Irani v Mowby Pty Ltd (trading as Aberdeen Aged Care)

[2010] VCC 1031

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE

CIVIL DIVISION

Case No. CI-08-05685

ARDESHIR IRANI	Plaintiff
v
MOWBY PTY LTD	Defendant
(Trading as ABERDEEN AGED CARE)

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JUDGE:	HIS HONOUR JUDGE O'NEILL
WHERE HELD:	Melbourne
DATE OF HEARING:	26 and 27 July 2010
DATE OF JUDGMENT:	9 August 2010
CASE MAY BE CITED AS:	Irani v Mowby Pty Ltd (trading as Aberdeen Aged Care)
MEDIUM NEUTRAL CITATION:	[2010] VCC 1031

REASONS FOR JUDGMENT

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Catchwords: ACCIDENT COMPENSATION – Section 134AB Accident Compensation Act 1985 – injury to lumbar spine – prior injury to lower back – work capacity – disentangling the psychological from the physical.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr G A Lewis SC with	Patrick Robinson & Co.
Mr R C Forsyth
For the Defendant	Mr J L Batten	Hall & Wilcox
HIS HONOUR:

1          The plaintiff claims to have suffered injury to his lower spine, specifically at L5-S1 as a result of two incidents which occurred on the evening shift on 13-14 May 2006 in the course of his employment as a Division 2 Nurse working at the defendant’s aged care facility.

2 Subsequent radiological investigations have indicated a disc

protrusion/prolapse at the L5-S1 level.

3          The plaintiff resumed work for one shift, but then was certified as unfit for all duties by his general practitioner, and has not resumed any work since. He claims a range of restrictions in his social, recreational and domestic life.

4 This is an application for leave to bring proceedings pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered in the course of employment with the defendant on 13-14 May 2006.

5 Mr Lewis, on behalf of the plaintiff, identified the body function said to be lost or impaired as the lumbar spine. In addition, he also stated the plaintiff had suffered a permanent severe mental or permanent severe behavioural disturbance or disorder in the nature of a Chronic Pain Disorder. The application is thus brought under sub-sections (a) and (c) of the definition of “serious injury” contained in s.134AB(37) of the Act and leave is sought in respect of both pain and suffering and loss of earning capacity.

6          In order to succeed, the plaintiff must prove, the onus being upon him, that the consequences emanating from the loss or impairment of the body function are at least “very considerable” and more than “significant” or “marked”.

7          In the alternative, the plaintiff must prove, the onus being upon him, that the consequences emanating from the psychological disorder may be fairly described as more than “serious” to the extent of being “severe”. The authorities have defined the word “severe” as being a word of stronger force than “serious”.

8          I must consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. I must also compare the impairment arising from injury in this application with other cases in the range of possible impairments of body function; in the alternative, behavioural disorders.

9 In order to be satisfied that the plaintiff has suffered a loss of earning capacity, he must prove, as prescribed by s.134AB(38)(e)(i) and s.134AB(38)(f) that, as a result of injury, he has suffered a loss of earning capacity of 40 per cent or more when a comparison is made between “without injury earnings” in the three year period before or after injury, as best reflects his earning capacity, with his earning capacity at the present time from suitable employment.

10        The plaintiff was the only witness called to give evidence and be cross- examined. In addition, medical reports, radiology reports, vocational assessments, return to work plans and material related to an earlier motor vehicle accident were tendered into evidence. I have read all the tendered material.

Relevant Background

11        The plaintiff was born in India and is now fifty-four years of age. He was schooled to the equivalent of VCE and then commenced an apprenticeship in naval dockyards. He did not complete this. He obtained work as a masseur at an hotel in India and then in Kuwait. He migrated to Australia in 1985 and commenced work as a process worker in a leather factory. He was involved in a serious motorcycle accident in 1986, suffered various facial fractures and the loss of his left eye. In addition, his right eardrum was perforated; he suffered an injury to his left leg and general bruising and muscular injury to his neck, back and torso. Details of the initial injuries and hospital treatment are set forth in reports of the Preston and Northcote Community Hospital and Austin Hospital.[1]

[1]             Defendant’s Court Book (“DCB”) 5-8

12        According to various medical reports obtained on behalf of the defendant’s insurer in the motor vehicle accident, the plaintiff complained of constant pain in the whole of the spine from the neck to the lumbar area.[2]

[2]             Reports of Dr Kretsch (DCB 12); Mr Billett (DCB 20-23); Mr Battlay (DCB 37); Mr Bedi (DCB 51).

