Khalaji v VWA

[2019] VCC 924

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CIVIL DIVISION

Revised
(Not) Restricted
Suitable for Publication

SERIOUS INJURY

Case No.CI-18-04429

SADEGH KHALAJI	Plaintiff
v
VICTORIAN WORKCOVER AUTHORITY	Defendant

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JUDGE:	JORDAN
WHERE HELD:	Melbourne
DATE OF HEARING:	24,25,26 June 2019
DATE OF JUDGMENT:	26 June 2019
CASE MAY BE CITED AS:	Khalaji v VWA
MEDIUM NEUTRAL CITATION:	[2019] VCC 924

REASONS FOR JUDGMENT
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Subject:  ACCIDENT COMPENSATION
Catchwords:            Serious injury-
Legislation Cited:     Workplace Injury Rehabilitation and Compensation 2013
Cases Cited:            
Judgment:                Leave granted to bring proceedings for the recovery of damages

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr C Harrison QC with Mr G Coldwell	Zaparas Lawyers
For the Defendant	Mr J Batten	Russell Kennedy

HIS HONOUR:

1       Sadegh Khalaji is a 30-year-old man who came to this country in 2013 from Iran after fleeing into Kurdestan. He then managed to get to Australia by boat via Indonesia. He was an asylum refugee who was then held in a detention centre in Darwin before getting to South Australia and then Melbourne. He obtained  a protection visa and hopes to become a permanent resident of this country.

2       As a gay man he had been very cruelly treated in his homeland. His background in terms of discrimination and cruelty at the hands of others is horrific. He has   been imprisoned, beaten, tortured and interrogated. He has largely lost the support of his own Iranian family for being gay. He feared for his life due to how his sexual orientation was viewed by the current political/religious regime in Iran.[1] Even in Australia he and his gay Iranian partner were the subject of trauma and abuse by Iranian people in the streets in Melbourne. [2]

[1]Plaintiff’s Court Book(PCB)2

[2]PCB10

3       His affidavits required use of an interpreter as really he has very limited English speaking skills. He did  three or four years of English classes back in Iran. He was not asked by counsel for the defendant to even attempt to answer in English in court. This usually happens when there is a suggestion a worker has better English speaking skills than might appear. They are very poor in his case.

4       Sitting in this jurisdiction virtually daily, the evidence established once again a  motivated refugee quickly getting work in Melbourne through a  familiar path for non-English speaking refugees. Through Labour Solutions, a job agency, he obtained work in an abattoirs where there was no need to have any English speaking skills in order to perform the manual, heavy labour required on the killing floor.

5       This job was with JPS Australia, in Brooklyn, and he started there in February 2014. It  would be difficult to imagine heavier repetitive work than one of his  jobs cutting cattle carcasses that required him in one job to repetitively lift 50 to 100kg weights at times over 600 times per shift. Perhaps not surprisingly, lower back pain started to trouble him around the middle of 2015.[3] Leave is sought for spinal impairment for both loss of earning capacity and pain and suffering.

[3]PCB3

6       The plaintiff’s case is put on the basis of an impairment of his low back suffered due to the nature of and in the course of his employment from February 2014 until he finished work in May 2015. In the financial year 2014/15 his gross earnings were $36,187 and then in 2015/16, which was about  eleven months actual employment, he grossed $42,149. There is some dispute about the appropriate wage figures as well as the actual circumstances in which he finally went off work. He has not been in employment since 23 May 2016.

7       There was a secondary or fall back  claim under paragraph (c) for a psychiatric condition. Significant mental health issues clearly predated his employment at the abattoirs and given this man’s horrors in Iran and his refugee journey since that time, this is no surprise. This part of the claim must meet the test of “severe” as well as permanence and it is really an aggravation of pre-existing mental or behavioural disorder injuries that was relied.

