.
Thus, overall Mr Husaini has a very limited range of vocational options when considering his education, training, experience, English language skills and the medical information provided. The requirement for part time employment further limits his employment options unless he were to complete additional training.[135]
[135]Exhibit D8, DCB 153-154.
142Nonetheless, Ms Ash identified four jobs which were “suitable” options for the plaintiff to consider. However, she qualified the suitability of the roles she identified as follows:
…It is acknowledged that Mr Husaini’s physical condition, and particularly his pain management and postural tolerances would need to improve in order to regularly undertake the duties and tasks normally associated with these occupations however these options represent his most likely avenue of return to the workforce if and when he develops such a capacity.
1. Packer – selected roles only (ANZSCO: 832199)
2. Product assembler – selected roles only (ANZSCO: 832211)
3. Forklift Driver – selected roles only (ANZSCO: 721311)
With further language and literacy training:
4. Production clerk (ANZSCO: 591112)[136]
[136]Exhibit D8, DCB 154.
Defendant lay witness affidavits
143The defendant relied on two affidavits of shift supervisor Luiz Dobre,[137] and human relations consultant Lino Magnano.[138] Neither deponent was required for cross examination.
[137]Exhibit D11, DCB 192-198.
[138]Exhibit D12, DCB 199-205.
Luiz Dobre
144Mr Dobre was the plaintiff’s shift supervisor. He has slicers and boners under his supervision. He described the job of a boner as “a little bit harder” then the job of a slicer.[139] He said that the plaintiff was a slicer and had worked as a boner for three or four days, before telling Mr Dobre, “that it was hard and he had sore hands.”[140] Mr Dobre said the plaintiff then returned to slicing.
[139]Exhibit D11, DCB 196, paragraph 9.
[140]Exhibit D11, DCB 196, paragraph 13.
145Mr Dobre deposed that the plaintiff would not trim the meat properly, and when Mr Dobre watched the plaintiff perform his slicing duties “meat would be piling up.”[141]
[141]Exhibit D11, DCB 197, paragraph 15.
146Mr Dobre said that the pieces of meat the plaintiff worked with as a slicer “were maybe 7 or 8 kilos before they were cut. There was no lifting required. He had to pull and push it into position and as he sliced each piece, he pushed it onto the conveyor belt.”[142]
[142]Exhibit D11, DCB 197, paragraph 18.
147Mr Dobre said that the plaintiff “never complained” to him about a back injury.[143] He said that when the plaintiff commenced employment his attendance was good, but this changed, and he began to take too many days off work which Mr Dobre said the plaintiff attributed to family issues.
[143]Exhibit D11, DCB 197, paragraph 19.
148Subsequently, Mr Dobre said that the plaintiff was told there was not enough work for him, because there were “too many complaints” about the plaintiff, and “no-one liked working with him.”[144]
[144]Exhibit D11, DCB 198, paragraph 22.
Lino Magnano
149Ms Magnano was the employer’s HR consultant. She said that as a slicer, the plaintiff stood for most of the day. She said that the plaintiff did not have to lift the meat, but simply pushed it onto the conveyor belt. She said the duties of a slicer are that “there is no routine lifting and the heaviest thing he might have to lift on an occasional basis would be under 5-kilos if that. He is not required to lift carcases off hooks or anything.”[145]
[145]Exhibit D12, DCB 202, paragraph 4.
150Ms Magnano said the plaintiff “…was not a team player and that’s why he was told to wait at home, and we would call him when we needed him.”[146]
[146]Exhibit D12, DCB 204, paragraph 14.
151Ms Magnano deposed that the defendant has an “early intervention program for injuries.” If the plaintiff had reported a back complaint, then he would have been referred to Thompson Medical clinic to be assessed.[147]
[147]Exhibit D12, DCB 204, paragraph 17.
The plaintiff cross-examined
152The plaintiff’s affidavit evidence described a conveyor belt that would bring a cow carcass to him, from which he would have to remove the fat and bones and that he needed to lift and turn the carcass.
153The plaintiff agreed that there both boners and slicers worked at the abattoir. He agreed he was employed as a slicer. He confirmed Mr Dobre’s evidence that he had had been trained to work as a boner. Although Mr Dobre deposed that the plaintiff had worked as a boner for three or four days, the plaintiff said that he only did one day of boning work. He acknowledged that is the most difficult work, and after working as a boner he was sore “everywhere, including my arms.”[148]
[148]T 28, L 1.
154The plaintiff disagreed with Mr Dobre’s evidence that the pieces of meat he worked with as a slicer were about seven to eight kilograms, before being cut. The plaintiff said that the pieces of meat he dealt with were “35 to 40 kgs” and the pieces were about 30 cm long.[149] He said that the pieces of meat he handled were much bigger then the pieces of meat depicted in the defendant’s CCTV footage. When asked to indicate how big the pieces of meat he sliced were, he said that they were about the size of the computer monitor on the witness stand placed in front of him in the courtroom.
[149]T 28, L 25-26.
155Ms Manova put to the plaintiff that if he had told a doctor that he had to lift carcasses weighing up to 40 kilograms it would be incorrect, but the plaintiff disagreed.
156Ms Manova played short CCTV footage from December 2020 that depicted employees undertaking boning and slicing duties at the defendant’s premises.[150] The first part of the video showed the boning duties, and the second part of the video showed the slicing duties.
