Kianzadeh v Victorian WorkCover Authority
[2023] VCC 1359
•11 August 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Serious Injury List
Case No. CI-22-03614
| AMIRHOSSEIN KIANZADEH | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE MANOVA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 and 29 June and 25 July 2023 | |
DATE OF JUDGMENT: | 11 August 2023 | |
CASE MAY BE CITED AS: | Kianzadeh v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1359 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to spine – consequential psychological injuries – pain and suffering and loss of earning capacity consequences – credibility of plaintiff – adverse findings of reliability
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s325
Cases Cited:Hettiarachchi v Transport Accident Commission [2023] VSCA 27; Zlateska v Consolidated Cleaning Services Pty Ltd & Anor [2006] VSCA 141; Sutton v Laminex Group Pty Ltd [2011] VSCA 52; Herald & Weekly Times Ltd and Victorian WorkCover Authority v Jessop [2014] VSCA 292; Giankos v SPC Ardmona Operations Ltd [2011] VSCA 121; Yirga-Denbu v Victorian WorkCover Authority [2018] VSCA 35; Petkovski v Galetti [1994] 1 VR 436; Steen v WorkSafe Victoria & Anor [2014] VSCA 299
Judgment: Leave granted to the plaintiff to issue proceedings for the recovery of damages for pain and suffering in respect of the cervical spine.
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Fitzpatrick with Ms S Fernando | Zaparas Lawyers |
| For the Defendant | Mr P Bourke | Hall & Wilcox |
Application for leave to issue proceedings in respect of economic loss dismissed.
Application pursuant to s325(1)(c) of the definition dismissed.
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HER HONOUR:
Introduction
1This is an application for leave to bring common law proceedings for pain and suffering and loss of earning capacity pursuant to s325 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) for injury to cervical spine and consequential psychological injury alleged to have been sustained by the plaintiff in the course of his employment with Land Surveys No Problems Just Solutions (“the employer”) between 13 August 2018 and February 2019.
Issues in dispute
2The relevant legal principles were not in dispute.[1]
[1]Transcript (“T”) 229, Lines (“L”) 20-23
3The relevant body functions identified by counsel for the plaintiff were the cervical spine and the mind (consequent on the alleged cervical spine condition).
4At the commencement of the hearing, the following issues were identified by counsel for each party:
(a) credibility and reliability of the plaintiff;
(b) causation;
(c) identification of the relevant injury and its consequences;
(d) the figure which most fairly represents the plaintiff’s without injury capacity; and
(e) the plaintiff’s capacity for either pre-injury or suitable employment.
Summary of findings
5I find the plaintiff to be an unreliable witness.
6I grant the plaintiff leave to commence proceedings for pain and suffering damages in respect of the cervical spine condition.
7I find the plaintiff has a residual capacity to work full time in suitable employment as a general clerk (surveying) and/or as a real estate agent’s representative and/or a property manager in a real estate agency.
8I therefore refuse leave to commence proceedings in respect of economic loss.
9I dismiss the plaintiff’s claim pursuant to s325(1)(c) of the definition.
Background
10Mr Amirhossein Kianzadeh, the plaintiff, is a forty-six-year-old civil engineer with a bachelor’s degree from Iran, the country of his birth. He has been in Australia on a skilled migrant visa since August 2016.[2] His engineering specialty from Iran was land surveying.[3]
[2]Plaintiff’s Amended Court Book (“PACB”) 22, the plaintiff’s first affidavit affirmed on 26 April 2022, at paragraph [8]
[3] T182, L22-31
11On 17 March 2014, the Institute of Engineers Australia recognised the plaintiff’s Iranian qualifications from the Azad University Najafabad as meeting the requirement for standing as a professional engineer Skill Level 1 in Australia.[4]
[4] Defendant’s Court Book (“DCB”) 291
12In Australia, the plaintiff obtained further additional qualifications as follows:
(a) on an unknown date, a security licence in South Australia and Victoria;[5]
(b) in 2018, Communicate Effectively in the Workplace Certificate from TAFE;[6]
(c) on 24 June 2020, a Diploma of Surveying from tafeSA;[7]
(d) on 31 January 2022, a Certificate II in Technical Security (relating to the installation of security cameras and equipment), with twelve subjects or units of study completed between 25 September 2020 and 5 October 2021;[8] and
(e) between 2020 and 2021, a “Small Business Contractor” (Australian qualification) course online while the plaintiff was in Iran.[9]
[5] PACB 22 at paragraph [9]
[6] DCB 285
[7] PACB 22 at paragraph [9] and DCB 292
[8] DCB 296-297
[9] T167 ꟷ T168
13The plaintiff worked in Australia “as a land surveyor and in security”.[10] The land surveying work was as follows:
(a) for Veris in Sydney, as assistant surveyor in July 2017. This employment came to an end as a result of a knee injury arising out of a transport accident on 12 July 2017[11] (a period of less than two weeks); and
(b) for the employer in Melbourne between 13 August 2018 and February 2019 as a permanent full-time land surveyor.[12]
[10] PACB 22 at paragraph [10]
[11] PACB 22 at paragraph [11] and T40, L1-12
[12] PACB 22-23 at paragraphs [14]-[18]
The hearing
14The hearing proceeded in the usual way. Counsel for the plaintiff tendered affidavit material, medical reports and radiology reports.
15The plaintiff relied on two affidavits. The first affidavit was affirmed by the plaintiff on 26 April 2022 and the second on 21 June 2023.
16The defendant tendered vocational documents, progress notes from clinics attended by the plaintiff in Melbourne and in Adelaide, documents relating to the plaintiff’s employment, medical reports relating to the subject claim and medical reports relating to a prior claim for compensation for a knee injury arising out of a motor vehicle accident in Sydney in July 2017.
17The plaintiff was the only person to give viva voce evidence and to be cross- examined. He was assisted in the witness box by a qualified interpreter, however he elected to give his answers in English and only resorted to the interpreter for clarification of specific words or phrases that he did not understand.
18I have considered all the tendered evidence and the plaintiff’s viva voce evidence, as well as the written and oral submissions of counsel for each party.
