Hussain v Victorian WorkCover Authority
[2023] VCC 1123
•4 July 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Serious Injury List
Case No. CI-22-04146
| ZAKIR HUSSAIN | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE MACNAMARA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 June 2023 | |
DATE OF JUDGMENT: | 4 July 2023 | |
CASE MAY BE CITED AS: | Hussain v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1123 | |
REASONS FOR JUDGMENT
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Subject:SERIOUS INJURY
Catchwords: Workplace Injury Rehabilitation and Compensation Act 2013 ss 3, 325 and 327 – Serious injury application – Proven discogenic injury – Whether plaintiff’s pain and restriction are sufficient to establish “serious injury” – Whether 40 per cent loss of earning capacity
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013 (Vic); Accident Compensation Act 1985 (Vic)
Cases Cited:Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69; The Herald & Weekly Times Limited and Victorian WorkCover Authority v Jessop [2014] VSCA 292
Judgment: Leave to commence common law proceedings based on pain and suffering and economic loss
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mighell KC with Ms K Popova | Zaparas Lawyers |
| For the Defendant | Ms G-J Cooper | Minter Ellison |
HIS HONOUR:
Background
1Mr Hussain was born in Afghanistan in 1966. He and his family moved to Pakistan during his babyhood. He attended high school in Pakistan and obtained the degree Bachelor of Arts at the University of Balochistan (Plaintiff’s Court Book (“PCB”) 10-11, paragraphs 3 and 4). The subjects studied as part of the degree were Political Science, Urdu, and Islamic Studies (Transcript (“T”) 43, Line/s (“L”) 17-19). Mr Hussain said he speaks the languages Urdu, Hazaragi, and Persian (Ibid, L24). He said that he then worked “as a senior auditor” for a government body for 25 years (PCB 11, paragraph 5). According to his Senior Counsel, Mr Mighell KC, who appeared on his behalf with Ms Popova of counsel, his duties entailed comparing two lists to ensure that the proper salary payments were made to employees (T3, L21-213). Mr Mighell KC said to describe this role as that of auditor inappropriately aggrandises its importance (T4, L2-9).
2Mr Mighell KC explained his client’s migration to Australia in these terms. Mr Hussain was:
“seeking refuge in Australia in February 2012. He came here by boat, he was six months in detention, he then located to Shepparton for six months, and then Melbourne.” (T4, L10-13)
3Mr Hussain was employed in a number of manual occupations in Australia, including the role as “picker/packer at a chocolate factory” where he worked for seven months. He worked in a small furniture shop or factory for around five months (PCB 11, paragraph 7). He then commenced employment with a company known as Hardware Supply Pty Ltd, once again as a “picker/packer”. He said he was “employed as a casual but worked full-time hours”, commencing in August 2018 (PCB 11, paragraph 9).
4Mr Hussain said that during this time he was suffering from depression because he was separated from his wife and four children, who continued to reside in Pakistan. His general practitioner, Dr Khan, referred him for treatment to a clinic known as ‘Psychology for Change’ in March 2017. In 2019 he had investigations relative to a renal stone, and underwent a CT scan. He said this condition “resolved without significant treatment” (Ibid, paragraphs 10 and 11). He said he takes Micardis “to treat high blood pressure”. He also suffered pain in his wrists “due to the heavy lifting at work”, undergoing ultrasounds on both wrists in October 2019. This condition resolved without further treatment following his ceasing work as a result of the workplace injury which is the subject of this proceeding (PCB 11-12, paragraphs 11 and 12).
5The work of “picker/packer”, perhaps in contrast to the traditional image of such a role:
“required [Mr Hussain] to lift heavy objects including cabinets and shower screens. I would have to manually handle items to and from the pallets. I would often have to pick up heavy objects from ground level. I would spend most of my work day engaged in heavy lifting.” (PCB 12, paragraph 14)
6He said that he injured his lower back “because of the heavy lifting duties that I had at work”. Neither of the affidavits which he has made and filed in this proceeding discloses the precise circumstances of the event which caused this injury. According to a report from Mr Hussain’s general practitioner, Dr Shahroze Khan:
“On the 17th of October 2019, Zakir [Hussain] presented with complaint of severe lower back pain, progressively getting worse since the previous 5‑6 months. He said that his work involved repeatitive [sic] bending and lifting. He was unable to bend and his lower leg pain radiated down his legs.” (PCB 26)
7Mr Hussain said his doctor:
“advised me to stop work and go on WorkCover. I did not want to lose my job, so I kept working. I needed money to support my family and I was afraid that if I mentioned my back injury, I would lose my job. I did not want to go on WorkCover.” (PCB 12, paragraph 17)
8On 27 October 2019, Mr Hussain underwent a CT scan of his lumbar spine which included the following findings (inter alia):
“Degenerative changes are present throughout. The individual disc levels are as follows:-
L1/2:
Minimal annular bulging. Moderate facet hypertrophy. No impingement.
L2/3:
Minimal annular bulging. Moderate facet hypertrophy. No impingement.
L3/4:
Minimal annular bulging. Moderate facet hypertrophy. Foraminal narrowing is seen without definite impingement.
L4/5:
Mild annular bulging. Moderate facet and flavum hypertrophy. Foraminal narrowing is seen without definite impingement.
L5/S1:
Calcified disc bulge moderate in severity with moderate-to-severe facet and flavum hypertrophy. There is bilateral foraminal narrowing with impingement of both exiting L5 nerve root.
Mild degenerative change of the sacroiliac joints.