[150] Exhibit D10.
157After the video was played, the plaintiff said that it did not depict the slicing duties that he performed and that the pieces of meat in his section were much bigger. He said that the duties in his “other section” were not the same as those depicted in the video.
158Ms Manova suggested that the video showed a person standing at a table and taking meat that came down a conveyor belt, and then pushing it into a hole. The plaintiff said that the video footage showed a smaller area in which he had worked only when his section did not have enough work. The plaintiff also suggested that the meat shown in the video was “not 5 kgs, they’re about 15, 20 kgs, they can get even heavier.”[151]
[151] T 31, L 27-28.
159The plaintiff disagreed with Ms Manova’s suggestion that he was not required to “lift the carcasses and carry them anywhere, they simply get pulled from the conveyor on to your table.”[152]He reiterated that the section in which he worked was different to the section shown in the video. He said that the carcass would be delivered up via a hook, he would “pull it by the hook and then flip it over and quickly do the slicing.”[153] He said that the video depicted work that was very slow paced, but where he worked was “very fast paced. It’s a very difficult job, it’s a very hard job.”[154]
[152] T 32, L 1-3.
[153] T 32, L 3-5.
[154] T 32, L 6-8.
160Ms Manova challenged the plaintiff’s account of the onset of injury. The plaintiff deposed that he first developed low back pain in the course of his duties in about July 2020. He said that he continued to work until 25 September 2020. He then reported his injury, took a few days off work, and was told that he wasn’t needed anymore.[155]
[155] Exhibit P1, PCB 8, paragraph 11.
161The plaintiff said that he did not recall an induction being conducted with the employer. He said he reported his injury to Mr Dobre, who said “he would bring an extra worker to help” the plaintiff with his work.[156] He said he complained to Mr Dobre about his back around about when he first experienced pain in July 2020.[157]
[156] T 32, L 18-23.
[157] T 33-24, L 29-1.
162The plaintiff said that at about this time, Mr Dobre noticed that he was not working quickly, and his meat was piling up. He said he told Mr Dobre he had pain. He said Mr Dobre would shout at him “you have to work quickly” and gave him a helper to assist when he had pain.[158] The plaintiff could not remember when he was provided with assistance.
[158] T 33, L 17-28.
163The plaintiff said he asked Mr Dobre to be put on lighter duties because of his back pain, however, Mr Dobre said that the work at the abattoir was quiet, and he would call him when it picked up. This did not eventuate.
Dandenong West Medical Centre Records[159]
[159]Exhibit D1, DCB 7-34.
164Ms Manova challenged the plaintiff’s account that he had developed or experienced the onset of injury whilst at work and in fact he had not attended for any medical care until after he had ceased employment with the employer.
165Ms Manova put to the plaintiff that he had a telephone consultation with his then GP Dr Hamimi on 11 June 2020, but the clinical note recorded that the plaintiff complained of a headache, was feeling unwell and was unable to go to work.[160] The clinical note did not record back pain. The plaintiff agreed that Dr Hamimi spoke his native language, however, he could not remember the consultation.
[160]Exhibit D1, DCB 11.
166A note of 13 July 2020 recorded the plaintiff had a headache and was working in construction.[161] The plaintiff could not remember the consultation, but agreed that he had done some construction work by way of brick laying and labouring, prior to commencing work at the abattoir.
[161]Exhibit D1, DCB 11.
167The plaintiff next consulted Dr Hamimi on 31 August 2020, while still employed at the abattoir. The note recorded that the plaintiff was feeling unwell and not going to work.[162] Ms Manova pointed out to the plaintiff that the entry made no mention of his back, but the plaintiff was adamant that he had told Dr Hamimi about his back, and that he should have “written the correct report.”[163]
[162]Exhibit D1, DCB 10.
[163]T 37, L 4-7.
168The note of the next consultation was on 1 September 2020 and recorded, “sick, grieving, mother passed away.”[164] The plaintiff said his parents were killed in 2003 and so the reference to this mother made no sense. He added that he tried not to think about the murder of his parents.
[164]Exhibit D1, DCB 10.
169The plaintiff had a telephone medical consultation on 11 September 2020. The note recorded that the plaintiff was unwell and required a medical certificate.[165]
[165]Exhibit D1, DCB 10.
170Ms Manova suggested to the plaintiff that the records of his treating doctors from July to September 2020 made no mention of back pain or a work related injury. The plaintiff said that he told his doctors about back pain and that he was prescribed pain killers, however, Ms Manova put to the plaintiff that the clinical records referred to, make no reference to the prescribing of medications.
171Ms Manova put to the plaintiff that the clinical records identify that the first time the plaintiff complained of back pain occurred five days after he finished working at the abattoir. The plaintiff said, “maybe, it was around that time, I don’t remember.”[166]
[166] T 39, L 27-28.
172Ms Manova took the plaintiff to a record of a telephone consultation on 7 October 2020 that “he was working casually at butchery shop he reported he lifted and carry [sic] large pieces of meat cause back pain he was told no work for you any longer he is not working now.”[167]Ms Manova suggested to the plaintiff that this was the first reference to a work related back injury and it occurred after he had been told that there was no work for him. The plaintiff said, “I don’t remember, I forget. All I know is that I did get injured while working there by doing, by manoeuvring the pieces of meat, by lifting those pieces, I did get injured, I did tell Luiz, and he kept pushing me to continue working.”[168]
[167] Exhibit D1, DCB 9.