8       Regarding issues  the defendant mentioned, there was an admission there was a soft tissue low back injury caused by the job at the abattoirs but the effects of that condition were said to have now ceased. Thus there was a dispute about the nature and extent of the claimed spinal impairment at the present time. Also disentanglement of the organic and the psychiatric was required. Credit issues were raised. The defendant  maintained that the plaintiff had a residual capacity for full-time work at least in “suitable employment” if not in his old unrestricted heavy manual labour. In other words the plaintiff was said to have failed to establish a 40% or more permanent loss of earning capacity whether the claim was under paragraph (a) for organic spinal impairment or under paragraph (c).

9       Basically his evidence was that he worked in three jobs on the kill floor or killing line. Firstly he started off cutting hooves off the cattle. Secondly he was moved up to a job  cutting the legs off the beasts and this involved the heavy “hooking’ of carcasses. After being put on this second job and about six months’ probation at the abattoirs, he was obviously working in a satisfactory manner as he was put on the permanent staff on 3 August 2014. This was the very heavy work that he has described in his affidavits in which the lifting repetitively of great weights was involved and where I accept he probably injured his spine.

10      His evidence was that after he reported his back injury to his supervisor at work, he was then moved on to light duties. This was the third job and he was cutting the tongue out of the beast’s mouth. This was lighter work that he had for some  months although occasionally he was called back on to the heavier second job when someone was absent. I accept his evidence that he was still on this light duties third job, tongue cutting, when he was effectively stood down from his job  on 23 May 2016. He never got back to his normal second or heavier job where he had been made a permanent employee. He also needed to wear a back brace at work.

11      The credit of the plaintiff is often critically important in “serious injury” cases and this is so here. His English is extremely limited.[4] He could communicate at work using his native Persian Farsi dialect through a workmate.[5] There was not a word of English used in court by the plaintiff. It was obvious from both his demeanour and exchanges with the professional interpreter that his knowledge of English is very limited. Mr Khalaji had really no memory of what he had said to this doctor or that one as he was taken to clinical notes and reports. He barely even remembered the particular doctor suggested to him let alone what was in notes or reports that had never been read to him.

[4]PCB6

[5]PCB3

12      While he had attended school to year twelve in his homeland he presented as a relatively unsophisticated man. Cross examination about these medical records and suggested inconsistent statements in the past did not damage credit. Even with the interpreter assisting it was quite obvious that his comprehension at times of what was asked of him was limited. His pauses and demeanour illustrated he did not always  understand even fairly simple questions.

13      He was a witness who made admissions against interest. For example he readily admitted taking LSD and not on any prescription, only going to job agencies  due to Centrelink’s capacity to stop payments and how even them insisting on him going every two weeks annoyed him.[6] Some implied attack on credit seemed to revolve around him going to solicitors early on after being indefinitely stood down at work and his friend also making a claim against the abattoirs. Neither topic damaged credit.  

[6]T52-53,76-77

14      Exhibit 1 was a DVD/film that went for barely three minutes. It did not show anything other than him outside his residence with a couple of other men and apparently saying goodbye and or greeting one or other of them. He did nothing strenuous. He did nothing to show any spinal use. He walked only about a dozen steps. He carried nothing relevant. The film was of no consequence. It was but the merest of snapshots of the last three years. It  showed nothing of assistance to either party. It should be recorded he altered his posture a number of times in court consistent with low back discomfort.

15      After cross-examination extended over two hearing days I am satisfied the plaintiff was both a reliable and accurate witness when it came to explaining physically based spinal symptoms that have been caused due to the nature of and in the course of his extremely heavy employment at the abattoirs. Generally I found he was man not prone to any exaggeration and, if anything, rather  likely he  understated in terms of his spinal impairment. Bearing in mind what he has gone through in the past including imprisonment for no more than his sexual preference understatement of spinal symptoms is no surprise.

16      Criticism was directed to his motivation regarding his not returning to work and not more actively seeking it. I am not persuaded by this. This man is unskilled in English and the ways of this new country. He has been under the umbrella of Centrelink. He has gone to Work Solutions as required and has been to one job agency or similar body about twenty times. Also his doctor has indicated he did not need to be doing any more in regard to job seeking and over the last few years Centrelink, for six months initially, and then for recurring three monthly periods right up to now he has not been required to be more active on that front.