Conclusion:
Degenerative change is seen throughout worse at L5/S1 where there is impingement of the exiting LS nerve root in the foramen on both side.” (PCB 72)
9An MRI scan carried out 14 August 2020 reported, inter alia:
“L5/S1: Disc desiccation with moderate disc height loss. Moderate disc protrusion indents the anterior thecal sac and produces bilateral lateral recess narrowing as well as moderate bilateral foraminal narrowing. Mild facet joint degenerative change at L4/5 and L5/S1 bilaterally.” (PCB 73)
10Mr Hussain commenced physiotherapy treatment from Rany Louka in December 2019 (PCB 12, paragraph 19). Also at the end of 2019 he flew to Pakistan to visit his mother, who was “very ill”. He said he “found flying to and from Pakistan to be very difficult and painful, despite the assistance of pain medication.” (PCB 13, paragraph 20) Mr Hussain says he had twice-weekly physiotherapy “for several months”, but his lower back pain worsened in April 2020. In June 2020, according to Mr Hussain:
“I was asked to leave work to obtain a Covid-19 test. By that time, my back pain was so bad that I was going to have to stop work. Ultimately, my employment was terminated because I did not provide the documentation to support a negative Covid-19 test, but in any event I would not have been able to return to work because of my back injury. I have not been able to work since this time in any capacity.” (PCB 13, paragraph 24)
11Once again, the precise circumstances of Mr Hussain’s cessation of work are not disclosed in either of his affidavits.
12Dr Khan referred Mr Hussain to a neurosurgeon, Dr Hazem Akil, who reported to Dr Khan in a letter dated 23 December 2020 that:
“just roughly over a year ago [Mr Hussain] started feeling pain in his lower back radiating to both legs following what he describes as an attempt to lift a heavy cabinet.” (PCB 35)
13Dr Akil continued:
“Given that the conservative management is not helping over the past 12 months, then surgery to remove the disc might be helpful and might help in reducing his leg pain and making him walk further distances.” (PCB 36)
14Mr Akil also referred to a proposed consultation with Dr Ali Kian Mehr “for further discussion with regard to his pain management” (PCB 36).
15Mr Hussain said that Dr Akil could not give him any assurance that surgery would help. Mr Hussain said:
“I do not want to have surgery and I do not want to have injections.” (PCB 13, paragraphs 25-27)
16Mr Hussain also saw Dr Ali Kian Mehr in December 2020. Dr Mehr, who describes himself as specialising in “rehabilitation medicine and neurophysiology”, sought to transition Mr Hussain from the painkiller Tramadol to a Norspan patch (PCB 37). Mr Hussain said he was also referred to a psychologist, Ms Shagufta Riaz, whose treatment he found “helpful” (PCB 13, paragraph 28). He was also referred to a Dr Usman Riaz, psychiatrist.
17Mr Hussain had lodged a claim for compensation under the WorkCover scheme (PCB 21-22), which the WorkCover insurer accepted by letter dated 17 November 2020, on the basis of an injury occurring on 16 June 2020 (PCB 23-25). The insurer approved the reasonable cost of psychology and psychiatric services relative to this injury by notice dated 23 February 2022 (Defendant’s Court Book (“DCB”) 9-11). However, the insurer’s pain management consultant, Precision Ascend, advised by letter dated 18 January 2022 that Mr Hussain “presented with a very high level of psychological distress making him unsuitable to participate in the pain management program at this time.” (DCB 8) In the event, Mr Hussain did not consult the psychiatrist Dr Usman Riaz. He said when he approached the psychiatrist’s practice he was told that the doctor was overseas and he would be informed when the doctor had returned (T25, L16-20). He said he never received any further advices, despite two follow-up telephone calls (Ibid, L21-23).
18There was a further attempted referral for psychiatric treatment which was refused by the insurer on 13 April 2023 (T25, L24 – T26, L3).
19According to Mr Hussain’s affidavit of 25 May 2022:
“I remain under the care of Dr Mehr, Ms Riaz and Dr Khan. I continue to try and manage my back pain by taking Palexia, Celebrex and Baclofen. I no longer take Lyrica, Gabapentin, Tramadol or Mobic.” (PCB 14, paragraph 31)
20He described his pain as follows:
“I continue to experience constant pain in my lower back. The pain radiates to my buttocks, and down both legs to my little toe, and the two toes next to it. The severity of the pain varies, but tends to be worse at night time. I struggle to sit, stand or walk for prolonged periods because of my back pain, and any task that requires me to bend, lift or twist I find very difficult. I only get a little pain relief from the medication that I take.” (PCB 14, paragraph 32)
21He said his back pain worsens if he has to stand in one place. He finds it hard to bend, and difficult to dress himself. Before the accident he could help his wife with housework and cooking, and could mow a small lawn. Now one of his sons has had to take over gardening duties, and he cannot render housework assistance to his wife (Ibid, paragraph 34). He said he is limited in the length of time he can drive “due to the limits I have sitting” (Ibid, paragraph 35).
22In the affidavit, he complained that he cannot sleep without pain medication, and would only get “two or three hours’ sleep per night.” (PCB 14-15, paragraph 36) He said he used to be able to play soccer at social events with friends, but can no longer do this (PCB 15, paragraph 37). He complains that whilst he used to enjoy watching movies at home, he can no longer concentrate:
“my mind tends to wander and think about the pain, and I have to move around so often that I struggle to follow the storyline.” (PCB 15, paragraph 38)
23He also complained of prejudice to his sex life as a result of erectile dysfunction which he believes to be “due to the medication” (Ibid, paragraph 39). He said he resents being unable to be an active grandfather, being unable to play with his young grandson and granddaughter (Ibid, paragraph 40).
24In a supplementary affidavit made 9 May 2023, he stated that his first affidavit was in error in suggesting that he had mowed the lawn at home before his accident. Rather, he had worked in the garden (PCB 17, paragraph 3). He said he commenced a pain management program with Advance Health Care but did not persist with it after two months because he “saw no benefit from it” (PCB 17, paragraph 4).