[168] T 40, L 7-12.
173The plaintiff disagreed with Ms Manova that the meat had started piling up because he was not very good at his job. He said that he had worked with the defendant for years with no issues, until he hurt his back. He said that prior to his back injury he did his work on time and he was a quick worker. He said that he never took leave from work until he hurt his back. It was only after he hurt his back that “the meat started piling up because I wasn’t able to keep up with the work, he asked me, I told him about my back and then he sent me home and said that we will call you if we have any more work.”[169]
[169] T 41, L 9-12.
174Ms Manova suggested that the plaintiff was “angry and disappointed” that the employer had told him there was no more work for him.[170] The plaintiff said “no, it was because of my bad back.”[171] He said that “maybe possibly” he would have continued working if he had been offered lighter duties, but he had hurt his back.[172]
[170] T 41, L 30-31.
[171] T 42, L 1-2.
[172] T 42, L 5-8.
175Ms Manova asked the plaintiff why when he had seen a doctor in July, August or September of 2020, he had not requested a certificate for light duties. The plaintiff replied “but I did tell Luiz about my bad back, I did tell my doctors about my bad back, I don't remember exactly. I did tell them, I'm not sure if the doctors have forgotten.”[173]
[173] T 42, L 1-14.
Treatment and symptoms
176Ms Manova questioned the plaintiff about the extent and nature of his treatment. The plaintiff confirmed that he had some physiotherapy for his back, and it had helped him a little bit, but not a lot. He said his condition also depends on the weather, with his pain being worse on colder days. He said he had participated in a pain management program.
177The plaintiff said that he was prescribed Norflex and Lyrica, of which he takes two each in the morning, and two each at night. He takes his medications every day and he said he believed that “when I do take the medications it helps a little bit, but slowly but surely the medications wear off and my pain gets worse.”[174]
[174] T 44, L 8-10.
178Ms Manova suggested that no modality of treatment had improved the plaintiff’s overall condition. The plaintiff said he thought that he might have experienced a 20%, or maybe 15% improvement in his functionality.[175]
[175] T 44, L 8-10 & L 27-28.
179Ms Manova referred the plaintiff to Dr Mendelson, who recorded that the plaintiff told him that “nothing helped.”[176] The plaintiff said of his examination with Dr Mendelson, that “he asked, "has it gotten better" and I said no. He asked about exercises, and I said I am doing exercises, it helps a little bit, but it's not really helping, I'm not really improving.”[177]
[176] Exhibit D7, DCB 122.
[177] T 44, L 16-19.
180The plaintiff described experiencing pain from his back going down into his leg, such that his leg “completely switches off,” and he “can’t use the leg.” He said that this can get better “after about half an hour, slowly, slowly, slowly.” He said that it takes about three or four hours for his leg symptoms to slowly get better.[178]
[178] T 45, L 1-5.
181He said he will experience weakness in the leg, and numbness and stiffness that goes down to his toes, and he loses control of the leg and can’t move his toes. He described it as a “burning sensation.”[179] He said the weakness he has experienced in his leg has led to it collapsing from under him, and he has fallen on the floor at home, perhaps twice.[180]
[257] Exhibit P9, PCB 89.
[258] Exhibit P9, PCB 90.
[259] T 116, L 25-26.
255Mr Mighell noted that Dr Mittal had diagnosed an “aggravation of pre-existing lumbar spondylosis.”[260] She had recorded her opinion that the plaintiff’s spinal injury/condition, had an organic basis, as demonstrable on history and as well the findings of investigations.[261]
[260] Exhibit P14, PCB 112.
[261] Exhibit P14, PCB 113, paragraph 5.
256Mr Mighell next addressed the diagnosis from the physical view point of various doctors which support the proposition that the plaintiff has suffered an aggravation injury to the lumbar spine, which included:
(a) Dr Low’s diagnosis of “chronic discogenic back pain”;[262]
(b) Dr Akil’s diagnosis of facet joint arthropathy;[263]
(c) Professor Teddy’s diagnosis of “an aggravation of a mild spondylosis”;[264] and
(d) Dr Boffa’s diagnosis of “discogenic low back pain with possible right L4 radiculopathy.”[265] However, he later considered that the plaintiff’s functional tolerances did not fit a “discogenic or facet atherogenic picture with radiculopathy not verified and with symptom amplification.”[266]
[262] Exhibit P16, PCB 128, paragraph 2.
[263] Exhibit P9, PCB 87.
[264] Exhibit D5, DCB 98.
[265] Exhibit D2, DCB 50, question 2.
[266] Exhibit D2, DCB 56, question 2.
257Mr Mighell otherwise noted the diagnosis made by Dr Thomas of “chronic pain syndrome, nonorganic in nature, in keeping with somatic symptom disorder,”[267] and as well, Mr Menz’s diagnosis of “functional back pain.”[268] Mr Mighell contended that I ought not accept Mr Menz’s opinion on the basis that he made no comment about spondylosis or degenerative changes and his opinion was “against the weight of the medical evidence,” and “unsupported by a cogent path of reasoning.”[269]
[267] Exhibit D4, DCB 87, paragraph 16.