Credibility and reliability of the Plaintiff
19Counsel for the defendant submitted that the plaintiff is an unreliable witness because his evidence about his prior medical conditions was inconsistent with the contemporaneous medical records.[13]
[13]Defendant’s Submissions dated 19 July 2023 at paragraphs [11], [24] and [67]
20Counsel for the plaintiff conceded that the plaintiff was “prone to flourishes” to emphasise his point and that he “had more knee issues” than he recalled in his evidence.[14] Counsel submitted that the plaintiff was an emotional person in a stressful context, giving his evidence in an emotional way.[15]
[14]T288 ꟷ T289
[15]T296
Assessment of the submissions made by reference to the Plaintiff’s evidence
(i) Muscle spasm in lumbar spine
21Counsel for the defendant asked the plaintiff whether he had used medication for muscle spasms prior to May 2018. The plaintiff was initially non-responsive:
“I don’t say I said or not … but this is something - muscle spasms happens for everyone during their years, it is not a constant regular response in my back.”[16]
[16] T104, L13-16
22Then the plaintiff accepted, if it was in the notes, he must have used the medication, stating, “it is written there, I use it”.[17]
[17] T104, L19-20
23When counsel for the defendant asked whether he had muscle spasms prior to May 2018, the plaintiff said: “it’s not a permanent injury ma’am … I don’t know what he is looking for … I want to ask him”.[18]
(ii) The knee and physiotherapy
[18] T104,L26 ꟷ T105, L3
24The plaintiff attended a general practitioner (“GP”) in South Australia. The progress notes of the GP were tendered in evidence and a number of them were properly used as the basis for cross-examination.
25The GP note dated 31 December 2018, referred to a complaint of “[p]ain has increased due to long days at work”.[19] The note referred to “suggested icing knee after work to reduce inflammation”.[20] The plaintiff did not accept that he had provided any history of swelling to the knee: “I tell you honest, I can’t believe this”.[21]
[19] Defendant’s Amended Supplementary Court Book (“DASCB”) 53
[20] Ibid
[21] T134, L11-14
26The plaintiff continued to deny any problem with the knee, despite the referral to Mr Amit Bhutange (a physiotherapist) made by the GP.
27The plaintiff eventually told the Court that he went to a physiotherapist for his knee because it was free:
“I have five sessions free without paying money … So every time I feel something, even a little, why I don’t use this … But if I have to pay $60, $80, I say wait see what happens. … .”[22]
[22] T138, L17-20
28Later in his evidence, the plaintiff reiterated:
“… if I use my care plan, doesn’t mean I have a problem. I am caring for myself. It doesn’t mean I have problem, it’s care plan, it’s a free program. If someone buy a free coffee for you, what would you do, you would throw it or you would drink it. If I’m in your shoes, I would drink it, it’s free.”[23]
[23] T160, L8-13
29The answers given about physiotherapy for the knee were aimed at creating the impression that there was no ongoing damage or injury to the knee of any significance at all. The plaintiff wanted the Court to accept he was going to physiotherapy because it was free. This is in contrast to the histories in the GP notes of pain in the knee when he sits for prolonged periods to study,[24] following the advice of the physiotherapist,[25] the advice by Ms Mia Wilkes on 31 December 2018 of “icing knee … to reduce inflammation” and the note which confirms a history that his “[p]ain has increased due to long days at work”.[26]
[24] DASCB 47
[25] DASCB 52
[26] DASCB 53
30I have exercised caution in considering the contents of the notes. I accept they are taken by doctors in the course of treatment and not as a complete record of statements made by their patients. I accept that they may contain either a record of a statement made by a patient, or an impression of the treating doctor, and that they should not be used unfairly against a plaintiff.[27]
[27]Hettiarachchi v Transport Accident Commission [2023] VSCA 27 at paragraphs [57]-[58]
31I find the plaintiff had ongoing knee pain and swelling in December 2018 as provided in the notes. I take into account the concession made by counsel for the plaintiff that “we accept that the plaintiff had more knee issues than he recalled now”.[28] I find that he attempted to misrepresent the extent of his knee injury and he had not simply forgotten his knee issues.
[28] T289, L23-24
(iii) Sore eyes after a few hours of study
32Counsel for the defendant asked the plaintiff about his attendances upon his GP Dr Meena Kundu, in September 2021. These attendances took place during the time the plaintiff was undertaking studies at TAFE. The notes contain no record of complaints about neck pain associated with study. It was put to the plaintiff that, while he complained of grittiness in the eye after a few hours of studying, he did not complain of neck pain:
Q:“But you weren't mentioning anything to do with neck pain after a few hours of study?---
A:I think it's more than 50 times I tell you when I go to doctor for my eyes, I think about my eye, because the doctor is not interested to know about my neck, it's very simple. Have you ever go to the doctor and you speak about whole your body, about whole your problems in the body, you go for your eye, you speak about your eye. I don't know why I cannot transfer my argue to you.”[29]
[29] T171, L16-24
33The plaintiff deposed, in his affidavit, that he had neck pain which “routinely impacts on [his] ability to concentrate” and he has “to read slowly or re-read things” and “is easily irritable and angry because of pain”.[30]
[30] PACB 25 at paragraph [37]
34In cross-examination, the plaintiff told the Court that he could not work for more than two hours a day at a computer due to his neck pain.[31] I do not accept that the neck condition poses such a significant restriction. If it did, it is highly improbable that the plaintiff would only complain to his doctor about his eyes being gritty when studying.
[31] T147, L16-24
35Counsel for the plaintiff submitted that one explanation for the absence of complaints of neck pain while studying, was that the plaintiff was attending Mr Farzan Mirzaei for physiotherapy[32] and Dr Nijay Navani, his treating GP, for certificates of capacity. I do not accept this submission. Mr Mirzaei has provided a very detailed report. There is no mention of study in the report. Dr Navani’s notes are before the Court and although study is mentioned, there is no mention of difficulty with that activity.