13        Further, according to court documents filed in respect of the motor vehicle claim,[3] the plaintiff was said to have suffered an injury to his lower back, resulting in him being unable to stand or sit for long periods, with his activities of daily living being affected as a result.

[3]             DCB 130, 154

14        According to the report of Ms Frei, neuropsychologist,[4] the plaintiff had adopted an invalid role and it was impossible to perform neuropsychological tests as the plaintiff was not prepared to participate. Various of the medical reports referred to painted a gloomy picture for the plaintiff’s return to employment. Further, according to some reports,[5] a significant element of functional overlay, even conversion hysteria, was present in relation to the claimed injuries, particularly to the cervical and lumbar spine and left leg. Those views assume some significance when regard is had to the medical reports of Mr Michael Dooley, orthopaedic surgeon, obtained in relation to the subject application.

[4]             DCB 48

[5]             Dr Kretsch (DCB 14); Mr Billett (DCB 24, 28); Mr Battlay (DCB 38).

15        The plaintiff was criticised by Mr Batten, for the defendant, for failing to disclose to various doctors who examined him in this application, his prior history of lower back pain arising out of the motor vehicle accident. Further, in the plaintiff’s Claim Form provided to the employer after May 2006, when asked as to whether he had suffered any prior injury to his lower spine, he answered “no”. Further, said Mr Batten, despite the gloomy predictions in respect of the plaintiff’s work future in 1990, he commenced employment in 1994, firstly with the Preston Council, and subsequently with the defendant. Mr Batten suggested there was an element of insincerity in the plaintiff’s earlier claim given that he was able to return to full-time employment.

16        I do not consider the injuries, particularly to the lumbar spine, arising from the 1986 motor vehicle accident as a matter of any significance. There is nothing in the medical reports to suggest the plaintiff suffered a specific injury to his lower spine in that accident. Undoubtedly given the seriousness of the incident, the plaintiff suffered bruising, even soft tissue damage to, inter alia, the lumbar spine but there was nothing to suggest any focal injury. In fact, a CT scan of the lumbar spine taken in June 1987[6] showed no abnormality. As a consequence, I do not believe the plaintiff’s credit is affected to any significant degree in relation to the injuries said to be sustained in the motor vehicle accident.

[6]             Plaintiff’s Court Book (“PCB”) 82

17        The plaintiff married in 1993 but separated from his wife in 2006. He has three children of the marriage, presently aged thirteen, seven and six. He shares the care of the children with his former wife.

18        As stated, the plaintiff obtained employment in 1994 with the Preston Council as a home carer. He received on-the-job training and, in 1997, commenced work as a personal care attendant with the defendant. He obtained further nursing qualifications and became a Registered Division 2 Nurse in 2000. From that time until 2006, he worked for the defendant, more lately at the Aberdeen Aged Care Facility until injury in 2006.

19        Aside from the loss of his left eye, he states he was otherwise in good health before May 2006. There were difficulties with the breakup of his marriage, and court disputes in relation to access and custody. He was actively involved with his children, and enjoyed bike riding and various other activities with them. In particular, he did not have any difficulty coping with rather strenuous work as a nurse as a result of any injuries suffered in the 1986 collision. With the proceeds of settlement, he had purchased a house, and a taxi licence, although, because of his eye injury, he was unable to drive the taxi. The taxi licence was held in the name of himself and his brother, and after his brother’s death, his sister, and driven under contract by a driver. He received an income of approximately $20,000 from the taxi licence.

20        He alleges he enjoyed a social life within the Indian community and was otherwise reasonably active.

21        The plaintiff accepted that some short time prior to May 2006, he cut the shifts he was working from four nights to three nights per week. He accepted that this was before his marriage breakup.[7] Although not completely clear from the evidence, I accept that the reason for this reduction in shifts was to enable him to have more time to care for his children.