[268] Exhibit D6, DCB 108, question 3.
[269] Plaintiff’s outline of submissions dated 22 September 2023 (“POS”), page (“P”) 4, paragraph 6.
Pain and suffering consequences
258Mr Mighell addressed the plaintiff’s pain and suffering consequences that includes the prescribing of significant pain relieving medication, in the form of Norflex and Lyrica.
259Mr Mighell also pressed the following pain and suffering consequences:
(a) constant pain, that fluctuates in intensity and can radiate down the right leg. Which has continued in spite of treatment;
(b) reduced ability to sit and stand for extended periods. “20 minutes of sitting for example can bring on an onset of increased pain.”[270]
(c) reduced ability to perform functional movements like bending and squatting;
(d) difficulty driving;
(e) poor sleep;
(f) inability to contribute to household chores;
(g) struggling with intimacy; and
(h) loss of ability to work which he had enjoyed and which loss was upsetting and frustrating.[271]
[270]POS, P 4, paragraph 7.
[271] POS, P 4-5.
Economic loss consequences
260Mr Mighell submitted that it is open to find that there is “no employment for which the Plaintiff is suited when regard is had to the definition of suitable employment.”[272]
[272]POS, P 5, paragraph 8.
261In furtherance of his submission, Mr Mighell relied on the fact that the plaintiff is presently certified by his general practitioner as having “no capacity” for employment.”[273] Mr Mighell also observed that the plaintiff had attempted a return to work, which was unsuccessful, and there was no current present proposed return to work plan.
[273]Exhibit P17, PCB 149.
262Although, in the plaintiff’s cross-examination it was put to him that he had ceased attending his previous general practitioner Dr Hamimi, because he had urged the plaintiff to try other suitable employment, as the plaintiff said, and Mr Mighell submitted, no other suitable employment options had been proposed or suggested to the plaintiff putting aside the expert opinion Recovre report prepared for litigation. Mr Mighell identified that at the same time the plaintiff was attending Dr Hamimi, he was being treated by a pain physician, and also by the occupational physician Dr Brasier, who had similarly urged the plaintiff to return to work, but who, after the plaintiff had attempted it, did not consider that he had any work capacity. Mr Mighell said it was understandable why the plaintiff chose to cease attending Dr Hamimi in circumstances where the plaintiff’s understanding of himself, the pain he was experiencing, and his capacity proved at odds with that doctor’s view.
263Further addressing the medical evidence relevant to work capacity, Mr Mighell submitted that the evidence of the occupational physicians, ought to be preferred, on the basis that their expertise was specifically relevant to the issue of work capacity.
264Mr Mighell addressed the opinions of Dr Low and Dr Boffa.
265Mr Mighell observed that Dr Boffa had not seen the plaintiff in more than two years. In his report of 19 July 2021, Dr Boffa believed that the plaintiff had “no current work capacity.”[274] However, in his report dated 17 September 2021, based on his work site attendance and assessment, he considered that the plaintiff had capacity for suitable duties in the laundry. Mr Mighell contended that Dr Boffa had appeared to change his view for “no apparent reason” and had provided no explanation or path of reasoning.[275]
[274]Exhibit D2, DCB 56, question 5.
[275]POS, P10, paragraph 13.
266Mr Mighell submitted that Dr Low’s opinion that the plaintiff was “unfit for suitable employment on a consistent and reliable basis,” [276] was compelling. As Mr Mighell noted, Dr Low had examined the plaintiff on 28 August 2023, and had taken account of the plaintiff’s lack of education and minimal transferable skills. He specifically noted the plaintiff’s “poor English skills,” and “non existing computer-based skills.”[277]
[276]Exhibit P16, PCB 131.
[277]Exhibit P16, PCB 131.
267Mr Mighell pressed the submission that the plaintiff has “virtually no education at all.”[278] He observed that the plaintiff had never performed any clerical or office type work and had only ever worked as a forklift driver or in heavy manual work. In addition, the plaintiff’s ability to read and write English was negligible.
[278] POS, P 9, paragraph 12.
268Mr Mighell submitted that the medical evidence was in “lock step that the plaintiff does not have a work capacity.”[279] He relied on the opinions of the plaintiff’s GP, Dr Khan, occupational physician Dr Brasier, pain specialist Dr Mehr, Dr Mittal, Dr Thomas, and Professor Teddy each of whom considered that the plaintiff had no work capacity, or capacity for suitable employment.
[279] T 119, L 20-22.
269Mr Mighell referred to the Recovre vocational assessment of 30 January 2023.[280] In characterising the report, he commented that he had “not seen a vocational assessor provide such a bleak picture of vocational opportunity for a worker.”[281] The report included the following opinion:
Overall, and when considering both his education, training and experience, and noting the medical opinions, Mr Husaini is likely to be very restricted in terms of the range of employment options available to him within the open labour market.[282]
[280] Exhibit D8,
[281]T 120, L 23-25.
[282]Exhibit D8, DCB 153.