[32]T285 ꟷ T286
36I accept the defendant’s submission that, if the plaintiff had the level of pain and restriction associated with computer use and study which he described in Court, it is improbable that there would be no mention of it anywhere in the clinical notes or in the report of the physiotherapist, Mr Mirzaei.[33]
(iv) Riding his motorcycle
[33]T241 ꟷ T243
37The plaintiff told the Court that he was able to move his 650cc motorcycle around because it weighed little more than a bicycle. The plaintiff accepted that such a motorcycle was not small: “it’s a mid-size bike”.[34] His counsel accepted that it was commonsense that it was not like walking a bicycle and conceded that the plaintiff was at times prone to “flourishes” in his evidence.[35]
[34]T177 ꟷ T178
[35]T288
Plaintiff’s presentation and demeanour in the witness box
38The plaintiff is a very tall man (about 194 centimetres),[36] with a strong physical presence.
[36] DCB 73
39Much of the plaintiff’s evidence was delivered standing up, at times with his back to the cross-examiner. This enabled the plaintiff to read from the computer screen behind him, even though the one in front of him was operating.
40During these times, he frequently turned his head to the right to look at the cross-examiner, or to the left to look at the bench.[37] This manner of delivery of his evidence was entirely inconsistent with the affidavits which provide that “my symptoms are … exacerbated from neck flexion” and “activities involving a lot of neck movement make my pain worse”.[38]
[37]T88, L14-31
[38]PACB 25 at paragraph [36]
41On one occasion, the plaintiff spontaneously left the witness box and performed nine squats in very rapid succession with his arms straight up in the air in order to demonstrate that his knee was not damaged.[39]
[39] T43 ꟷ T44
42Counsel for the plaintiff described it as an “extraordinary event … what he was trying to do was in a very over-emotional way demonstrate his knee”.[40] I find that he was attempting to argue the point he was making in his evidence about having no damage to the knee by providing a demonstration of his ability to squat.
[40]T279, L25-28
43On another occasion, the plaintiff offered to perform dancing for the Court.[41]
[41] T112, L11-12
44In both affidavits, the plaintiff deposed that he experienced constant symptoms in his neck and shoulders, exacerbated by neck flexion and neck movement.[42] These were not apparent during his evidence.
[42]PACB 25, the plaintiff’s first affidavit at paragraphs [35]-[36] and PACB 30, the plaintiff’s second affidavit affirmed on 21 June 2023, at paragraph [8]
45There were further inconsistencies in the plaintiff’s presentation in Court. For instance, the plaintiff demonstrated to the Court his restricted neck movements for riding his motorcycle. These demonstrated movements were considerably more restricted than movements he had previously engaged in when answering questions with his back to the cross-examiner.
46The plaintiff was asked for his response to this contradiction and he said: “I [am] able to do it, but maybe my pain increase at night … or … two hours later”.[43] The plaintiff’s counsel submitted the plaintiff had never “sworn up to saying he can’t move his neck”.[44] While this might be technically correct, I consider that the entirety of the plaintiff’s presentation in court was inconsistent with the contents of his affidavits. The reason for this is that the plaintiff chose to deliver his evidence in an unusual way, with his back to the cross-examiner. This meant that he had to turn his neck to look behind him to answer the questions. This choice was inconsistent with his assertions that he had constant neck pain exacerbated by neck movements.
[43] T176, L21-24
[44]T284, L3-4
Findings as to the Plaintiff’s reliability
47My impression is that, during his evidence, the plaintiff was arguing his case. At times, his answers were directed towards minimising the effects of the prior medical conditions. At other times, his answers were directed towards maximising the effects of his neck injury. That may have been motivated by emotion or stress, or there may have been other reasons. Ultimately, the reasons are irrelevant, as I find that I am unable to rely on a large portion of the plaintiff’s evidence.
48In summary, the grounds for this finding are as follows:
(a) the plaintiff was argumentative and at times nonresponsive – answering the question he preferred, rather than the one which had been asked;
(b) the plaintiff would have the Court believe that, when he was attending for treatment, he did that because the treatment was free, not because he had a genuine need;
(c) there is no contemporaneous or supportive evidence of neck complaints and restrictions with study or computer use; and
(d) some of his evidence, such as about the weight of his motorcycle, was not credible.
49I find the plaintiff’s evidence to be unreliable due to its content. When combined with my findings about the plaintiff’s demeanour in the witness box, I consider I am unable to accept the plaintiff’s evidence about his pain and restrictions.
50I accept the defendant’s submission that the Court ought not accept the plaintiff’s evidence about his incapacity. I take into account the concessions made by his counsel that he was an emotional witness, prone to flourishes, prone to flamboyant language and, at times, argumentative.[45]
[45]T288 ꟷ T291
51I therefore find most of the plaintiff’s evidence to be unreliable. I do not rely upon it to make findings about his case unless it is supported by objective evidence, or unless it constitutes an admission against interest.
52The plaintiff’s counsel conceded that, aside from telling the Court that he could try using a trolley in his work, if an employer is really helpful, or goes out of his way, the plaintiff made no admissions against interest.[46]
[46]T300
Was the Plaintiff’s employment with the Defendant between 13 August 2018 and February 2019 “a cause” of his cervical spine injury?
53The plaintiff must establish that the injury “arises out of, or in the course of, or due to the nature of, employment” with the employer and that it is a serious injury.[47]
[47] Workplace Injury Rehabilitation and Compensation Act 2013, s327
54The plaintiff will have established the necessary connection between the injury and his employment if he can establish “on the balance of probabilities that the act or omission of the employer was a cause of the injury”.[48]
[48] Zlateska v Consolidated Cleaning Services Pty Ltd & Anor [2006] VSCA 141 at paragraph [8]
55The plaintiff’s case is that he was injured in the course of his employment as a surveyor between 13 August 2018 and February 2019.
56In his first affidavit, the plaintiff described his job as:
“… transporting equipment to and from job sites including via train. This involved carrying, lifting and moving heavy and awkwardly shaped equipment.