[7]             Transcript (“T”) 25

The Incidents and their Consequences

22        Generally, the plaintiff’s work as a Division 2 Nurse was relatively heavy. On the evening shift of 13-14 May 2006, he claims two lifting incidents occurred giving rise to lower back injury. The first incident concerned a man who weighed something in excess of 100 kilograms. A pillow supporting his legs had slipped, and required to be re-positioned. The plaintiff had to lean across the bed and lift what he claimed was a heavy and immobile leg onto the pillow. In so doing, he states that he felt pain in his lower back. He continued with his shift, and at a later time, he was called to assist another nurse to move a patient back into bed after he had fallen out. He claimed that the patient weighed more than 90 kilograms. Again, in the course of lifting the patient, he suffered further pain in his lower back. There is a dispute on the evidence as to the weight of the second patient. Co-workers[8] claim the patient weighed no more than 79 kilograms. Nothing of significance turns on the fact. In any event, the plaintiff continued until the end of his shift and then went home. According to the statement of his co-worker Ms Anderson,[9] she does not recall the plaintiff telling her that he had injured his back during the course of the second lift.

[8]             See statements of Ms Moisa (DCB 175) and the plaintiff’s co-worker, Ms Anderson (DCB 190)

[9]             DCB 190

23        The plaintiff’s next rostered work evening was 19 May 2006. He went to work on that day and several days later, possibly 21 May 2006, he received a telephone call from his work supervisor, who had obtained a copy of the Incident Report which he had filed, and was told not to return to work unless he had medical clearance.

24        In the interim, on 16 May 2006, the plaintiff went to see his general practitioner, Dr Berera.[10] He complained of pain in the spine generally, and movements of his lumbar spine were found to be diminished. A CT examination of the lumbar spine on 19 May 2006[11] noted:

“Focal central/left para-central L5-S1 disc protrusion, indenting the theca and displacing the left S1 nerve root within the central canal. Normal S1 joints.”

[10]           PCB 23

[11]           PCB 84

25        Dr Berera suggested exercises and prescribed anti-inflammatory medication. The plaintiff continued to complain of ongoing pain and was referred to Mr Keng, orthopaedic surgeon, on 20 July 2006.[12] Mr Keng suggested conservative treatment although considered the prospect of surgical intervention.[13] In addition to lower back pain, the plaintiff complained to his general practitioner of sciatic pain to the left leg and, in June 2007, was referred to Mr Brian Barrett, orthopaedic surgeon, again by Dr Berera. The plaintiff complained to Mr Barrett of lower back pain radiating into the left buttock area, and pain radiating into the left thigh and calf, down to the heel and foot. He also complained of pins and needles into the left foot and toes.[14] Mr Barrett considered it appropriate to maintain conservative treatment, although considered that operative treatment may markedly relieve the symptoms.[15] Mr Barrett further advised the plaintiff to walk regularly, which he claims to have done.

[12]           PCB 28

[13]           PCB 29

[14]           PCB 30

[15]           PCB 36

26        In relation to conservative treatment from his general practitioner, the plaintiff has had regular physiotherapy, and acupuncture treatment from his sister. He has maintained an exercise regime, but his capacity to exercise, particularly walk, is restricted depending upon the pain in his lower back. He has remained under the care of Dr Berera to the present time whom he sees approximately monthly. He has been prescribed a range of medication, and at the present time takes approximately four Panadeine Forte tablets per day, and the narcotic analgesic, OxyContin, from zero to two tablets per day, depending upon the level of his symptoms.[16] He claims that he has good and bad days with his lower back and leg pain. He says that he has regular muscle spasms. This is supported by the reports of various of his treating practitioners. He says that sometimes he cannot predict the severity of pain and the onset of sciatic pain. He is unable to interact with his children in the same way as before. He claims that his capacity to do particularly the heavier housework at home is restricted, but as he generally lives by himself, he undertakes all tasks. He cannot jog nor ride a bike as he used to before. He states that, in particular, the pain affects his sleep and it is difficult for him to get a full night’s sleep. As a result of the constant pain, he claims to be stressed and anxious and his memory and concentration have been affected. He states that he now does little with his days, and does not interact socially as he did before.

[16]           T 19

27        He claims to be completely unfit for all types of work. This is in part because of pain, and in part because he is concerned at the prospect of collapsing in front of patients were he to return to work for the defendant. He further believes that his attendance at work would be unreliable.