17      Motivation and credit were called into question by the defendant regarding his attending English classes and motivation to improve his language skills. To some extent this criticism is unrealistic. It needs to be kept in mind just how disadvantaged he is in regard to language and contacts. Unlike a lot of new arrivals in this country he does not even have the support of his own local ethnic community. To a very real extent he lives apart from his own Iranian community on account of being a gay man.

18      To suggest he can just walk into a university or some English classes and get the assistance of a teacher to interpret from Farsi into English and vice versa is much easier to suggest than to happen in any meaningful way. Similarly his efforts about seeking work have been reasonable in the circumstances as essentially he has done what the Australian government agency known as Centrelink asks of people out of work in this country. I do not accept that his credit has been damaged nor his motivation put into question regarding improving English or seeking alternative work. The probabilities are that for the foreseeable future he will remain very limited in language skills and with no realistic capacity for any employment that is consistent and reliable.

19      I say further about his inability to work that his evidence about that comes from a well-motivated man who has been used to a great deal of adversity across his life. In his first affidavit I accept him as reliable when he said “I have not worked since May 2016. I have not been at work because of my back pain”.[7] Then in his recent affidavit he went into this in more detail again describing  “I remain unable to work because of my back pain” but also going on to explain how the four suggested alternative jobs of product assembler, packer, quality control/product examiner and warehouse clerk are beyond him because of experience, limited English skills and his spinal symptoms.[8] This is a realistic assessment from a reliable man who is the best judge of his true capacity.

[7]PCB6

[8]PCB11-12

20      Some criticism was made of the worker in not attending at the company’s first-aid centre or nurse and complaining more about low back problems. This was not persuasive. It  ignores the likelihood that this man wanted to keep his job and also the uncontested evidence from one of his co-workers that the company were “notorious” when it came to targeting injured workers for redundancy.[9] It also ignores that over the last months of his employment at the abattoirs the worker had been put on a lighter duties type job and had a requirement to wear a back brace to keep working.

[9]PCB22

21      There was one doctor who was particularly critical of the worker as an historian and seriously questioned his reliability. This was the medico-legal psychiatrist, Dr D Weissman in an early report in August 2017 to the plaintiff’s solicitors.[10] A lot of the matters Dr Weissman was asking about would be deeply personal to a gay Iranian man and some reticence about such matters is understandable.  Dr Weissman seemed to somewhat water that criticism down later on  but I have not heard from him. In any event I have had more than ample opportunity to assess the reliability of Mr Khalaji and I reject Dr Weissman’s early view about the plaintiff as an historian. It is also against the weight of the other medical evidence.

[10]Exhibit 3, PCB95-108

22      Years in this jurisdiction has shown that impairments of the spine are the most common claims made for “serious injury”. Very often they involve the low back. It has been said that there are elements of fact, degree and value judgement involved in the task at hand. The question of whether an injury is “serious” requires reference to the consequences to the worker of any impairment with respect to either pain and suffering or loss of earning capacity when judged by comparison with other cases in the range of possible impairments. When so judged, consequences have to be fairly described as being more than significant or marked and as being at least very considerable.

23      I accept he was reliable when he said in his first affidavit “I have daily pain in my lower back. The pain goes down my left buttock and into my left leg down to the knee. The pain varies in intensity from day to day”.[11] He repeated this in his recent affidavit when he said “I continue to experience constant daily pain in my lower back. The pain continues to go down my left leg.”[12] I also accept that this pain has led him to ingest quite disturbing amounts of narcotic based painkillers and even go to the extent of taking Tramadol that he obtains from a friend, so not on prescription. Addiction to narcotic drugs has become a problem but it is consistent with ongoing organically based severe spinal pain.