25By May 2023 he was back on Tramadol, usually taking one tablet of 100mg every day, but sometimes two. He commented, “I find that the Tramadol is not that effective in relieving my pain.” (PCB 18, paragraph 5) He said that his back pain felt “a bit more severe overall” than it was when he made his first affidavit; Tramadol made him feel dizzy; and “My back pain distracts me, I can’t focus on much. I have become forgetful. I feel fed up with life.” (PCB 18, paragraphs 6‑11)
26As to his employment prospects, he said:
“I have not returned to work. My back pain prevents me from working in manual work.
I don’t know how to use a computer. My English is not very good.” (Ibid, paragraphs 12-13)
27Mr Hussain was cross-examined upon his statement that he had completed two months of a pain management program. He was taken to a letter dated 4 March 2023 from Advance Healthcare, who reported to Dr Khan, Mr Hussain’s treating general practitioner, that as at this date:
“Mr Hussain has now completed the 4-week pre-program component of his pain management program at our Dandenong clinic.” (DCB 169)
28In a further letter dated 15 March 2023, Advance reported to Dr Khan that:
“Mr Hussain started the pain management program with Advance Healthcare, however, has had difficulties with keeping up with the frequency of appointments.
He has expressed concerns that he will not be able to continue during the month of Ramadan. Therefore, he has decided to pause his program this period.” (DCB 170)
29It was common ground that Mr Hussain abandoned the program at this stage. Mr Hussain did not resile from his statement that he had persisted with the program for two months, but the contemporary documentary evidence would suggest that he undertook the preliminary four weeks and a fortnight of additional treatment at most. I accept the documentary material as being likely more reliable than Mr Hussain’s admittedly faulty memory, which he attributes to his injury.
This proceeding
30According to his Originating Motion commencing this proceeding, dated 29 September 2022, Mr Hussain:
“seeks leave to bring Common Law proceedings for pain and suffering and pecuniary loss pursuant to section 335 of the Workplace Injury Rehabilitation and Compensation Act 2013 for injuries sustained in the course of and/or throughout the course of and/or as a result of his employment with Hardware Supply Pty Ltd.” (PCB 8)
31This requires a finding that Mr Hussain has suffered a “serious injury”. According to his Senior Counsel, Mr Mighell KC:
“The application is brought under sub-paragraph (a) of the definition of serious injury; that is impairment to the spine.”
32This paragraph is the only element of the definition relied on (T2, L23‑29).
Expert opinion
33Throughout the relevant period, Mr Hussain has been under the care of his treating general practitioner, Dr Khan, who provided a number of reports. In the first of those reports, apparently provided to Mr Hussain’s solicitors at their request and dated 10 September 2020, he recorded the history already summarised, and stated as at that date:
“Zakir takes Lyrica 75 md bd and Tramadol for severe lower back pain. He continues to see physiotherapist for stregthening [sic] exercises and rehabilitation. He is unable to bend, unable to lift more than 3 kgs, unable to push/pull more than 3 kgs. He is unable to sit/stand for more than 15-20 minutes. He is unable to drive for more than 20 minutes.” (PCB 28)
34He described referrals which he made, and concluded:
“Zakir is currently unfit for any work. He needs to continue physiotherapy and take pain killers. His lower back pain is a result of repeatitive [sic] heavy lifting and bending at work. He needs to see specialist for further management.” (PCB 29)
35In a second report, dated 20 February 2023, after covering the same ground, Dr Khan said that:
“It is difficult to say whether Zakir will benefit from a surgery as his lower back disc disease is unlikely to improve. His injury is consistent with the stated cause. He is unfit for pre-injury duties and this will not change and it is unlikely that he will return to his pre-injury employment considering his past employment experience, training and education.” (PCB 31)
36He observed that Mr Hussain was “under Cognitive Behavioural therapy”, noting:
“Chronic pain may worsen his mental health more so it would be difficult for him to work in any capacity in future.” (PCB 31)
37He noted that the low back injury prevented Mr Hussain from taking part in sports and leisure activities and affected his personal and daily life (PCB 31).
38Following the first referral by Dr Khan, Dr Mehr, a rehabilitation medicine and neurophysiology specialist, said of Mr Hussain:
“He is overweight. His gait is normal but slow. He can toe stand and heel stand. The range of motion of the lumbar spine is limited to 60° of flexion and extension is 0°. Facet joint loading is quite painful. There is tenderness on the lower lumbar midline and paraspinal region. Range of motion of hip joints is normal and pain-free. SLR of the left side is positive at 45° to 50°. Neurological examination of lower limbs did not show any major neurological deficit apart from absence of Achilles reflex. The Achilles reflex on the right side is elicitable, but on the left side it could not produce response.” (PCB 33)
39According to the doctor:
“[Mr Hussain’s] sitting tolerance is 30 minutes, standing and walking tolerance is 30 minutes and driving tolerance is 20 to 30 minutes. He cannot bend. He cannot lift. He cannot twist. He cannot do any domestic activities of daily living. He is independent with personal activities of daily living.” (PCB 33)
40Neurosurgeon Dr Hazem Akil reported to Dr Khan by letter dated 23 December 2020 that upon examination Mr Hussain was found to have “marked central obesity” but did not have “any particular sensory or motor deficit in his lower limbs, however I did notice that he has bilaterally absent ankle reflexes.” (PCB 35) As previously noted, Dr Akil suggested surgery but offered no guarantees of relief of symptoms (PCB 36).