28        In consultation with the defendant, a vocational assessment company, Counselling Appraisal Consultants Pty Ltd (“CAC”), proposed a return to work program for the plaintiff in August 2006.[17] That return to work program was staged over eighteen weeks, commencing with two hours per shift, two days per week calling bingo and reading newspapers to residents. From that point, it was proposed that the plaintiff’s hours and type of work increase to eight hours, three days per week on pre-injury duties. This offer was repeated in correspondence dated 29 November 2006[18] and by letter to the plaintiff dated 1 February 2007.[19] It is not clear whether the plaintiff arranged an appointment with Dr Berera to discuss the proposed return to work plan and there is nothing in the doctor’s various reports to suggest that he considered the plan, attended the work premises or gave attention to whether or not the plaintiff, with his back condition, would be able to perform the work. In fact, there is nothing in the reports of Dr Berera to address the plaintiff’s capacity for modified duties. According to the plaintiff’s affidavit,[20] he states that:

“Dr Berera advised that I was not yet ready to start the proposed plan and he continued to provide me with certificates stating I was unfit for all work.”

[17]           DCB 97, 101-102

[18]           DCB 107

[19]           DCB 114

[20]           PCB 14

29        It is unfortunate the plaintiff did not receive encouragement to at least attempt the return to work plan. Notwithstanding the plaintiff’s lumbar disc injury, it would be difficult to argue that he would not have the capacity for two hours, three days per week to read newspapers and call a bingo game. It is another matter whether he would have been able to increase his duties to normal duties as the return to work plan envisaged.

30        The plaintiff has not resumed any form of employment, and admitted in cross- examination that he had taken no steps to consider or locate any form of work involving modified duties, even on a part-time basis.

Medical Evidence

31        Dr Berera formed the view the plaintiff had suffered an injury to the L5-S1 disc which he described as a “prolapse” and that the disc indented the exiting nerve root causing sciatica. He noted the plaintiff complained of constant low- back pain with radiation into the buttock, found muscle spasm on examination and noted that straight leg raising was grossly diminished. He said the plaintiff was not able to enjoy his social life as before due to pain and insomnia.

32        Mr Keng saw the plaintiff in July 2006.[21] He noted a complaint of radiation of pain into the left leg. He stated the MRI showed a moderate central disc protrusion at L5-S1 indenting the anterior thecal sac on the left side. He noted muscle spasm on examination and restricted straight leg raising. He thought there was some neural compression of the nerve. When re-examined at the request of the plaintiff’s solicitors in October 2008, Mr Keng said that he felt the plaintiff was not able to return to work unless there was some improvement. He considered surgical intervention would be needed unless the pain receded. He described the pain as:

“Terrible pain throughout this whole region.”

[21]           PCB 28-29

33        Mr Barrett examined the plaintiff in June 2007. He obtained a history of low- back pain radiating into the left buttock, and pain running down the left leg to the toes. He noted significant reduction in lumbar movements upon examination. He described the disc at L5-S1 as having been prolapsed, according to the MRI of 24 July 2006 –

“… pushing into the lumbar theca and closely related to the left S1 nerve

root.”

34        He considered the plaintiff had suffered an L5-S1 lumbar disc rupture and left- sided prolapse in the subject incidents. He considered the plaintiff’s complaints as “genuine and physical”.[22] He thought that it was unlikely the rupture would repair. He considered the plaintiff’s disability as profound and ongoing and that he had no capacity to return either to pre-injury employment, or even lighter and limited work.

[22]           PCB 32

35        Mr Barrett examined the plaintiff again in October 2009 at the request of Dr Berera. The complaints of ongoing low-back pain, and lumbar muscle spasm were repeated. He considered the plaintiff as completely unable to perform any significant physical activities with no capacity to return to any form of employment. He described the prognosis as poor. He thought an up-to-date MRI scan might be helpful to determine whether surgery was indicated.

36        The plaintiff was examined by Mr Brearley, general surgeon, in September 2009.[23] He diagnosed the plaintiff as suffering “mechanical lumbar pain with left-sided sciatica resultant from an acute prolapse of the L5-S1 intervertebral disc” as a result of the subject incidents. He did not consider there was any indication for surgical intervention. He thought the prognosis was poor and that the plaintiff was unfit for former duties or manual labour duties of any kind. He said that the plaintiff would only be able to undertake sedentary or office work as he could not sit or stand for more than short periods. He considered there was no functional overlay nor psychological consequences.