[11]PCB5

[12]PCB9

24      The worker was born on 30 May 1989 so when he began to experience pain in his back in about mid 2015 that must have been about the time of him turning 26 years of age.[13] The question of a judgment about loss of earning capacity is different for a worker who is under 26 years of age at the time of injury. Such a worker engages the broad brush common-law approach to judging permanent loss of earning capacity as opposed to the three years pre-and post mathematical analysis required by the Act. I raised this with counsel myself at the end of the evidence. The defendant said the usual mathematical analysis was required but in the end, for reasons I will set out,  the methodology of assessing whether a 40% or more permanent  loss of earning capacity was not relevant.   

[13]PCB2-3

25      This man brought to the open employment market in Australia about as low a base in terms of demonstrable earning capacity as could be imagined for an adult. He had very little to offer in terms of an earning capacity. He had and still has virtually no English skills. He has no education and training qualifications in this country. He really brought a strong back and good motivation to the employment table. His life’s journey across the world to try and improve his lot is indicative of a very strong motivation. The relatively little time he took to get work in a country where he cannot speak the language, the type of hard and dirty work he did as well as his getting a promotion at the abattoirs, all indicate a commendable motivation to work. He has lost his strong back due to his spinal impairment and I am satisfied he will have that impairment for the foreseeable future.

26      He has proved on the weight of the evidence that his spinal impairment is organically caused and thus there is no need to disentangle the physical from the aggravated mental or psychiatric condition he suffers from. Just the extent and type of treatment indicates ongoing physically based pain. He has had years of physiotherapy, he does daily exercises at home, he has had therapy by way of pool and was going to a gym regularly for treatment. This is all in addition to several general practitioners, very large amounts of painkillers and referrals to physical specialists.

27      These included the pain physician and specialist anaesthetist , Dr S McCallum, in January 2017 who the worker is still under for chronic pain.[14] He was also referred to the neurosurgeon and spinal surgeon, Professor R Bittar in February 2017.[15]  These doctors are specialists dealing with a physically based spinal pain. They are not psychiatrists or other mental health practitioners. Furthermore, a pain rehabilitation program was mooted but he was not a candidate for that approach according to his treating specialist Dr McCallum.[16]  There is little else this man could do by way of treatment for his organic spinal impairment. He is a compliant and motivated patient. Of course he also seeks specialist treatment for his mental health issues and addiction problem due to excessive physically directed narcotic painkillers he has been taking.

[14]PCB53

[15]PCB65

[16]DCB35

28      Before leaving the lay evidence supporting the plaintiff’s application, it is worth mentioning there are two affidavits from co-workers at the abattoirs who swore affidavits that support the very heavy nature of the plaintiff’s work, his complaints of back pain and his obvious motivation.[17] Unlike the two affidavits the defendant relied on from people who were in management type positions, these two co-workers from the Middle East were actually on the killing floor and well qualified to support his claim. They were not called for cross-examination. I accept their evidence. 

[17]PCB15-18,19-22

29      He has proved a permanent loss of earning capacity of 40% or more and that would be the same whether it be on a common-law analysis or on an analysis of the years of his gross earnings as is required by statute if he was injured after he turned 26 years. It has to borne in mind he was only in this country in Darwin  from 4 May 2013 onwards but got into employment from February 2014 until the abattoirs put him off effective from 23 May 2016.[18]

[18]Defendant’s Court Book(DCB)26

30      The starting point on the medical reports is the radiology which illustrates by way of both  CT and MRI scans that he  has damage in his lumbar spine. He was only aged in his mid-twenties when a CT scan of his lumbar spine on 23 May 2016 demonstrated a posterior annular L4/L5 disc prolapse with bilateral bony foraminal stenoses.[19] The next year, when still only a very young man, on 12 April 2017 a weight bearing MRI of his lumbar spine again showed a broad-based disc bulge at L4/L5.[20] These are  objective indications of pathology in his low back. They are  consistent with his complaints of ongoing organically based spinal pain and restriction.