270Mr Mighell also highlighted that the Recovre report included that the plaintiff’s ability to perform the roles of packer, production assembler, and forklift driver, were each limited to “selected roles only” based on the plaintiff’s education, work history, and transferable skills. Furthermore, it was acknowledged in the report that the plaintiff’s “physical condition, and particularly his pain management and postural tolerance would need to improve in order to regularly undertake the duties and tasks normally associated with these occupations…”[283] Mr Mighell submitted that this amounted to an acceptance that the plaintiff could not at present, pursue the occupations identified by Recovre.[284]
[283]Exhibit D8, DCB 154.
[284]T 121, L 3-5.
271In addition, Mr Mighell submitted that the job of a:
(a) “Packer” was outside of the plaintiff’s restrictions, requiring him to:
(i)remove defective product from a conveyor, sit (on a table) or stand when working at a production line;[285]
[285]Exhibit D8, DCB 158.
(ii)bend, twist and place bundles of cardboard into a machine;[286]
(iii)empty bins, hose down the floor with a high pressure hose and then operate a floor scrubber;[287]
(iv)manipulate bins with a co-worker weighing 25 kilograms;[288]
(v)move full pallets of product with an electric pallet jack;[289] and
(vi)possess spoken language sufficient to communicate practical tasks and activities.[290]
(b) “Forklift driver” was clearly outside the restrictions posed by most of the medical practitioners.
(c) “Production clerk” requires clerical and computer skills which the plaintiff does not possess.
[286]Exhibit D8, DCB 159.
[287]Exhibit D8, DCB 159.
[288]Exhibit D8, DCB 160.
[289]Exhibit D8, DCB 161.
[290]Exhibit D8, DCB 162.
Analysis and reasoning
272Early in my reasons, I addressed the plaintiff’s ability to communicate in spoken English, and commented that despite some obvious limitations, by reference to that consideration alone, it was not such as to inhibit the plaintiff’s capacity to undertake employment, for example, in a predominantly manual role. However, the extent of the plaintiff’s facility with spoken English is not a consideration that looms large in the suite of factors that have determined the outcome of his application.
Credit
273The video surveillance of the plaintiff going about his life was relied on as significant evidence by the defendant. It is the case, that the plaintiff presented to a range of doctors as walking with a slow antalgic gait. For example, Professor Teddy recorded that the plaintiff “had a slow antalgic gait,” as well as constantly having referred to “his low back and his inability to engage in almost any activity.”[291] Similar comments were made by Dr Brasier in his report dated 4 November 2021, that the plaintiff appeared “very antalgic with respect to his gate today, he appears in significant discomfort.”[292] In cross-examination, the plaintiff’s evidence included, that he “can’t use” his right leg.[293] Of the three occasions of surveillance of the plaintiff shown in Court, it would not be possible to draw such a conclusion about the plaintiff’s gait. However, by the same token, I am satisfied, that the surveillance did reveal a degree of restriction in the movement exhibited by the plaintiff when observed getting in and out of the taxi. The plaintiff referred to his medication that assists him, and when challenged that his evidence had been that he takes his medicine of a morning, and yet he was filmed in the afternoon with no sign of a limp, the plaintiff explained that he may have well risen late and so the medication was still effective when observed on the footage. To the suggestion that he might have refrained from taking his medication on the days of examination by doctors in order to ensure his limp was observable, the plaintiff denied this. In any event, the worst that can be said of the suggestion made against the plaintiff, is that he does require medication to help with pain and to alleviate his gait such that without it a limp is observable, as it was to some who have examined him. It was not put to the plaintiff that he fabricated his manner of his walking, but rather that he had deliberately not taken his medicine in order to amplify a disability. I do not accept that proposition.
[291] Exhibit D5, DCB 95.
[292] Exhibit P6, PCB 51,
[293] T 45, L 2.
274Accepting Dr Varma’s account that the plaintiff told him in the course of examination on 29 November 2022 that he does not drive, that he had sold his car and used taxis, then that history was wrong, because of the plaintiff’s admission under cross-examination that he had indeed driven his car the morning of his examination by Dr Varma. The plaintiff agreed with Ms Manova that he was filmed that morning taking a jacket out of a car and that he had been driving that car before he got into the taxi to be driven to the examination with Dr Varma. The plaintiff told Ms Manova, “I don't remember, maybe I just recently purchased the vehicle and it was just parked outside of the house, maybe that was the case, I'm not sure. You can clarify that, or double-check it with VicRoads…”[294] The plaintiff’s evidence elsewhere was that he purchased the Nissan Pulsar in around November or December 2022, and it was the car depicted in the surveillance footage. As a matter of fact, the car could not have been purchased in December 2022, and must have been purchased before the examination with Dr Varma on 29 November 2022. The record of purchase or of registration was not before the Court in evidence.
[294] T 57, L 18-26.
275It seems the plaintiff had sold his car and then subsequently purchased the Nissan and accordingly, the statement by Dr Varma attributed to the plaintiff that he had sold his car was to that extent accurate. The statement that the plaintiff does not drive that Dr Varma attributed to the plaintiff was related by Dr Varma in absolute terms, and, if the question he asked the plaintiff about driving was also posed in absolute terms, then the plaintiff’s answer that he does not drive, is irreconcilable with his evidence and the surveillance showing him driving. There was no evidence to displace that statement from the plaintiff. Ultimately, however, I am satisfied the plaintiff told Dr Varma he did not drive and that the state of affairs on this issue was false. I am not however satisfied that the fact it was false means it was intentionally so. I am not persuaded it was deliberately false. I have also had regard to the plaintiff’s evidence in relation to this matter when he said, “I only drive to close by areas, I don't drive far.”[295]
[295] T 57, L 15-16.