41Dr Mehr provided a further report to Dr Khan by way of letter dated 11 March 2021 following a further consultation on that day. He made no new findings, noting that at this stage Mr Hussain’s medication included Lyrica, Tramadol and Micardis (PCB 37). Dr Mehr provided a lengthy report to Mr Hussain’s solicitors by way of letter dated 17 January 2023, reviewing the consultations which he had had with Mr Hussain over the years. He noted that in the course of the initial consultation with Mr Hussain on 3 December 2020 he had recommended that Mr Hussain continue with physiotherapy and exercise and “explained to him that it takes time to get better with this pain and it may take up to 12 months.” He suggested to Mr Hussain that he “gradually reduce tramadol” (PCB 40). The doctor diagnosed:
“Chronic lumbar spine pain which is aggravation of lumbar spondylosis and is a discogenic pain at the L5/S1 level as a result of disc protrusion.” (PCB 41)
42The doctor said, “I do not think he is suitable for pain management program”. According to the doctor, the prognosis for Mr Hussain’s chronic pain was “guarded due to chronicity of the condition and lack of response to provided treatments.” He said that the prospects of return to pre-injury work were “poor due to significant physical limitation and risk of aggravation of the radiculopathy.” He said the prognosis for return to alternative duties was also guarded because of “significant physical limitation and also lack of suitable qualification and experience and significant language barrier.” The doctor said that Mr Hussain’s condition was “stable and will not change for foreseeable future” (PCB 42). The doctor concluded that Mr Hussain “had no capacity for work” (PCB 43).
43Neurosurgeon Mr Girish Nair examined Mr Hussain for medico-legal purposes on 21 March this year and provided a report to Mr Hussain’s solicitors dated 19 April. According to Mr Nair, “The diagnosis is of L5-S1 disc prolapse with bilateral S1 radiculopathy”, which he said was consistent with the stated cause, viz Mr Hussain’s employment with Hardware Supply Pty Ltd (PCB 51). According to Mr Nair, Mr Hussain “does not have capacity to engage in any activity that involves repetitive bending, twisting, and turning, lifting of objects or sitting and standing for a long periods of time.” As to various possible alternative types of employment, he said these were possible “if there are provisions for adequate breaks and for change of posture, [and therefore] it is reasonable to explore the possibility of him being able to work as a ticket seller or concierge.” (PCB 52) As to the maximum number of hours which Mr Hussain might be able to undertake in alternative employment, Mr Nair said:
“Unfortunately, I am not able to provide specific response to this. I would suggest that the option would be for him to have such options evaluated with the assistance of an occupational therapist, but certainly there is always a possibility that he may have flare up of his symptoms once he starts on his work and I am not able to predict the likelihood of this happening.” (PCB 53)
44Dr Philip Sheard, orthopaedic surgeon, provided a report for medico-legal purposes to Mr Hussain’s solicitors by letter dated 12 May 2023. His diagnosis was “a prolapse at L5/S1 disc with compression of both L5 nerve roots at that level”, which diagnosis, he said, was “consistent with the history described on the client’s employment” (PCB 59). Asked about various alternative forms of employment, including ticket-seller and concierge, he said:
“In view of this gentleman’s age, education and poor English along with his injury along with the fact that he has no patience and feels angry. I feel like he is unable to do any of the jobs described. He is only able to sit for a short time, is unable to lift anything from above his head or from floor level of any weight.” (PCB 59)
45Dr Kilner Brasier, an occupational and environmental specialist physician, examined Mr Hussain for medico-legal purposes on 13 April 2023. He provided a report and assessment to Mr Hussain’s solicitors by letter dated 17 May 2023. Dr Brasier observed, “Mr Hussain is a poor historian with limited recollection of the events leading up to his injury”. On examination, he found him “restless throughout” with a “depressed affect” (PCB 64). The doctor found that:
“Lumbar spine movement is globally markedly restricted especially lateral movement to the left being restricted to only 15°. He is able to forward flex to the extent that his hands approximate the level of his knees approximately 50° range of movement. Extension is also restricted to only about 15° range of movement.” (PCB 64)
46The doctor observed there were no signs of radiculopathy (PCB 64).
47The doctor said “In my opinion Mr Hussain has a work capacity to work as an interpreter/Telephone interpreter”, and “would be able to work four hours three non-consecutive days per week for a total of 12 hours per week as an interpreter.” (PCB 66)
48The doctor provided a supplementary report by letter dated 28 May 2023. He noted “There was no evidence of any radiculopathy”, diagnosing “an aggravation of lumbar spondylosis resulting in an L5/S1 disc protrusion.” (PCB 70)
49Scarcely more than a month after the reported date of injury, viz on 23 July 2020, the WorkCover insurer had Mr Hussain assessed by occupational and environmental physician Dr Umberto Boffa, who provided a report to the insurer of the same date. Dr Boffa’s diagnosis was:
“The worker is a 54-year-old casual warehouse worker with low back pain related to aggravated lumbosacral facet joint arthropathy without radiculopathy and not currently working.” (DCB 46)
50He said:
“I am unconvinced of any medical reason for the worker’s sudden loss of capacity on or about 16/6/20 although I accept that he probably did have low back dating back 12 months related to CT changes seen last year.” (DCB 47)
51Dr Boffa expressed these views without the benefit of the MRI scan commissioned by Dr Khan the following month, namely August 2020.
52Dr Boffa provided a supplementary report by way of letter dated 6 August 2020 to the WorkCover insurer. He confirmed his initial diagnosis. He observed that before the cessation of employment the only medical leave which Mr Hussain had taken related to a condition suffered by his wife rather than by himself. He continued:
“There would appear to be no new injury or sudden aggravation of pre-existing lumbosacral facet arthropathy on the last day he worked.” (DCB 49)
53The doctor continued:
“On the balance of probabilities, I do not consider the worker has ever had an incapacity for employment over the 12 months since the alleged injury.” (DCB 49)
54In yet a further supplementary report by way of letter to the insurer dated 6 October 2020, the doctor said:
“I do not consider the worker suddenly lost capacity for employment on or about 16/6/20 but rather that he has come to the realisation he is no longer up to preinjury duties, in which case he should consider re-training and changing job to a less strenuous position.” (DCB 51)
55The insurer sent Mr Hussain for a medico-legal assessment with Dr Michael Baynes, a specialist in occupational medicine, which assessment was made on 1 December 2021. The doctor reported on his assessment by letter of the same date. The doctor diagnosed:
“a chronic pain syndrome associated with chronic lower back pain radiating into both legs in association with a L5/S1 disc protrusion with bilateral lateral recess narrowing. However, there is no objective evidence of radiculopathy on clinical examination.” (DCB 54)
56The doctor continued:
“I do not believe the worker has a current work capacity based on his level of pain and restriction of postural tolerances, and the worker’s age, education, skills and English language and transferable skills.” (DCB 55)
57He said, however:
“The current work incapacity will not necessarily continue indefinitely. However, I would be hopeful that after he has completed a pain management program that this will increase his capacity for alternative duties.