[19]PCB152

[20]PCB154

31      As he suffered injury four or more years ago and the assessment has to be made now in June 2019, there is more assistance gained from the more recent of the doctors’ reports. Dr J Mitchell is a general practitioner from Medical One Sunshine which is a clinic where the plaintiff has seen a number of doctors. In a very recent opinion in April 2019, Dr Mitchell, who has personally treated the patient regularly since the early 2018 gave a very clear diagnosis of an acute organic lower back injury that was most likely  work related in the following terms “Chronic lower back pain - Lumbosacral disc prolapse L5/L5 & L5/S1.”[21] I read the first level there mentioned as a typographical error that should read L4/L5. This local doctor also diagnosed depression which is beyond argument on the evidence presented.

[21]PCB27

32      Regarding work the doctor said “Sadegh is currently not fit for pre-injury employment or alternative duties”.[22] This doctor who has seen the patient on a number of occasions is well-placed to give an up-to-date opinion. I accept his evidence about the organic spinal impairment and the additional mental health depression but also his view about loss of capacity for employment. Given the amount of time involved and it is noteworthy that the patient has made poor progress with management of his chronic pain the probabilities are the condition will remain for the foreseeable future. The doctor went on to note some of the communication problems with respect to language and I accept this general practitioner’s opinion supporting a permanent loss of 40% or more earning capacity.

[22]PCB27

33      There are a number of reports from an earlier general practitioner at that Sunshine Clinic,  Dr A Ziabari, but in the end only the 25 July 2017 report was tendered. Apart from supporting an organic spinal impairment I prefer the up-to-date opinion from his colleague, Dr Mitchell. Nevertheless Dr Ziabari  reported he first saw the patient in April 2016 with pain in the lower back suffered from heavy lifting at work. He diagnosed the organic injury of lumbar disc prolapse.

34      An extensive list of prescription drugs for physical pain was obviously directed to the lumbosacral disc prolapse problem as well as some directed to depression issues. It was clearly a “severe lower back pain” that was being described by this doctor having been caused by work and it was a “disc prolapse disease” for which medication was required.[23] Regular analgesics and physiotherapy were needed. This is treatment directed to an organic condition. The worker was unfit for pre-injury duties and “may be suitable for modified or alternative duties” with some very major restrictions put even on that possibility. There could be no lifting, repetitive back movements and he had to rest and change position as pain dictated. Even then it was only 12 hours per week as the limit. [24] The word “may” is the language of possibility not probability. With the restrictions the doctor thought were apt, for a heavy manual worker with no language skills to speak of, this amounts to no real capacity for any work.

[23]PCB40

[24]PCB41

35      A physiotherapist, Ms Jane Boland, reported in December 2018 about her treatment of Mr Khalaji. She supported a physically-based spinal impairment and diagnosed disc injuries. The evidence is he has had multiple physiotherapy treatments in 2016, 2017,2018 and still continuing in 2019. Some were even covered by Medicare because of payment issues but they are evidence of an ongoing spinal impairment that is organically based. She put a number of very wide physical restrictions on his fitness for both pre-injury employment and alternative employment that would effectively mean for an unskilled manual worker there was no capacity at all when  and looked at realistically.[25]

[25]PCB42-47

36      A further physiotherapy report from Ms Tara Kemp was very early but it confirmed the history of gradually worsening lumbar pain with referral into the leaks that had become severe pain. She diagnosed the organic injury of L4/L5 and L5/S1 disc bulges with foraminal stenosis.[26] She last saw him in June 2016. She did not mention any psychiatric problem.

[26]PCB49

37      Professor Bittar only saw the patient once in February 2017 and had taken a history of low back injury whilst undertaking heavy lifting with the organic injury of disc bulging at L4/L5 and L5/S1 being diagnosed but little else was said. He recorded work was  heavy and repetitive but surgery was not suitable for this physical injury and Dr McCallum should continue treating. The prognosis was poor. The opinion about work was unequivocal that the patient could not maintain work of a suitable nature in a reliable and consistent manner.[27] He reviewed the four jobs Recovre suggested to the defendant but the physical impairment effectively put them out of the question also.[28]  The professor made no mention of any mental health condition.