276The report of injury and medical attendances was another area in which the plaintiff’s credit was tested, and it was also an area where the plaintiff’s initial certainty that he told his treating GP of injury gave way to uncertainty in light of the attendance notes to which he was directed.
277The clinical attendances do not disclose a complaint of back pain by the plaintiff to his doctor having been recorded over the course of four attendances between July and September 2020 and is not recorded as having been reported until 7 October 2020, five days after the plaintiff stopped attending work. The plaintiff said, “maybe, it was around that time, I don’t remember.”[296] This was a shift in the plaintiff’s evidence that he had been prescribed pain relief, and that he had referred to back pain and a work injury in previous doctor consultations. Given the uncertainty of the plaintiff’s memory on the matter, the absence of reference to the matter of injury, or to prescribed medicine in the doctor notes, I prefer the notes as more reliable than the plaintiff’s memory, and on balance, I do not think the plaintiff referred to a work injury and he was not prescribed pain relief prior to the first reference in the clinical record from October 2020. This is not however, to find as the defendant suggested to the plaintiff, that he fabricated back pain or injury as a result of having been sent home because of work performance, and of not having been offered further work as he said he was promised. First, I have taken into account that the plaintiff’s claim for compensation was accepted, and that he continued to receive weekly payments. Second, the medical evidence supports a finding that the plaintiff suffered a work related back injury. Third, I have also had regard to the fact that the plaintiff’s evidence included that prior to hurting his back at work, he had been a quick and committed worker.
[296] T 39, L 27-28.
278The absence of medical notes of the plaintiff having earlier reported back pain to his doctor, does not mean that I must necessarily find his evidence of having brought his back pain to the attention of his employer is also false but it is open to greater question, and on that issue, in light of the employer’s affidavit evidence and the absence of medical records of the same, I am not satisfied that the plaintiff proved on balance that he made a specific complaint of injury. Perhaps something was said by the plaintiff at the workplace but I am not persuaded it was an explicit complaint.
279Ultimately despite these findings, I am satisfied that the plaintiff has proved that he suffered an organic injury caused by his work duties. The defendant’s argument that it was not open to make such a finding was in part dependent on a finding that the plaintiff had lied about the heavy work he described that he undertook. I am not satisfied that the plaintiff lied. Regarding the video the defendant showed, the plaintiff said the pieces of meat he worked with were bigger and heavier than was shown. The video of course was not footage taken of the plaintiff performing his duties, but was of other workers filmed by or on behalf of the employer. The fact that the employer had another area where heavier work was performed that the plaintiff described was not gainsaid. But in any event, and more importantly, there is no medical evidence to contend that the plaintiff’s back condition could not be work related, but instead the contention is that any aggravation to an underlying condition has been overtaken by, or supplanted by, a functional illness or behavioural disorder. On the question of injury, I certainly do not read Professor Teddy’s reporting of the plaintiff’s work duties as incapable of giving rise to a serious aggravation of an underlying spondylosis. Dr Low for his part, diagnosed work related chronic discogenic back pain. Dr Hafezi diagnosed “chronic secondary axial spine pain associated with structural changes of moderate severity.”[297] Dr Mehr diagnosed “chronic lumbar spinal pain which is aggravation of lumbar spondylosis.”[298] Dr Akil diagnosed facet joint arthropathy. Dr Boffa altered the opinion he originally expressed of discogenic low back pain with possible right L4 radiculopathy because he did not regard that the plaintiff’s functional tolerances fit such a diagnosis. The dimensions and weights involved in the work the plaintiff carried is contested based on the account in the statement made by Mr Dobre to private investigators and attached to his affidavit. Given my impression of the video shown, and recognising too, that the plaintiff referred to a different area in which he worked, nonetheless, to my mind, the video itself did not comport in all respects with the comparatively benign nature of the tasks the defendant urged me to find the plaintiff performed even in the area it was asserted he at all times worked.
[297] Exhibit P10, PCB 93, paragraph 1.
[298] Exhibit P9, PCB 89.
280Although the plaintiff’s leg symptoms are problematic to reconcile with his underlying spinal condition in the absence of neural compromise, nonetheless, scans identified multilevel facet arthrosis, which may account not just for back pain but the referred symptoms, despite Dr Mittal’s testing proving negative to facet joint pain.[299]
[299] Exhibit P14, PCB 112.
281It seems to me, that in an application such as this, it is not a legal prerequisite for the grant of a certificate, that the plaintiff produce certainty and exactitude in matters of medicine but instead one ought to ask whether the plaintiff has adduced evidence that satisfies the fact of injury on the balance of probabilities. Here the question is whether the plaintiff has proved on the requisite standard that he has a current and ongoing i.e. permanent impairment to a bodily function caused by a work injury. On that score, I am satisfied the plaintiff has discharged his burden of proof, and I find that he has suffered a compensable injury to the lumbar spine in the form of aggravation of pre-existing degenerative changes by way of lumbar spondylosis.