[23]           PCB 37

37        The plaintiff was examined by Dr Nathar, consultant psychiatrist, in December 2009.[24] For reasons which I shall subsequently state, in my view, the plaintiff’s claim does not achieve the level of “severe” as the statutory test requires in respect of a psychological disorder. However, Dr Nathar noted that the plaintiff suffered a major depressive reaction with anxiety symptoms, together with a Chronic Pain Disorder causing amplification of his pain. On psychological grounds alone, he considered the plaintiff was totally and permanently incapacitated for all work.

[24]           PCB 43

38        Finally, the plaintiff was examined at the request of his solicitors by Professor Teddy, neurosurgeon, in February 2010.[25] Upon examination, he stated:

“He moved about with a ‘glass back’. He exhibited almost no spinal movements at all in the lumbar region. Straight leg raising was apparently 10 degrees bilaterally but he was able to sit bold (sic) upright with his hips flexed and knees extended. There were no focal neurological abnormalities of any kind.”

[25]           PCB 50

39        He noted the MRI of July 2006 as showing moderate central L5-S1 disc protrusion without neural compromise. He described the plaintiff as suffering mechanical back pain probably related to disc degeneration at the L5-S1 level and to facet joint irritation. He said there was no neurological compromise and a fair degree of pain behaviour.

40        On behalf of the defendant, the plaintiff was examined by Dr Maurice Wallin, occupational health practitioner, in June 2006.[26] He noted that the plaintiff was injury-focussed with substantially reduced back movements upon examination. He considered the radiology showed a small central and left para-central disc protrusion touching the left S1 nerve root, but not compressing it. He considered this was not producing any sciatic symptoms. He said the plaintiff had suffered a lumbosacral disc protrusion and injury, related to the subject incidents. He considered the plaintiff probably fit to engage in a light, graduated return to work program, including lighter duties for three hours per day, three days per week. At that time, he considered the plaintiff had a fairly minimal work capacity. When apprised of the return to work offer contained in the CAC material,[27] he thought the program was “highly appropriate”.

[26]           DCB 52

[27]           DCB 61

41        The plaintiff was examined by Dr James Rowe, occupational physician, in November 2006[28] and March 2007.[29] Upon examination, there was almost no back movement. He noted the disc protrusion on MRI scan but said there was no nerve root compromise. He considered the plaintiff had adopted a “sick role” or abnormal illness behaviour with a very strong functional overlay. He found a number of discrepancies upon physical examination. He also considered that the plaintiff was focussed upon the disc protrusion and considered there was no correlation between that protrusion and his physical findings. He considered the plaintiff fit for the return to work program which he described as a “very generous one”. He accepted the plaintiff was not fit for heavy lifting but considered he had suffered a musculoligamentous injury from which he had recovered. He considered the physiotherapy that the plaintiff was undertaking of little use. He disagreed with the opinion of Mr Barrett that the disc was unable to heal or repair.

[28]           DCB 63

[29]           DCB 68

42        Finally, on behalf of the defendant, the plaintiff was examined by Mr Michael Dooley, orthopaedic surgeon, in December 2008[30] and January 2010.[31] He obtained a history that the plaintiff suffered ongoing low-back pain since the subject incidents with intermittent pain radiating down his left leg. He considered the plaintiff as suffering degenerative disc disease but that during one of the lifting episodes, he had sustained a prolapse at the L5-S1 level on the left side. He considered that prolapse had aggravated the underlying degenerative disease. He accepted that the plaintiff was unfit to perform heavy physical work, but that from an orthopaedic point of view, he would be able to carry out light physical work, including clerical duties. He was surprised the plaintiff was able to walk for only five to eight minutes. He considered that the plaintiff would continue to suffer intermittent low-back pain and intermittent pain into the left leg but with an exercise and fitness program, the condition should improve.

[30]           DCB 80

[31]           DCB 84

43        He considered various occupations postulated by vocational assessors on behalf of the defendant, including roster/care co-ordinator, aged care placement consultant and pathology collector. He considered, from a theoretical orthopaedic viewpoint, the plaintiff had the capacity to carry out those occupations.