...
I believe that there are associated psychosocial factors impacting upon his condition and also note that he is job separated.
...
I note the vocational reports identified several employment options including crossing supervisor, weighbridge operator, packer (light items), stock clerk, ticket seller, and product assembly (light items). At this point I do not believe that he has a capacity for these roles from a physical point of view.
...
I believe referral into a pain management program would be appropriate as planned.” (DCB 55)
58Dr Baynes concluded:
“I believe the worker is fit to participate in occupational rehabilitation services and consideration should be given to retraining to increase his English language skills and coordination of a return to work with the planned pain management program would also be appropriate.” (DCB 56)
59On 27 February 2023, Mr Hussain attended an assessment at the request of the WorkCover insurer conducted by Dr Clayton Thomas, who describes himself as a consultant in rehabilitation and pain medicine. In a letter to the insurer dated 1 March 2023, Dr Thomas said:
“[Mr Hussain] is suffering from symptomatic spondylosis lumbar spine with nonverifiable leg complaints, left more than right.
... I would accept that he cannot return to his preinjury work duties as a picker at a hardware store. I think he probably could return to preinjury work hours.
... He could perform work which has been modified to avoid the lifting above chest height and below waist height. Lifting between waist and chest height would be reasonable 15 kg.
He could push and pull an easily manoeuvred trolley 20 kg.
Within these limitations he could work full preinjury work hours.” (DCB 76)
60As to alternative occupations, Dr Thomas said that Mr Hussain could work as a weighbridge operator and a packer of light items, though:
“There would have to be some flexibilities so that he can sit, stand and work within the limitations I placed on him ...” (DCB 77)
61He felt that Mr Hussain could also work as a stock clerk or a ticket seller or as a product assembler “As long as it was compliant with my limitations ...” Dr Thomas was concerned as to the use of Tramadol 100mg. He said “Tapering the medication replacing it with simple over-the-counter analgesics would be preferable.” He observed “that any aggravation of his back that occurred at work has now been overtaken by the constitutional aspects of his lower lumbar spine condition.” The restrictions he advocated were:
“Sitting 45 minutes, standing 30 minutes, walking 45 minutes, bending occasionally below waist height and above chest height. Lifting 15 kg waist to chest height. Driving 35 minutes. Pushing and pulling an easily manoeuvred trolley 20 kg.” (DCB 77)
62In a supplementary report dated 26 April 2023, Dr Thomas said that further suitable employments for Mr Hussain would be:
“1. Interpreter/telephone interpreter (Hazaragi, Dari, Urdu, Persian).
2. Translator.
3. Bookkeeper.” (DCB 78)
63He said these were all “sedentary positions and given his previous work history, education and training, all are appropriate and reasonable for him and all are compatible with limitations I placed on him.” (DCB 78)
Legal considerations
64Section 327 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) authorises a “worker” to recover damages “in respect of an injury arising out of, or in the course of, or due to the nature of, employment if the injury is a serious injury”. Mr Hussain’s case is that he has sustained a serious injury within the meaning of the Act.
65Section 325 of the Act defines the phrase “serious injury” as follow:
“(a) permanent serious impairment or loss of a body function; or
(b) permanent serious disfigurement; or
(c) permanent severe mental or permanent severe behavioural disturbance or disorder; or
(d) loss of a foetus.”
66Mr Hussain’s case is that he has suffered a serious injury within the meaning of paragraph (a) of the definition.
67Sub-section (2) of s325 makes additional provision for the operation of this definition for the purposes of Part 7. The lengthy sub-section provides as follows:
“(2)For the purposes of the assessment of serious injury in accordance with section 335(2) and (5)—
(a)the following definitions apply—
"foetus" has the same meaning as in section 214(2);
"income from personal exertion" has the same meaning as in section 6(2) of the Transport Accident Act 1986; s. 325
(b)the terms serious and severe are to be satisfied by reference to the consequences to the worker of any impairment or loss of a body function, disfigurement, or mental or behavioural disturbance or disorder, as the case may be, with respect to—
(i)pain and suffering; or
(ii)loss of earning capacity—
when judged by comparison with other cases in the range of possible impairments or losses of a body function, disfigurements, or mental or behavioural disturbances or disorders, respectively;
(c)an impairment or loss of a body function or a disfigurement is not to be held to be serious for the purposes of section 335(2) unless—
(i)the pain and suffering consequence; or
(ii)the loss of earning capacity consequence—
is, when judged by comparison with other cases, in the range of possible impairments or losses of a body function, or disfigurements, as the case may be, fairly described as being more than significant or marked, and as being at least very considerable;
(d)a mental or behavioural disturbance or disorder is not to be held to be severe for the purposes of section 335(2) unless—
(i)the pain and suffering consequence; or
(ii)the loss of earning capacity consequence—
is, when judged by comparison with other cases, in the range of possible mental or behavioural disturbances or disorders, as the case may be, fairly described as being more than serious to the extent of being severe;
(e)if a worker relies upon paragraph (a), (b) or (c) of the definition of serious injury in subsection (1), the Authority or self-insurer must not issue a certificate under section 335(2)(c), and a court must not grant leave under section 335(2)(d), on the basis that the worker has established the loss of earning capacity required by paragraph (b) unless the worker establishes in addition to the requirements of paragraph (c) or (d), as the case may be, that—
(i)at the date of a decision under section 335(2)(c) or at the date of the hearing of an application under section 335(2)(d), the worker has a loss of earning capacity of 40 per cent or more, measured (except in the case of a worker referred to in item 1 of Schedule 2 or a worker under the age of 26 years at the date of the injury) as set out in paragraph (f); and
(ii) the worker (including a worker referred to in item 1 of Schedule 2 or a worker under the age of 26 years at the date of the injury) will, after the date of the decision or of the hearing, continue permanently to have a loss of earning capacity which will be productive of financial loss of 40 per cent or more;
(f)for the purposes of paragraph (e)(i), a worker’s loss of earning capacity is to be measured by comparing—