282I have considered the defendant’s submission that the plaintiff had an obligation to disentangle any physical impairment from a mental disturbance, or mental disorder, or illness behaviour caused by way of a combination of past traumas and past depressive episodes and that he has not done so. If a need to disentangle arises, then I am confidently satisfied the evidence sufficiently has done so with the result that the plaintiff has established that his current presentation is due to identifiable physically manifested consequences of his work injury. In short, I am satisfied there is a substantial organic basis for the plaintiff’s injury and his presentation without a need to disentangle but if the obligation existed, it was discharged. In this regard, I accept the plaintiff’s account that his prior psychological distress associated with his former fiancée was put behind him before his work injury, and whether in response to it, or the somewhat nebulous account of a prior dispute with a coworker, or the traumas suffered as a child and young lad including his displacement as a refugee, so too he overcame them, with the effect of the evidence being that he had worked conscientiously and assiduously prior to but not since the work injury.
283Another of the defendant’s submissions, was that in the event I find as a matter of fact that the plaintiff suffered a work injury, the employer affidavit evidence should persuade me that the injury was not incapacitating, because the plaintiff worked on without complaint, or by way of a modification of his duties from July to September 2020, and ultimately ceased work for reasons unrelated to a back injury but due to the initiative of his employer. The primary difficulty I have with the defendant’s submission is, that even though I am not satisfied the plaintiff proved that he complained to his employer, and hence there was no overt reason by it to consider a modification of his duties, this itself is not sufficient to defeat a claim that the plaintiff suffered a work injury, or that it has resulted in an impairment with serious consequences by way of pain and suffering and interferences to activities of daily living, and or that it has occasioned a serious loss of earning consequences. My finding that the plaintiff did not establish that he complained, or seek to have his employer modify his duties, whilst warranting a need to be more mindful of the acceptance at face value of the plaintiff’s evidence on other matters, such as his account of the consequences he suffers, has not gone so far as to displace the objective evidence of injury that is consistent with a workplace aggravation. I am satisfied that the unreliability of those aspects of the plaintiff’s evidence to which I have referred has not outweighed the evidence of injury consistent with work and the consequences of a physical nature in terms of pain and suffering that have been identified by doctors and addressed by the plaintiff. There is no other reasonable account for the injury suffered and despite his pre-existing state, the plaintiff managed to work hard and go about his everyday life and to enjoy a variety of pursuits but that have now been lost to him or largely impeded.
284Furthermore, in addressing the consequences of the injury, the surveillance footage did not show the plaintiff performing any activity that was inconsistent with his presentation or the histories provided to doctors and the surveillance footage was shown to Dr Mittal, Dr Low, and Professor Teddy.
285In any event, in my judgment, the surveillance itself neither proved nor disproved restriction or pain. However, neither was the plaintiff seen to lift or carry anything heavy, or to undertake any vigorous activity. The video of him wandering around the Dandenong Plaza and having a coffee or sitting having a coffee is of mundane daily activity. As the plaintiff said, his venturing out was something he did on the recommendation of those he has seen for his mental wellbeing, but such an outing is of a far lesser character than the nature and extent he said he had travelled and driven and generally gotten out and about before his injury.
286I am satisfied and find that the plaintiff has suffered an aggravation injury to the lumbar spine.
Pain and suffering consequences
287Having rejected the defendant’s argument that the plaintiff’s presentation, if it was ever due to a physical injury, has been overtaken by an illness behaviour, then the question is, if I accept the plaintiff’s account of his consequences, they satisfy the statutory threshold. In short, I accept the plaintiff’s account and I am satisfied the consequences meet the legal test.
288The plaintiff’s circumstances are significantly worse since because of his injury. He is in receipt of significant pain relieving medication, in the form of Norflex and Lyrica and sees his treating doctor regularly.
289The plaintiff described constant pain that fluctuates in intensity and can radiate down the right leg. He described a reduced ability to sit and stand for extended periods. He has an impaired capacity to perform functional movements like bending and squatting. He has difficulty driving much anywhere beyond the Dandenong Plaza, a place that is close by. He experiences poor sleep. He cannot contribute to household chores. Despite his relatively young age, he referred to suffering sexual dysfunction.
290I also observe that there is a substantial body of medical opinion that the plaintiff’s injury is permanent, although because of the nature of the defence relied on, that matter was not put in contest by the defendant.
The pecuniary loss test – legal principles
291Before dealing with the relevant evidence of work capacity, it is convenient to set out the relevant legal principles.
292In order to establish an entitlement for leave to commence a proceeding for loss of earnings damages, the plaintiff must first establish that the loss of earning capacity consequences from the compensable injury, when judged by comparison with other cases in the range of possible impairments or losses of a body function, are fairly described as being “more than significant or marked”, and at least “very considerable”, as per the narrative test set out in s 325(2)(b) and (c) of the Act.
293I am satisfied that the fact of the plaintiff being unable to return to his pre-injury employment justifies a conclusion of a “very considerable” consequence to him, such that the narrative test is satisfied.
294The finding that the plaintiff cannot return to his pre-injury employment does immediately raise the question of what the residual capacity for “suitable employment” is.
295Returning to the legal principles, next, upon establishing “very considerable” loss of earning capacity consequences, as I am satisfied the plaintiff has done, he must now satisfy the statutory formula as contained in ss 325(2)(e), (f) and (g) of the Act, namely, whether he has a loss of earning capacity of 40 per cent of gross earnings, measured as set out in s 325(2)(f), and will permanently have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more of her gross earnings, as required by s 325(2)(e)(ii).