In the course of carrying out these duties and in about November 2018, I began to experience pain in my neck and symptoms down my right arm into my hand.”[49]
[49]PACB 23 at paragraphs [19]-[20]
57In cross-examination, the plaintiff told the Court he had to carry a box which weighed 8 to 10 kilograms, for forty-five minutes, to get to a train station to enable him to transport the work equipment by train, as he had no car.[50] He told the Court his car was in Adelaide[51]. In addition, the plaintiff had to carry the equipment around on the job site.[52]
[50] T77, L1-25
[51]T76, L26-27
[52] T75 ꟷ T76
58The defendant’s case is that the plaintiff had a constitutional degenerative age-related condition of the cervical spine which became spontaneously symptomatic in November 2018. The defendant relied on Dr Anthony Menz.[53]
[53]Defendant’s Submissions dated 19 July 2023 at paragraph [5]
59A copy of the position description relevant to the plaintiff’s employment was tendered in evidence.[54] The position description includes the following description of the physical capability and requirements of the role, which was consistent with the evidence the plaintiff gave about his duties:
[54] PACB 159-160
“The role of Surveyor involves a mix of office-based duties and fieldwork. The fieldwork is a major component of the job and requires the surveyor to perform the following tasks without restrictions for up to 12 hours in the field standing, crouching, bending, kneeling:
·Carry up to 20kg of equipment whilst walking a 1km distance over uneven ground
○ equipment includes a 10kg total station
○ 6kg survey accessories (traverse sets, tripods, targets etc) and consumables
·Walk long distances and stand for long periods – up to 12 hours;
·Climb up and down stairs or uneven ground
·Bend and crouch for periods of time
·Working on uneven surfaces”[55]
[55]PACB 160
60On 6 December 2018, the plaintiff signed a worker’s injury claim form. That document provided that he was injured “[c]arrying Total Station and Tripod in an awkward position between sites”. The nominated date of injury was 10 November 2018.[56]
[56] PACB 121
61On 5 November 2018, the plaintiff attended a Farsi speaking doctor, Dr Pooyan Tofighi Sabet Ghadam (“Dr Tofighi”). The doctor’s progress notes record that the reason for the visit was “weakness”. The words “chronic neck pain” and “not eligible (sic) for a plan or review” are recorded in the note.[57] The contents of this note were put to the plaintiff, and he did not accept that he had provided a history of chronic neck pain, describing it as a “new pain” in his body.[58] Nothing turns on the question whether the word “chronic” had been used or not.
[57] DASCB 65
[58] T118, L21-25
62There is no evidence before the Court that the plaintiff had been to any other doctor, prior to this day, complaining of neck pain. I accept the plaintiff’s evidence that the neck pain “was new pain in [his] body”.[59]
[59] T118, L24-25
63On 19 November 2018, the plaintiff returned to Dr Tofighi. The notes recorded complaints of pain in the upper thoracic spine with tenderness at T1-T2. The plaintiff was referred for a CT scan of his upper thoracic spine with a notation of “tenderness on T1 and T2; pins and needles at the back of right arm, and (sic) 4th and 5th finger of right hand; no trauma”.[60]
[60] DASCB 67
64On 20 November 2018, the plaintiff attended Dr Cecilia Phua at Sonic Health in Melbourne. The history recorded by Dr Phua includes:
“Land Surveyor
3 months+++
FT
R handed.”[61]
[61] PACB 141
65Further, it was noted that:
“Duties involve lifting 20kg equipment, bags, tripods etc
Reported -12/11/18 R sided trapezius tenderness, midline C7/T1 tenderness upper limb neurological sx gradually worsening
seen by own GP
GP requested CT scanCT 19/11/18 - pending formal report.”[62]
[62] Ibid
66Dr Phua noted that the plaintiff was reporting “R sided UL radiculopathy (ulnar nrv distribution)”. On examination, Dr Phua found tenderness at C7-T1 and formed the impression that the plaintiff had a right-sided trapezius strain at the upper border, but with full range of movement of the neck.[63]
[63] Ibid
67On 18 February 2019, the plaintiff attended upon Dr Navani at the Sunshine City Medical Clinic. Dr Navani became his regular treating doctor in relation to the neck injury. The tendered notes show approximately sixty attendances by the plaintiff on Dr Navani (some in person and others by telehealth or telephone consultation). The note of the first attendance on 18 February 2019 contains a history of “sore neck ++ Burning”.[64] This description is consistent with the evidence given by the plaintiff in Court of a sensation like a bee sting or a spider bite in the back of his neck. The plaintiff said this occurred on a particular date in November, after he had been carrying around the total station, the backpack and the tripod from place to place.[65]
[64] DASCB 6
[65] T60 and T154
68I accept the plaintiff’s evidence about how his injury came on in November 2018, because it is consistent with the contemporaneous history noted by three separate doctors. It is also supported by the weight of the evidence regarding the relationship between the onset of symptoms and his work.
69The history of injury provided to Dr Navani, was that:
“… over a period of about one week in mid November 2018 whilst working as a Land Surveyor at a construction site at New South Kensington Train Station and carrying a lot of surveying equipment along with long instruments on his back pack without the aid of any trolley or assistant, he developed pain across the Right Shoulder Girdle which worsened and progressed with radiating pain to his Right Arm with pins and needles in his Right Ring and Little Finger. … .”[66]
[66] PACB 36
70Dr Navani considered that the plaintiff suffered an aggravation of “[c]ervical spondylosis … C6/C7 foraminal disc protrusion with foraminal narrowing causing Right Arm radiculopathy”.[67]
[67] PACB 38
71On 22 May 2019, treating surgeon, Mr Craig Timms, reviewed the plaintiff. Mr Timms recorded a history that the plaintiff was:
“… carrying a lot of surveying equipment when somewhere between 10 and 12 November 2018 he developed pain in his neck, a sharp pain in his shoulder on the right and symptoms down to his ring and little finger on the right side. … .”[68]
[68] PACB 43
72Mr Timms agreed that the MRI scan undertaken on 10 January 2019 showed that there was “a C6-7-disc protrusion, which is causing neural compression. It is on the right and … that is causing his symptoms”.[69]
[69] Ibid
73On 23 April 2023, Mr Timms reported that the plaintiff likely injured his “spine whilst carrying heavy equipment while working as a land surveyor”.[70]
[70] PACB 54 under the heading “Progress”
74A number of other treating and independent physicians have also expressed the view that the plaintiff’s employment was a cause of his neck condition. These include:
(a) treating physiotherapist, Mr Mirzai;[71]
(b) (the late) Dr James Rowe, occupational physician and independent medical examiner;[72]
(c) Dr Girish Nair, neurosurgeon, where he stated “the physical nature of the job did contribute to [the plaintiff’s] symptoms”;[73] and
(d) Dr Ralph Poppenbeek, occupational physical.[74]
[71] PACB 61 at answer to Question 2
[72] PACB 83 at answer to Question 2
[73] PACB 89 and PACB 95
[74] DCB 60 at answer to Question 2
The Defendant’s case regarding causation
75The defendant relied on two reports by orthopaedic surgeon, Dr Menz. Dr Menz opined that the plaintiff has:
“… constitutional cervical spine spondylosis which is the source of his ongoing problems.