44        In his subsequent report, he found objective signs of abnormal illness behaviour on clinical examination.[32] He considered that the plaintiff’s spinal function had been reduced by a mild to moderate degree. He said:

“… Mr Irani describes worsening pain and function. In my view, this cannot be explained on the basis of organic orthopaedic injuries. I believe that he has developed a Chronic Pain Syndrome and that the constancy and intensity of his ongoing pain are greater than one would expect to see for the injury sustained and for the degree of underlying degenerative disc disease. He presents as far more disabled than I would expect him to be. He should not require assistance from family members to dress and undress. He should be able to move his lumbar spine through a range greater than demonstrated on formal examination today. There are objective signs of abnormal illness behaviour on clinical examination. It remains my view that the appropriate treatment for Mr Irani is for him to increase his activity and to undertake a low- impact exercise and fitness program. In my view, he does not require regular ongoing physiotherapy treatment. There would be no indication to consider surgical intervention in his management.”

[32]           DCB 85

45        Mr Dooley, when provided with details of the medical reports in relation to the motor vehicle accident of 1986, noted that the assessors at that time found functional overlay, chronic neurotic reaction, conversion hysteria and gross exaggeration. He stated, in his clinical experience, patients with a previous injury which led to the development of a Chronic Pain Syndrome were more likely to develop such a syndrome with psychological reaction in any subsequent injury. He considered that the plaintiff would be able to carry out the various occupations referred to in the NabEnet report of 28 November 2008.

Vocational Assessments

46        In her report of 28 November 2008, Ms Marion Chua, psychologist,[33] assessed the plaintiff’s work capacity. Based upon the medical opinions, she considered the plaintiff to have the capacity to undertake full-time employment as:

[33]           DCB 121

ƒ	Roster/care co-ordinator, Blue Cross – Hawthorn
ƒ	Aged care placement consultant, Millennium Aged Care – Mont Albert
ƒ	Radiology clerk, The Alfred Hospital – Prahran
ƒ	Pathology collector, Dorevitch Pathology.

47        So far as I am able to gather from Ms Chua’s report, these positions are full- time.

48        Ms Margaret Leitch, occupational therapist, on behalf of Evidex, assessed the plaintiff’s vocational capacity in reports of November 2009[34] and July 2010.[35] In her first report, Ms Leitch considered that, on the basis of the medical opinions, the plaintiff did not have the capacity to return to work as a Registered Nurse. She noted the plaintiff had very few transferrable skills and no vocational qualifications for sedentary occupations nor, in particular, any computer experience. She considered there was no occupation, save for his part-time self-employment managing the taxi, for which the plaintiff had a work capacity.

[34]           PCB 55

[35]           PCB 80a

49        In her subsequent report, she considered the vocational options suggested by Ms Chua. She noted most of the jobs would require work on a computer for which the plaintiff had no capacity and would require months of training. Some of the positions would require periods of prolonged sitting or standing which the plaintiff would not be able to cope with. She considered the plaintiff would not be reliable nor productive in the areas of employment suggested. She noted the plaintiff would not be able to undertake any driving because of his eye problem and even the provision of an ergonometric chair would be unlikely to ease the plaintiff’s back pain and capacity to sit for long periods. In summary, she found none of the jobs suitable.

Credibility of the Plaintiff

50        Mr Batten submitted I ought have reservations about the plaintiff’s credibility. He described the plaintiff as an intelligent person who had not been frank in disclosing his prior history of back problems. He criticised the plaintiff for making no attempt to attend the return to work program, or look for alternative employment. He submitted that the plaintiff was somewhat evasive in answering direct questions put in cross-examination.

51        The plaintiff gave his evidence in a slow and halting manner. He did appear, in the course of cross-examination, to be injury-focussed. There were no major credit issues put to the plaintiff.

52        The plaintiff has made little if any effort to participate in a return to work program which, at least in its initial stages, involved duties which he would be well capable of undertaking. He appears to have taken the view that because doctors have described his back injury as a disc lesion or prolapse, that he therefore has no work capacity. These matters reflect upon his credibility. Further, I was not impressed with some aspects of the plaintiff’s evidence. He did refuse to answer questions directly when the meaning of the question was clear. As a consequence, I do have some reservations about the plaintiff’s credibility.

Assessment of the Medical Evidence

53        I am satisfied from the medical evidence that the plaintiff did suffer a disc injury to his lumbar spine at the L5-S1 level in the course of the lifting incidents in May 2006. So much is clear from the radiology, in particular the CT scan of 19 May 2006[36] and the MRI scan of July 2006.[37] Although in the latter there is no evidence of neural compromise, many of the treating practitioners, including Dr Berera, Mr Keng and Mr Barrett, accept there is some effect of the protruding disc upon the exiting nerve root. Mr Dooley[38] accepts that at the outset there was some initial left-sided sciatica.