296The defendant submitted that there are jobs that the plaintiff could now undertake, or undertake with limited retraining, if he was motivated to look for work. Therefore, the defendant disputed that the plaintiff has satisfied the statutory formula.
297To satisfy the statutory formula in s 325(2)(e)(i) and (f) of the Act, the measure of the claimed loss of earning capacity requires a comparison of two matters:
(a) the gross income the plaintiff is earning, or is capable of earning, in suitable employment at the date of the hearing (“after injury earnings”); and
(b) the gross income the plaintiff was earning, or was capable of earning, “during that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity had the injury not occurred”[300] (“without injury earnings”).
[300]Yirga-Denbu v Victorian WorkCover Authority [2018] VSCA 35, [70].
298As mentioned, the parties agreed the “without injury earnings” in the sum of $50,000, of which they agreed the 60 per cent would equate to a gross weekly figure of $600. Therefore, if the plaintiff now has a capacity for suitable employment that will be productive of “after injury earnings” of around $31,200 gross per annum based on the agreed gross weekly figure, then he fails to satisfy the formula and does not establish an entitlement to bring proceedings for pecuniary loss damages.
299Next, upon satisfying the statutory formula, the enquiry moves to s 325(2)(e)(ii) and whether the plaintiff has proved a loss of earning capacity that will permanently be productive of financial loss of 40 per cent or more.
300The issue to be resolved is a factual dispute as to the plaintiff’s “after injury earnings”. The starting point to the resolution of that dispute is the nature of the plaintiff’s injury along with the treatment he has required including his need for pain relieving medication, these being matters I have already addressed. The next step is to consider the plaintiff’s evidence of his impairment and impairment consequences – in this case, with a focus on work capacity – and whether that evidence is reliable and accepted.
301I find that there is no employment for which the plaintiff is suited having regard to the definition of suitable employment. In arriving at this finding, I have taken into consideration that the plaintiff is certified by his treating general practitioner with having no capacity for employment.
302I have considered that the plaintiff participated in, but failed, in an attempt to return to work in the laundry of his employer in October 2021. The plaintiff’s genuineness in his efforts at that return to work, and the suggestion that he lacked a desire to try alternative work more generally, was the subject of the defendant’s cross-examination with it being put to him that his attitude in avoiding efforts to find employment was reflected in his decision to stop attending Dr Hamimi because of his urgings that the plaintiff try to return to work.
303I have carefully considered the defendant’s submission but I am not persuaded by it. The plaintiff explained that he got fed up with the delays he experienced when attending Dr Hamimi, and for a person presenting with pain, one may appreciate the plaintiff’s attitude. Moreover, despite Dr Hamimi’s expression of urging, and in certifying the plaintiff fit for light duties, the plaintiff was not presented with other possible suitable employment options than the work in the laundry that he tried but failed. Also of note, is that despite Dr Brasier having also recommended an effort at return to work by the plaintiff, following the plaintiff’s unsuccessful attempt, Dr Brasier expressed the opinion that the plaintiff had no work capacity. Dr Mehr also recorded that the plaintiff’s back pain was gradually aggravated during the course of the two hour trial he undertook,[301] and he had experienced a lot of pain in his back and a good deal of pain that night. As the plaintiff explained matters, the pain was not just due to the heavy shoes he had been given to wear, but the “movement of folding the garments, and raising your arms and moving…”[302] I am not satisfied that the opinion of Dr Boffa alters my judgment about the plaintiff’s work capacity. The reason for Dr Boffa’s significantly altered opinion following his worksite attendance and assessment is hard to discern, but at any rate, the plaintiff’s efforts at work, proved unsuccessful.
[301]PCB 50.
[302]T 65, L 18-20.
304Dr Hafezi in October 2022 expressed the opinion that the plaintiff could return to alternate duties on restricted hours, but that the work would need to be of a type that was capable of accommodating his many limitations.
305Having already decided that the plaintiff’s presentation and the consequences identified on which he relies are manifestations of an organic injury, and are not due to abnormal illness behaviour, or depression, then the medical evidence is essentially uniform that the plaintiff has no work capacity or capacity for suitable employment.
306I have considered the value of the Recovre report dated 30 January 2023 and the jobs it identified.[303] Commendably, the report writer frankly observed that, “overall, and when considering both his education, training and experience, and noting the medical opinions, Mr Husaini is likely to be very restricted in terms of the range of employment options available to him within the open labour market.”[304] The author furthermore expressed the opinion that in order for the plaintiff to be able to regularly undertake the duties and tasks normally associated with the occupations represented by the identified jobs his “physical condition, and particularly his pain management and postural tolerance would need to improve…”[305]
[303] Exhibit D8.
[304]Exhibit D8, DCB 153.
[305] Exhibit D8, DCB 154.
307I am satisfied that the jobs of packer, forklift driver and production clerk are not suitable employment, with the first two jobs falling outside the plaintiff’s physical restrictions and the third job requiring clerical and computer skills which the plaintiff does not possess and I am satisfied could not be reasonably expected to be obtained by him.
308For the reasons expressed, the plaintiff is entitled to a certificate for both pain and suffering and economic loss.
309I will hear the parties on the form of final orders.
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