His right shoulder and right arm conditions is (sic) consistent with a C7 radiculopathy with radiation of pain into his right upper limb and shoulder. He does not specifically have a shoulder condition.”[75]
[75] DCB 53 at answer to Question 3
76Dr Menz considered that the MRI scan of the cervical spine, dated 19 January 2019, demonstrated a left C6-7 disc protrusion. Dr Menz considered that the plaintiff’s symptoms are solely constitutional and not work-related on the basis that “there was no traumatic incident”.[76] The reasoning behind the conclusion is that the imaging shows age-related degeneration particularly at C5-6 and C6-7 disc spaces. Dr Menz considered that this degeneration was always going to become symptomatic. The inference to be drawn from the contents of Dr Menz’ two reports is that the plaintiff’s employment was coincidental to the development of the symptoms and they would have developed in any event, absent the employment duties, and regardless of their nature.
[76] DCB 55
77I do not accept the opinion of Dr Menz for the following reasons:
(a) Dr Menz was focused only on whether there had been a “traumatic incident”. The duties performed by the plaintiff were briefly mentioned in the report as “carrying equipment to and from job sites”.[77] No mention is made of the weight of the equipment, or the length of time spent carrying it each day. Dr Menz did not address the question whether such duties are consistent with, or inconsistent with, the development of a disc protrusion on the background of an age-related degenerative condition. There is no path of reasoning which excludes the performance of the duties from being implicated in the development of the condition;
(b) accepting that the imaging demonstrates age-related degeneration at C5-6 and C6-7 does not provide a complete answer to the question of how the plaintiff’s condition became symptomatic in November 2018. I prefer the evidence of the other experts who took the duties into account; and
(c) Dr Menz is alone in his opinion. The weight of the expert evidence supports a conclusion that the plaintiff’s employment was a cause of his symptoms.
[77]DCB 50
78The defendant submitted that, if the Court accepts that the plaintiff first experienced the onset of symptoms in the course of employment in November 2018, then such onset was spontaneous.[78] I reject this submission for two reasons.
(a) first, it is against the weight of the evidence; and
(b) second, it does not address how the employment duties can be excluded as a contributor. For instance, it does not deal with the position description and the plaintiff being required to carry around 20 kilograms of tools, at times, on uneven terrain. It does not deal with the number of hours (in excess of fifty each week) worked by the plaintiff carrying the equipment.
[78] Defendant’s Submissions dated 19 July 2023 at paragraph [31]
79I do not accept the defendant’s submission that, if the plaintiff gave a history to Dr Evan Dryson that the duties were “light”,[79] then they must have been light. The plaintiff gave the account of “light work” to Dr Dryson, who was an occupational physician examining the plaintiff in relation to his claim for compensation relating to his knee injury. The plaintiff is an unreliable historian, who minimises or maximises the extent of injuries. Therefore, little, if any, weight can be placed on the description attributed to him of “light work”.
[79]DCB 23
80Taking into account the totality of the evidence regarding causation, I find that the plaintiff’s employment between 13 August 2018 and February 2019 was a cause of the aggravation of his degenerative cervical spine condition, which had previously been asymptomatic but, which, as a result of the employment duties, was rendered symptomatic.
Identification of the injury and its consequences – cervical spine
81In his first affidavit, the plaintiff deposed to a range of consequences of his cervical spine condition. These included constant symptoms in the neck and right shoulder, varying in intensity from a dull and heavy type in the neck, to a hot and sharp type in the shoulder or down the arm, symptoms being generally exacerbated from neck flexion or holding heavier weights in his right hand, and activities involving a lot of neck movement making his pain worse. He deposed that his sleep was disturbed by pain, sitting in front of a computer for more than an hour was difficult, and that prolonged driving flares up his neck pain. He also deposed to restrictions on riding his motorcycle for longer periods and over longer distances.[80]
[80] PACB 25-26
82In his second affidavit, the plaintiff deposed to constant, but variable, neck pain with random flare-ups. The neck pain referred into the right shoulder and down his right arm, and, at times, could be very intense. When this happens, his whole right arm was affected with tingling and numbness in the little and ring finger on the right hand. His sleep continued to be impacted because of neck pain, which woke him up during the night and in the mornings, and his neck was very stiff and sore.[81]
[81] PACB 30
83The plaintiff is an unreliable witness. I therefore treat his evidence regarding his symptoms with caution.
84Where the existence of symptoms is supported by the opinion of his treating doctors and medico-legal experts, I have accepted that the plaintiff experiences those symptoms because the assessments were conducted by reference to radiological imaging and clinical assessment.