[36]           PCB 84

[37]           PCB 85

[38]           DCB 82

54        Aside from Professor Teddy, who saw the plaintiff in March 2010, and who described the plaintiff as suffering a degenerative condition, exacerbated by the incidents, the plaintiff’s various treating doctors, together with Mr Brearley, all refer to the plaintiff as having suffered a disc protrusion or prolapse at the L5-S1 level and refer to it as an organic injury well capable of giving rise to the symptoms of which the plaintiff complains. Most of the plaintiff’s treating doctors find the plaintiff to be genuine and without exhibiting signs of functional overlay.

55        On behalf of the defendant, Dr Wallin considered the plaintiff was injury- focussed but had suffered a disc injury at L5-S1. He considered the plaintiff would be fit for lighter duties as set forth in the return to work program. Dr Wallin’s opinion is now somewhat dated.

56        Dr Rowe considered the plaintiff had adopted a “sick role” and had a work capacity beyond that which he demonstrated. He considered the return to work program as a generous one.

57        Of significance is the opinion of Mr Michael Dooley. He accepted the plaintiff had suffered a left-sided lumbosacral disc prolapse, but had developed abnormal illness behaviour. It is difficult to know, from this report, the extent to which Mr Dooley accepts the plaintiff’s complaints of pain and restriction as being related to the organic injury, and the extent to which the abnormal illness behaviour has amplified those symptoms.

58        On balance, I prefer the opinions of the plaintiff’s treating practitioners, but also accept, from the report of Mr Dooley, that functional overlay, or Pain Syndrome play some role in the plaintiff’s presentation. There is clear evidence from the radiology of an organic injury related to the subject incidents and I accept that that injury gives rise, to a significant degree, to the plaintiff’s complaints of pain, restriction of movement and reduction in domestic and social activities.

Psychological Disorder

59        I accept the plaintiff has suffered some anxiety and depression as a result of the physical injury. However, the plaintiff has not had any treatment, nor been prescribed any medication for such disorder. Even accepting the plaintiff suffers a Pain Syndrome, which must be assessed under sub-paragraph (c) of the definition of “serious injury”, I am of the view that the consequences of that psychological disorder do not reach the “severe” level as prescribed by the legislation.

Conclusions

60        As stated, I am satisfied that the plaintiff has suffered a significant organic injury to his lumbar spine in the subject lifting incidents. That has resulted in significant pain to his lower spine, and particularly within the first twelve months or so of injury, referred pain into his left leg.

61        I accept that to some extent the plaintiff has become injury-focussed and has adopted the label of “lumbar disc prolapse” itself as preventing him from undertaking any form of employment. Even accepting the plaintiff had advice from his treating general practitioner and surgeon that he had little if any work capacity, I am unimpressed with the plaintiff’s failure to make any attempt at the return to work program. On the balance of the medical evidence, however, it is clear the plaintiff did not have the capacity to return to full nursing duties, as the program contemplated in the later weeks. Any return to work program requires an element of assessment as the program progresses.

62 Nonetheless, I am satisfied that the substantial basis for the plaintiff’s complaints of pain and restriction lie in the organic injury to the L5-S1 disc. I accept the plaintiff does not have the capacity to return to work in his pre- injury duties. I accept the plaintiff does have some capacity for light modified duties on a restricted basis. When I factor into account the definition of “suitable employment” in s.5 of the Act, in particular the nature and extent of injury and the plaintiff’s age, education, skills and work experience, in my view, the plaintiff has little work capacity. I prefer the opinions of Mr Keng, Mr Barrett and Mr Brearley in that regard. While I am unable to state with precision what the plaintiff’s capacity is, for the purposes of the formula prescribed by s.134AB(38)(e) and (f), I am satisfied the plaintiff’s loss of earning capacity exceeds 40 per cent.

63        Accordingly, the plaintiff’s claim under sub-section (a) of the definition of “serious injury” in relation to loss of earnings succeeds. It follows that the plaintiff’s claim in relation to pain and suffering also succeeds.[39]

[39]           See Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170

64        I shall make consequent orders.

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