[27]PCB72

[28]PCB71

38      A large number of reports from the pain specialist, Dr S McCallum, are repetitive. The most recent one is April 2019 and it indicated mental health problems have become more apparent over time with addiction to narcotic painkillers causing concern. But Dr McCallum was still adamant “Yes, there clearly is an organic basis to Mr Khalji’s current pain and symptoms”.[29]

[29]PCB63

39      Regarding incapacity for work, clearly there were psychiatric problems that were relevant but the doctor disentangled and went on to say even further “I do believe that a significant part of Mr Khalaji’s current incapacity is materially contributed to by his physical injuries” and he had described those injuries in earlier reports as “discogenic in origin with a muscular component”.[30] I accept these are opinions from a doctor who knows him well as supporting a total incapacity for work which will continue for the foreseeable future due to an organic spinal impairment which also has an added layer of psychiatric problems.

[30]PCB57

40      The plaintiff was also referred to Western Health in November 2018 for further treatment for a clear organic injury. Dr Mitchell sent him off for “chronic lower back pain” referred to as a lumbosacral disc prolapse. No further statement assists from Western Health.[31] This was a physical impairment requiring further attention.

[31]PCB73-74

41      Work Healthy was another treating clinic or group that dealt with the worker it seemed on behalf of the employer, JBS Australia.[32] This treatment was for right lumbosacral pain. It is a report about early treatment but all the treatments there by a Mr Alex Buck and a Mr Matt Gooch seem directed to a physical injury. These are back in early years and are not of much assistance now some  four years after injury but they do indicate a clear organic impairment.

[32]PCB76-78

42      I accept the weight of this body of evidence from treaters who were charged with managing this man’s health rather than just providing a medico-legal opinion based on limited visits. This medical evidence establishes the work caused organic spinal impairment that is still continuing and will probably do so for the foreseeable future. Also that evidence proves the permanent incapacity for work that he has suffered and it amounts in reality to a total incapacity when the definition of “suitable employment” and the characteristics of this man are looked at realistically.

43      Most of the medico-legal reports relied on by the plaintiff also support my finding that it is an organic spinal impairment and no disentangling exercise is required. They also support the conclusion of a total and permanent loss of any real capacity for employment, either pre-injury or alternative.

44      Dr A Aliashkevic, neurosurgeon, reported very early and back in 2016 did not think injuries were permanent. Although even then he thought the plaintiff could not do pre-injury duties and said “I do not think that he is currently suited to any work on a reliable and consistent basis”.[33]

Doctors Turnbull and Weissman are psychiatrists and due to the plaintiff proving “serious injury” on the basis of loss of earning capacity due to his organic spinal impairment, it is not necessary to discuss their opinions. They

[33]PCB80

46      were essentially concerned with  the paragraph (c ) claim.

47      Dr M Mittal is a pain physician and specialist anaesthetist and reported in March 2019. The report speaks for itself. She disentangled the physical from the psychiatric and said there was “an organic basis for Mr Khalaji’s pain  and current symptoms”.[34] She conceded there were so many limits on body movement and function as a result of the physical impairment that he had no realistic capacity for his old work or for any “suitable employment”.[35] Prognosis was poor. In addition he had obvious psychiatric problems.

[34]PCB137

[35]PCB138

48      Dr J Slesenger, occupational physician, reported in April 2019 and again it is a lengthy report that is self-explanatory. He set out and considered a great deal of material including the reports obtained by the defendant.[36] He diagnosed “mechanical injury to the lumbar spine” with “aggravation of degenerative disease of the lumbar spine”.[37] The limits on movements and functions that he thought appropriate were such that no labouring capacity remained when looked at realistically.[38]

[36]PCB141

[37]PCB148

[38]PCB149

49      As I read him he considered the plaintiff had suffered a total loss of earning capacity. The four job suggestions to Recovre made to the defendant in a report were not within the worker’s capacity and the doctor set out clear reasons why not.[39] He saw psychiatric issues that were also at play. He discussed the matters the court must have regard to under the definition of “suitable employment” and said there was in effect no capacity for alternative work. To

[39]PCB150

50      There were other documents tendered but they do not alter the position and do not require any further discussion. The defendant tendered reports some of which were quite dated and do not assist but I will comment on them briefly although they do not alter the weight of the evidence that I have already referred to and which I accept on the relevant issues.