Radiological imaging
85The plaintiff’s counsel tendered three radiological reports. A CT scan of the cervical spine, dated 19 November 2018[82] and two MRI scans of the cervical spine, dated 10 January 2019 and 19 April 2021.[83] The key findings of the most recent cervical spine MRI scan, dated 19 April 2021, were as follows:
(a) focal right lateral disc protrusion and annular fissure at the C5-6 level;
(b) focal disc protrusion noted on the right lateral exit foramen at C5-6;
(c) focal left lateral disc protrusion and annular fissure at the C6-7 level;
(d) focal disc protrusion noted in the left lateral exit foramen and at the C6-7 level, with moderate foraminal stenosis and significant impingement of the exiting right and left C7 nerve root; and
(e) at C6-7, there is a marked foraminal compromise by a disc protrusion producing significant impingement on the exiting left C7 nerve root.[84]
[82] PACB 110
[83] PACB 112-116
[84] PACB 114
86On 6 May 2021, treating surgeon, Mr Timms, diagnosed a cervical disc prolapse. That diagnosis was based on an MRI scan “that revealed a cervical disc prolapse at C6/7”[85] and clinical examination. Mr Timms considered neural compression or possible nerve root irritation was present at the C6-7 distribution, which “was likely causing his symptoms and this correlated with the examination findings”.[86] Mr Timms also described this as a “cervical disc osteophyte complex causing neural compression in his cervical spine predominantly causing right arm radiculopathy and now some left arm radicular symptoms”.[87] Mr Timms recommended “cortisone injections, physical therapies and medications and as a last resort, potentially a cervical discectomy at the level C6/7”.[88]
[85]PACB 54
[86] PACB 54
[87] PACB 54 at answer to Question 1
[88]PACB 55
Expert opinions on the injury and its consequences
87There is little dispute between experts that the plaintiff has a symptomatic degenerative condition affecting his cervical spine with either referred pain or radiculopathy into the right arm:
(a) on 4 April 2022, Dr Navani, described it as:
“Aggravation of Cervical spondylosis, mild to moderate C5/6 foraminal stenosis and C6/7 foraminal disc protrusion with foraminal narrowing causing Right Arm radiculopathy”;[89]
[89] PACB 38
(b) on 9 September 2022, Dr Menz diagnosed a C6-7 disc protrusion. Dr Menz considered that the plaintiff demonstrated:
“… slightly decreased sensation in his right little and ring finger. Motor power in both upper limbs was normal and equal. Reflexes in both upper limbs were normal.”[90]
[90] DCB 52
Dr Menz reported that:
“Often radiculopathy from the cervical spine does resolve spontaneously within a six to 12 month period but [the plaintiff] has had symptoms now for four years. It is unlikely they will now spontaneously resolve.”[91]
Whilst I have rejected Dr Menz’ opinion on causation, I note that Dr Menz accepted that the plaintiff had ongoing radiculopathy-type symptoms and considered “it may be appropriate for him to proceed with the surgery suggested by Dr (sic) Timms”.[92] I find that these two comments by Dr Menz are of significance in assessing the plaintiff’s consequences;
(c) on 6 June 2023, treating physiotherapist, Mr Mirzaei, described the injury/condition as a “cervical (particularly C6/7) disc protrusion with foraminal narrowing” and “radiculopathy”;[93]
(d) on 13 February 2023, Dr Rowe diagnosed “an aggravation of cervical spondylosis, particularly about the C5/6 and C6/7 levels”.[94]This diagnosis was based on an MRI scan dated 19 April 2021;
(e) on 28 March 2023, Dr Nair diagnosed C5-C6 and C6-7 disc degeneration, however, on examination, found no neurological deficit, with a good range of movement in the neck. Dr Nair also recorded his findings that there was no Lhermitte sign or Spurling sign. Dr Nair accepted the history of ongoing neck pain and also pain down the right arm and into the right hand, the severity of which was described by the plaintiff as “quite variable”;[95]
(f) on 8 March 2019, Dr Poppenbeek diagnosed:
“… significant disc and facet joint degenerative change at C5/6 and C6/7 levels. The C6/7 level is the main component clinically, with possible nerve root irritation in the capital C6/7 distribution, but in the right arm rather than the left, which is the region indicated by the MRI scan. This difference in clinical picture from radiology suggests to me that the problem relates more to facet joints than discs.”[96]
[91] DCB 53
[92] DCB 54
[93] PACB 59
[94] PACB 82
[95] PACB 89
[96] DCB 60
Dr Poppenbeek is an occupational physician, his opinion about the origin of the symptoms being from facet joints rather than discs is different to that of the neurosurgeons and orthopaedic surgeons. However, in this case, this is really of no significance as I prefer the opinion of the surgeons; and
(g) on 22 February 2023, Dr Reza Sabetghadam diagnosed “[n]on-specific neck and shoulder pain”, noting that the clinical examination was “unremarkable”.[97] Dr Sabetghadam is the only doctor to arrive at such a diagnosis, which I find to be of no assistance to the Court at all, as “pain” is not a diagnosis. I therefore give little weight to the diagnosis. However, Dr Sabetghadam’s acceptance that the plaintiff had pain is important in assessing the consequences of the plaintiff’s cervical spine injury.
(i) Radicular symptoms
[97] DCB 75
88On 9 January 2022, Dr Menz accepted that the plaintiff had radicular symptoms into the arm and variable neck pain, both of which had been present for four years and were unlikely to spontaneously resolve.[98] I accept the opinion of Dr Menz, who is well qualified to consider whether the plaintiff’s pain and radicular symptoms are consistent with the pathology and the clinical examination.[99]
(ii) Neck pain
[98] DCB 52-53
[99] DCB 52-54
89On 22 February 2023, Dr Sabetghadam received a history of intermittent neck pain, becoming sharp and shooting with certain activities, sometimes radiating from the right side of the neck to the shoulder, and with intermittent pins and needles in the last two digits of the right hand. The plaintiff reported that, sometimes, he is asymptomatic. Dr Sabetghadam accepted the plaintiff’s account.[100]
[100] DCB 75
90On 19 April 2023, Dr Nair also recorded a history of neck pain and pain down the right shoulder, arm and hand. Dr Nair also accepted that the plaintiff had significant ongoing neck pain and secondary or consequential right arm symptoms, and that he was unable to engage in activities involving repetitive use of his neck and arm.[101]
(iii) Treatment
[101] PACB 95
91Dr Navani first prescribed Endep (10 milligrams) in February 2019 and the plaintiff continues to take this medication. Dr Navani also prescribes Celebrex (200 milligrams) for the plaintiff from time to time.[102]
[102] DASCB 5-6
92The plaintiff has undergone two CT-guided cervical C6-7 foraminal steroid injections; the first on 3 August 2021 and the second in December 2021.[103]
[103]PACB 24 at paragraph [28]; PACB 72-73 and PACB 78
93The plaintiff is undergoing physiotherapy with Mr Mirzaei.