(i)the worker’s gross income from personal exertion (expressed at an annual rate) which the worker is—
(A)earning, whether in suitable employment or not; or
(B)capable of earning in suitable employment—
as at that date, whichever is the greater, and—
(ii)the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion during that part of the period within 3 years before and 3 years after the injury as most fairly reflects the worker’s earning capacity had the injury not occurred;
(g)a worker does not establish the loss of earning capacity required by paragraph (b) if the worker, taking into account the worker’s capacity for suitable employment after the injury and, where applicable, the reasonableness of the worker’s attempts to participate in rehabilitation or retraining—
(i)has; or
(ii)after rehabilitation or retraining, would have–
a capacity for any employment including alternative employment or further or additional employment which, if exercised, would result in the worker earning more than 60 per cent of gross income from personal exertion as determined in accordance with paragraph (f) had the injury not occurred;
(h)the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purposes of paragraph (c) of the definition of serious injury and not otherwise;
(i)the physical consequences of a mental or behavioural disturbance or disorder are to be taken into account only for the purposes of paragraph (c) of the definition of serious injury and not otherwise;
(j)the assessment of serious injury must be made at the time that the application is heard by the court, unless sections 348 and 358 apply;
(k)the monetary thresholds and statutory maximums specified by or under section 340 must be disregarded for the purposes of the assessment of serious injury.”
68The phrase “suitable employment” is defined in s3:
“suitable employment, in relation to a worker, means employment in work for which the worker is currently suited—
(a)having regard to the following—
(i) the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, the certificate of capacity supplied by the worker;
(ii) the nature of the worker’s pre injury employment;
(iii) the worker’s age, education, skills and work experience;
(iv) the worker’s place of residence;
(v) any plan or document prepared as part of the return to work planning process;
(vi) any occupational rehabilitation services that are being, or have been, provided to or for the worker;
(b)regardless of whether—
(i) the work or the employment is available; or
(ii) the work or the employment is of a type or nature that is generally available in the employment market;
and, for the purposes of Part 4, includes—
(c)employment in respect of which the number of hours each day or week that the worker performs work, or the range of duties the worker performs, is suitably increased in stages in accordance with return to work planning or otherwise; and
(d)employment the worker is undertaking or that is offered to the worker, regardless of whether the work or the employment is of a type or nature that is generally available in the employment market; and
(e)suitable training or vocational re-education provided by the employer, or under arrangements approved by the employer (whether or not the employer also provides employment involving the performance of work duties), but only if the employer pays an appropriate wage or salary to the worker in respect of the time the worker attends suitable training or vocational re-education”.
Conclusions
Pain and suffering
69The major component of the contentions on behalf of the defendant WorkCover Authority were directed to the issue of whether Mr Hussain had suffered a serious injury in terms of economic loss as provided for in the Act. I enquired of Ms Cooper, counsel for the Authority, what her client said as to whether Mr Hussain had suffered a serious injury in terms of pain and suffering. She replied:
“in respect of pain and suffering, all of the medical practitioners agree that the plaintiff can’t return to pre-injury duties. However, beyond that, in my submission, given the plaintiff’s catastrophising ... of his pain, it’s my submission Your Honour can’t be satisfied that he has any significant physical limitations beyond that. And it’s my submission that his inability to return to pre-injury duties on its own is not enough for him to reach the pain and suffering threshold.” (T77, L22-31)
70This was the sum of the defendant’s contentions on the issue of pain and suffering.
71The evidence of the MRI scan establishes that there is significant pathology accounting for the pain and restrictions complained of by Mr Hussain. No medical expert denied the reality of this discogenic injury, nor in a general sense that it was productive of significant pain and restrictions. Again, all practitioners agreed that this injury inflicted very significant restrictions upon what Mr Hussain could do either as part of gainful employment or in his personal life.
72The defendant’s experts indicated the need for a wide range of restrictions as to bending, twisting, lifting etc. These represent a very significant diminution in what Mr Hussain can do, whether viewed by reference to his personal life or potential future employment. These consequences may be “fairly described as being more than significant or marked, and as being at least very considerable”.
73Mr Mighell KC referred to a decision of the Court of Appeal consisting of five judges (Buchanan, Nettle, Ashley, Kellam and Dodds-Streeton JJA) in Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592, in the context of the application of the same definitions in the Accident Compensation Act 1985, where, in determining to dismiss an appeal from a judgment of this Court on a “serious injury” issue, her Honour Dodds-Streeton JA said:
“Secondly, the reasons for judgment fail to deal at all with the issue of, and evidence concerning, the appellant’s persistent pain, to which he deposed in three successive affidavits, and on which he was cross-examined. The chronic pain was a prominent feature of the appellant’s case. The endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence.” (Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592 [199])
74The burden of Ms Cooper’s cross-examination of Mr Hussain was that he was exaggerating his pain levels and the restrictions which they inflicted upon him. She was not, as I understand it, suggesting that his exaggeration was in the nature of malingering, but rather that, because of his negative attitude to further treatments such as pain management courses or surgery, and his resistance to rehabilitation generally, he perceived his pain as being worse than it really was. Perceptions of pain are by their very nature subjective. The frequent characterisation of pain by reference to an “out of 10” scale invites a subject to rate his or her pain at a particular time by reference to what the subject conceives is the worst possible pain level, which would score 10. A person who has led a relatively pain-free life would necessarily postulate a much lower bar for “10” than for one who has suffered a long and pain-racked life.