51      I will only address then some brief comments to the reports from these doctors engaged on behalf of the defendant as a number of them are quite out of date and in the end I find they were quite properly the subject of the criticisms made in final submissions by counsel for the plaintiff. Those criticisms are well-founded and I accept them. They also apply to the report from Mr D Brownbill the defendant relied on.[40]

[40]Exhibit 4

52      The occupational physician, Mr Gary Davison, provided a number of reports but they are based on very limited information. He did not obtain a complete or adequate history. Those reports are also out of date in making an assessment now. Furthermore his opinions go against the weight of the evidence in this case which I have already indicated that I accept.

53      Mr M Dooley, Orthopaedic Surgeon, also took a very limited history. Just to take two examples, he did not take note of the fact that the worker was on light duties as he remained in employment at the abattoirs and was wearing a back brace. He made comments about capacity for work that ignored in my opinion a proper understanding of the language limitations and the constant pain that I accept the man suffers.

54      Mr Dooley considered the worker had a capacity for light physical work and clerical duties but this ignores the obvious limitations this man has by way of background, work experience, language difficulties as well as his constant pain and need for painkilling medication. Finally the surgeon came to a conclusion that the back injury did not seem to be work related but as I read this report there is no adequate explanation for this view and I do not accept it. It flies in the face of the vast bulk of medical evidence.

55      Dr M Wyatt, occupational physician, also laboured under inadequate material and incomplete history in forming her opinions. She also had no history of wearing a back brace work and the real difficulties he was having. Nor did she give proper consideration to the constancy of his spinal pain, the amount of medication that he required and still requires and the other factors the court must have regard to under the definition of “suitable employment”. Why she was not sent the worker’s first affidavit is surprising.

56      Dr T Stewart, occupational and environmental physician, was also tendered and he had a grossly inadequate history on which to base his opinions. He also had inadequate materials forwarded to him. Just to take one example, when he initially gave his views he did not have any radiology sent to him but still somehow made an  assumption that there was no pathology and this flies in the face of the objective evidence of disc damage at two levels.[41] Even in a second report he was sent the CT scan but for some reason was not sent the MRI report by those  instructing him.[42] I do not accept his opinions. They are founded on flawed material and are not properly explained.

[41]DCB110

[42]DCB116

57      Recovre reported to the defendant with four suitable jobs. It is worth noting that an interpreter was in attendance and “translated for the entirety of the interview” with Recovre.[43] This is consistent with the very real inadequacy of this man’s English-speaking skills and apart from one job where a language limitation is mentioned, the suggested alternative jobs are effectively beyond this man’s language ability. The suggestion the work could be done in any of these jobs with the limitations he has, constant pain and the general matters relevant under the definition of “suitable employment” is not sound. I am satisfied the plaintiff does not have any realistic capacity for any of the alternative jobs suggested by Recovre.

[43]DCB85

58      There were some further materials tendered by the defendant but they do not take this matter any further. I am satisfied on the probabilities that there is an organic spinal impairment he suffered at work, there is no disentanglement required, the plaintiff’s credit has not been damaged and he has proved that when looked at realistically, he has no capacity for any pre-injury or suitable employment. I am also satisfied that that situation will remain for the foreseeable future.

59      Accordingly it is not necessary to comment on the secondary claim for aggravation of psychiatric injury.

60      It follows I grant leave to issue proceedings for loss of earning capacity and in accordance with practice for pain and suffering damages also.