Findings about the Plaintiff’s consequences
94I accept that the plaintiff must be restricted in the length of time he can ride a motorcycle, especially in city traffic, which necessitates regular and frequent movements of the head and neck to the left and right to check for oncoming traffic. I do so, because I have accepted the findings of Dr Menz, Dr Sabetghadam, Mr Timms and Dr Navani. The pain and restriction consequences which are accepted by these doctors must also have an impact on the plaintiff’s ability to engage in domestic tasks and recreational tasks such as camping.
95I accept the opinions of Drs Sabetghadam, Nair, Menz and Poppenbeek, and Mr Timms, regarding the consequences to the plaintiff of the cervical-spine condition. Therefore, I find that, as a consequence of aggravating his constitutional age-related degenerative cervical spine condition at work, the plaintiff has intermittent variable neck pain, accompanied by radicular symptoms into his right arm.
Restrictions on ability to return to chosen career
96The plaintiff is a qualified surveyor from his home country, Iran. In Australia, he was employed as a surveyor for a brief period in Sydney in 2017 and for the employer between August 2018 and February 2019. Between 2017 and 2020, the plaintiff undertook a Diploma of Surveying through tafeSA.[104]
[104] DCB 292 and DCB 294-295
97I accept the plaintiff’s evidence that his first priority is to do what he trained to do all his life ꟷ work as a surveyor.[105] I find that the plaintiff was a person who was passionate about a career as a surveyor and had invested his time in Iran, and in Australia, in furthering that career.
[105]T190 and T194
98On 9 January 2023, Dr Navani, reported that the plaintiff needs to avoid sustained neck-flexion work. I accept this opinion. Dr Navani has treated the plaintiff for his neck condition since 18 February 2019. As at 2 March 2023, Dr Navani has assessed the plaintiff either in person or via telehealth on approximately sixty occasions.
Restrictions imposed by the treating doctors
99Dr Navani considers the plaintiff can return to work in his pre-injury employment, however subject to medical restrictions as follows:
“• Administrative / office duties
• self pace / avoid sustained neck flexion work
• Avoid repetitive movements of the upper limbs”[106]
[106] DCB 46
100Dr Navani considers the plaintiff could work in his pre-injury employment as a surveyor, but this could potentially aggravate his injuries, so there is a need to “modify the job requirements to fit with his medical restrictions. That is, some aspects of the job would need to be out-sourced”.[107]
[107] DCB 48
101There is no evidence before the Court that such a job as a surveyor with modifications exists.[108]
[108]T244 ꟷ T245
102On 23 April 2023, Mr Timms also opined that the plaintiff would remain restricted in his ability to carry heavy surveying equipment, which restriction would persist for the foreseeable future.[109]
[109] PACB 55
Are the restrictions a minor or major consequence?
103I find that the inability to return unrestricted to his career as a surveyor is a considerable consequence to the plaintiff, who is so passionate about this career. Based on the opinion of Dr Navani, the plaintiff will find it more difficult to find work, or to modify the performance of his work, in such a way as to accommodate his injury.
Overall assessment of impairment consequences
104Taking all the evidence into account, I find that the cervical-spine injury poses a limitation on the plaintiff’s ability to practise unrestricted in his chosen field. There is no evidence before the Court as to whether any surveyor’s job within his restrictions exists. This means an area of work which the plaintiff previously enjoyed has been closed off to him.[110]
[110] Sutton v Laminex Group Pty Ltd [2011] VSCA 52 at paragraph [49]
105I find the combination of loss of chosen career, the pain and radicular symptoms, and the consequent limitations on activities he enjoyed, such as long-distance motorcycle riding, means that the plaintiff meets the “very considerable” test.
106Accordingly, I grant the plaintiff leave to commence proceedings against his employer for pain and suffering damages.
Economic Loss
(i) The figure which most fairly represents the Plaintiff’s without injury earning capacity
107Aside from a brief period of employment in Sydney in July 2017, the plaintiff’s work history as a surveyor in Australia is limited to the subject employment, commencing in August 2018. The plaintiff has not earned salary/wages since ceasing work for the employer in February 2019. No tax returns or group certificates were tendered in evidence, but the undisputed summary of tax returns shows that the plaintiff last earned wages in the 2018-2019 financial year.[111]
[111]PACB 130
108The three-year window prior to injury is November 2015 to November 2018 and the three-year window after the injury is November 2018 to November 2021.
109The Court’s ability to assess the gross income which the plaintiff was earning in the three years before and three years after the injury[112] is restricted to the subject employment only – being a period of six months out of six years.
[112]Workplace Injury Rehabilitation and Compensation Act 2013, s325(2)(f)
110The Worker’s Injury Claim Form dated 6 December 2018 (“the Claim Form”), provides that the plaintiff was earning $30 per hour, working fifty hours a week, with an additional $255 in overtime. The usual pre-tax weekly earnings were $1,500, with $255 overtime (five hours at $51 per hour). The total earnings, according to the Claim Form[113] are, therefore, $1,755 per week, inclusive of five hours overtime.
[113] PACB 122
111A Flexi Personnel report commissioned by the plaintiff’s solicitor outlined that, in May 2023, a surveyor, paid under the Surveying Award 2020 and classified at Level 5, performing surveyor and associated duties and working on a permanent basis, exclusive of any penalty rates and allowances, earns $31.30 per hour.[114] This represents a very modest increase of 4.33 per cent in the hourly rate between 2018, when the plaintiff was earning $30 per hour and 2023, when the report was prepared.