75There are ample references to Mr Hussain’s having a “depressed” affect in the various reports. This accurately characterises his frame of mind. That, and perhaps an alienation from the society in which he lives because of linguistic limitations, no doubt has a tendency to make his pain bulk large in his perception. As I would understand the purpose of pain management courses, it is in effect to distract the sufferer from continued rumination on his or her pain and direct the mind towards more positive elements of life. For one reason or another, this objective has not been attained in Mr Hussain’s case.
76It is difficult to credit that his pain is constant, unremitting, and worsening. Even discounting it, however, by reference to these considerations, its pain and suffering consequences can be regarded as very considerable. I am fortified in that view by the passage quoted from the judgment of Dodds-Streeton JA in Kelso’s case. I am likewise fortified in the conclusion by the remarks of Maxwell P in Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69 [45] where his Honour said:
“It is, in my view, a matter of great significance for a person to be denied, seemingly for the rest of his life, the ability to enjoy uninterrupted sleep. Mr McKinnon often experiences multiple painful awakenings in the course of a single night. As his counsel submitted, that is properly to be regarded as constituting a very considerable diminution in Mr McKinnon’s enjoyment of life, to say nothing of the effect which sleep deprivation must have on his ability to enjoy the activities of daily life.”
77Mr Hussain gave graphic evidence of the disturbance to his sleep which continues on a chronic basis. I do not recollect that that evidence was challenged in cross-examination.
78In my view, as regards the pain and suffering consequences of Mr Hussain’s workplace injury, it must be judged a “serious injury” for the purposes of the Act.
Economic loss
79The effect of the provisions quoted above is that an injury will not be adjudged “serious”, with the consequence that common law proceedings may be brought with respect to it by reference to economic loss, unless the earning capacity of the plaintiff is diminished by not less than 40 per cent, so that by reference to post-accident earning capacity it is no more than 60 per cent or less of the pre-accident earning capacity. The case on behalf of Mr Hussain is that he is unfit for any employment. The defendant Authority’s case is that despite his pain and physical restriction, he does have significant retained earning capacity, representing more than 40 per cent of his pre-accident earning capacity, so that his injury cannot be adjudged “serious” in that respect.
80The defendant Authority, via its counsel, Ms Cooper, relied on reports from two consultancies, namely ‘WorkFocus’ and ‘CoWork’. These consultancies identified a number of alternative occupations which were said to be “suitable employment” for Mr Hussain. Not all of them were pursued in cross-examination. In my understanding, the case advanced by the defendant Authority is to be regarded as defined by the scope of its counsel’s cross-examination.
81WorkFocus identified as suitable employment “packer (light items) with a provision of a stool” (DCB 84-85). This can be seen to be a “scaled down” version of the work which Mr Hussain undertook at Hardware Supply Pty Ltd, which all medical experts are agreed is now beyond his physical capacity. Amongst the features of this occupation identified by WorkFocus which could be regarded as problematic in light of the evidence are the following:
“–Stands constantly when working;
– Stretching across is a frequent requirement for packers;
– Squatting or crouching movements may be required on an occasional basis;
– Bending is frequent where lifting or leaning over packing equipment is required;
– Twisting of the body or neck may be required on an occasional to frequent basis;
– ...
– Lifting and carrying is required when moving packed containers and when bringing product to be packed to the packing area;
– Repetitive hand/arm movements are required constantly for many packing roles;
– ...” (DCB 84-85)
82The evidence as to pain and the restrictions described by both the plaintiff’s experts and the defendant Authority’s experts demonstrates that these requirements would be contraindicated for Mr Hussain. It is a common experience that when back pain flares up, any stretching or twisting is most uncomfortable and aggravates and intensifies the pain.
83Another possible alternative occupation identified by WorkFocus was “ticket seller – with a provision of a stool”. Assuming that employment as a ticket seller were offered, the physical requirements of the role as described by WorkFocus (DCB 85-86) would not appear to be problematic. However, the last of those is as follows:
“–Use of office hand-held equipment such as computers, pens, calculators and staplers will be required on a regular basis.” (DCB 86)
84Mr Hussain has no computer skills. Mr Hussain’s evidence did not deal with his computer skills or lack thereof. His Senior Counsel, Mr Mighell KC, however, said of Mr Hussain’s work in Pakistan “no computer – he doesn’t own a computer. He’s never worked with a computer.” (T3, L29-30) Relative to proposed alternative occupations, Mr Mighell KC raised the issue of computer use (T45, L27-31). During his opening, Mr Mighell KC said of his client “He’s got four children, and they don’t have a computer in his home. He says they use the – the children use their phones. But he’s never learnt it, never worked ...” (T17, L28-31). In her closing submissions, Ms Cooper, on behalf of the Authority, said “I know that the plaintiff has said he has little to no experience with computers. But again, there’s no suggestion here that the plaintiff would need to do a computer course in order to become suitable for this role [ticket seller] even though English is.” (T66, L2-6) In today’s world, in commerce administration and wider society, computers have become ubiquitous. Many people in Mr Hussain’s situation have been able to “upskill” by taking computer courses. However, there is an old saying, “You can’t teach an old dog new tricks.” Mr Hussain is now in his late fifties. Many people are able to launch forth on new careers and new intellectual pursuits after retirement, and therefore a decade or more older than Mr Hussain is, but the ability to launch into new intellectual or skilled spheres of activity in old age or late middle-age is by no means universal. Having read the expert reports and observed Mr Hussain giving his viva voce evidence, I am not persuaded that he is amongst the minority who can be taught “new tricks” at his age.
85WorkFocus also identified as possible alternative employment “concierge – with a provision of a stool” (DCB 96). Again, the physical requirement of this role, assuming its availability, would appear to be within Mr Hussain’s capacities. Once again, however, the role would include computer work, and WorkFocus recommended that Mr Hussain undertake an English course. His account in court, via an interpreter, in his affidavit (PCB 11, paragraph 5) and to various examiners and consultants, is that his English is not good. He was generally accompanied by an interpreter or family member at consultations and assessments.
86Ms Cooper drew attention to a passage in the CoWork report (DCB 109) where the consultant sought to “draw out” Mr Hussain on his English-language abilities. She recorded him as saying “I’m happy to continue in English and if I need the interpreter, I’ll ask.” Mr Mighell KC contended that the CoWork report should not be accepted because some seven issues identified at paragraph 3.8 (DCB 117) as “Potential Barriers to Employment” indicated a significant bias against Mr Hussain on the part of the consultant who wrote the report. He said it was significant that the potential barriers identified did not include his admitted pain and restriction.
87Mr Hussain’s limited English-language skills are surprising. As noted above, he claims expertise in three languages. This would place him intellectually far ahead of most members of the Australian community, whose only linguistic expertise is in English. Yet he has lived in Australia for over a decade, in the midst of an English-speaking community. An inability to speak English with any facility, which according to Mr Hussain accurately describes his situation, must necessarily alienate him from the wider community. Migrants, whether refugees or not, from the Indian subcontinent customarily have superior facility in English to migrants from other societies which have not in the relatively-recent past formed part of the British Empire. In my understanding, English is still widely spoken in Pakistan. When Mr Hussain worked at Hardware Supply Pty Ltd his manager or foreman gave his instructions in English (T28, L20-23). This was the same in his other jobs in Australia (Ibid, L25-27). However, he said that many of his fellow employees were “Hazara men” who would assist with translation.
88I accept the accuracy of Mr Hussain’s description of his English-language capacities. Further, even discounting his pain and restriction in the manner which I concede may be necessary, I accept that his chronic pain would also constitute an obstacle to his retraining for other occupations, or in the English language, or in computers, because of its effect upon his powers of concentration. The strong pain-relief medications which he takes are also prejudicial in that regard.
89Dr Clayton Thomas, one of the defendant Authority’s experts, opined that Mr Hussain could undertake work as an interpreter for a total of 12 hours per week as an interpreter on three non-continuous days, e.g., Monday, Wednesday and Friday.
90Mr Mighell KC challenged the qualifications of Dr Thomas. He put in his curriculum vitae (PCB 81-84), which he said supported the view that Dr Thomas was not qualified as an occupational physician. He said, however, that even were Dr Thomas’s views on this subject to be accepted, Mr Hussain would still be found to have suffered a serious injury viewed in terms of economic loss. The effect of the definitions, he said, was that a finding of serious injury in this regard should be made unless the post-accident earning capacity were found to be more than 60 per cent of the pre-accident capacity. This appears to be an accurate interpretation of the statutory provisions. He said that Mr Hussain’s pre-accident weekly earning capacity should be assessed at $1,000. The vocational material provided by the defendant Authority showed that interpreters were remunerated at $41 per hour, which for 12 hours would come out at $492 per week, which represents a loss of earning capacity of more than 50 per cent.
91Ms Cooper drew attention to the summary of the plaintiff’s tax returns to be found at PCB 77, which she said established the pre-accident earning capacity as return for income tax purposes for the year 2018-2019 at $38,700, which falls short of the suggested $1,000 per week which would yield a $52,000 taxable income per annum.
92Mr Hussain said that he was employed by Hardware Supply Pty Ltd on a casual basis, but sought employment for a full 38-hour week, which was not always available.
93Mr Mighell KC relied on a decision of the Court of Appeal in The Herald & Weekly Times Limited and Victorian WorkCover Authority v Jessop [2014] VSCA 292. In Jessop’s case, the appellant employer sought to have a determination of serious injury under the Accident Compensation Act 1985, with provisions not materially distinguishable from those operative in this case under the 2013 Act, inter alia set aside on the ground that:
“there was no evidentiary basis for the judge to find that there were 37 hours per week of work consistently available to Ms Jessop. HWT contended that it can be inferred that the hours that Ms Jessop worked represented the hours of work that were available to her prior to the injury. According to HWT, the amount that Ms Jessop actually earned in the 2009 financial year, rounded up to $35,000, was the appropriate figure for the purposes of the assessment ...” ([2014] VSCA 292 [62])
94The Court of Appeal, Neave and Kyrou JJA and Ginnane AJA, rejected this contention, saying:
“In our opinion, the evidence unequivocally established that, prior to Ms Jessop’s injury, she was physically and mentally capable of working 37.25 hours per week and she was willing to work those hours if they were offered to her. Ms Jessop’s willingness to exercise her capacity to work 37.25 hours per week was demonstrated by the fact that she worked those hours on two occasions in the 12 month period prior to the injury.
... Ms Jessop was capable of working 37.25 hours per week and thus of earning gross annual income of $66,245.40. This is sufficient to satisfy the 40 per cent statutory test.” ([2014] VSCA 292 [64]-[65])
95I accept this “fallback” position adopted by Mr Mighell KC. His primary submission, however, was that, for the reasons that I have already rehearsed, it could not be thought that Mr Hussain would be qualified as an interpreter. He said there were certain very specific requirements for interpreters, as laid down by the licensing authority NAATI. He relied on a document styled “English Proficiency Requirements” (PCB 78-80). I likewise accept that contention.
Disposition
96It follows that there should be a determination of “serious injury” in favour of Mr Hussain both as to pain and suffering and economic loss consequences, and that he should be given leave to commence common law proceedings accordingly.
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