[114] PACB 117
112The CoWork Pty Ltd (“CoWork”) report commissioned by the defendant noted that the plaintiff was earning an hourly rate of $30 with the employer and “[m]y labour market research shows this to fall well short of that which can be expected by a skilled Surveyor”.[115]That research is contained in s4.1 of the report and provides that a surveyor, as at 17 April 2023, can earn an hourly income of $64.02 and a weekly income of $2,433 for an annual full-time wage of $126,516.[116] This is double the plaintiff’s hourly rate in 2018 and double what the surveyors’ award provides as an hourly wage in 2023.
[115] DCB 206
[116] DCB 208
113Counsel for the plaintiff submitted that I should find the plaintiff’s without injury earning capacity to be in line with the figures in the CoWork report. The reason proffered was because he:
“… had considerable experience in Iran in that field …. within three years … there is no reason why he wouldn’t have had a much better wage, and more in line with the average wages are as referred to by the CoWork report.
…
He has to be allowed some opportunity over the three years to progress.”[117]
[117]T324, L20 ꟷ T329, L15
114I reject that submission for a number of reasons:
(a) first, there was no evidence before the Court about the plaintiff’s experience in Iran and how it might translate to earning the income suggested in the CoWork report. In particular, the CoWork report suggests the wage is payable to a “skilled surveyor”. On the evidence, the plaintiff’s prior experience as a surveyor was approximately two weeks in Sydney in 2017. There is no evidence before the Court about the plaintiff’s experience in Iran, whether it was recognised by Australian employers and, if so, to what extent;
(b) on the plaintiff’s own evidence, he had to obtain Australian qualifications because local employers preferred them, but he struggled in the course because he lacked competence in English.[118] The CoWork report does not address whether a person in the position of the plaintiff, with overseas qualifications and experience, would have qualified for that level of income in the three-year period post injury;
(c) the CoWork report provides no explanation for the difference between the surveyors’ award of $31.30 per hour and the suggested hourly rate of $64.02; and
(d) the evidence before the Court shows that, even prior to his neck injury, the plaintiff struggled with anxiety, back spasms, and a knee injury, all of which affected either his study or his ability to undertake his previous employment;[119] and
(e) taking all of the evidence into account, I reject the submission that the plaintiff would have progressed in the three-year period post-injury, such that he would have doubled his income.
[118]T183, L9-18 and T184, L11-12
[119]DASCB 50-52
115I consider that the amount the plaintiff was actually earning is better reflective of his without injury earning capacity than any “theoretical” rate of pay which might be available to skilled surveyors generally in the industry. The reason for this is twofold:
(a) first, it bears a close resemblance to the Surveying Award 2020, which, as at 2023, has a modest increase in the hourly rate of 4.33 per cent; and
(b) second, such an amount shows both what the plaintiff was prepared to accept and what an employer was prepared to pay for his labour. This best accords with the authorities which provide that:
“… for the purposes of s 134AB(38)(f)(ii) of the Act, a worker’s earning capacity represents a capital asset which, when exercised, produces income from personal exertion. It follows that a worker’s ability to earn income through personal exertion depends on the nature and quality of the workers capital asset and his or her capacity and willingness to use it to earn income. Thus, the worker’s physical and mental capacities to work are relevant, as are the type of work the worker is able to perform, the remuneration for that work and the hours that the worker is willing to work.”[120]
[120] Herald & Weekly Times Ltd and Victorian WorkCover Authority v Jessop [2014] VSCA 292 at paragraph [53]
116The plaintiff was not continuously employed in the three years prior to the injury. The plaintiff worked as a surveyor in Sydney for less than two weeks in July 2017, then returned to Iran and did not work again as a surveyor until he commenced with the employer in August 2018, where he remained until February 2019. On the evidence, he has not worked since ceasing work in February 2019. Therefore, there are no earnings to take into account in the three-year window subsequent to the injury.
117The payslips show the plaintiff was working, on average, approximately fifty-three-and-a-half hours a week.[121] I accept the defendant’s submission that this average figure is the figure which most fairly represents the plaintiff’s without injury earning capacity. The submission accords with the way in which the Court of Appeal dealt with the applicant’s capacity in Yirga-Denbu v Victorian WorkCover Authority.[122]
[121]DASCB 91-103 and Defendant’s Submissions dated 19 July 2023 at paragraph [88]
[122] [2018] VSCA 35 at paragraph [78]
118Doing the best I can, I find that the figure which most fairly represents the plaintiff’s past without injury earning capacity is reflected in the gross figure (expressed as an annual figure) based on what he was actually earning in 2018, as provided in the claim form and payslips. That is, $30 per hour for fifty standard hours ($1,500) and $51 per hour for three overtime hours ($153) on average, totalling $1,653 per week or $85,956 annually. The 60 per cent figure is $51,574 annually or $992 per week.
119To succeed in his application in respect of economic loss, the plaintiff must establish, on the balance of probabilities, that he does not have the capacity to earn at least $992 a week (being the 60 percent figure) in suitable employment and that this financial loss is likely to last through the foreseeable future.[123] In respect of residual capacity, there is an evidentiary onus on the defendant to establish the existence of suitable jobs which are within the plaintiff’s after injury capacity.[124]
(ii) Is the Plaintiff’s residence in South Australia relevant?
[123] Giankos v SPC Ardmona Operations Ltd [2011] VSCA 121 at paragraph [115] and Yirga-Denbu v
Victorian WorkCover Authority [2018] VSCA 35 at paragraph [82]
[124] Giankos v SPC Ardmona Operations Ltd (supra) at paragraph [116]
120The plaintiff was a resident of South Australia at the time he was working in Victoria for the employer. The notes of Dr Kundu of the Churchill Centre Family Practice at 400 Churchill Road Kilburn 5084, record the plaintiff attending the clinic on 11 August 2018 seeking repeat prescriptions, as he “will be away interstate for 4 weeks”[125] and, again, on 31 December 2018, with a note which refers to “[m]ay be going to Melbourne for 3 months for work”.[126]
[125] DASCB 53
[126] DASCB 53
121Between 13 August 2018 and February 2019, the plaintiff was working in Melbourne.
122Counsel for the defendant submitted that the plaintiff has demonstrated a willingness to travel for work prior to his injury and his residential location would not be an impediment for him to obtain a suitable role.[127] Counsel for the plaintiff agreed that the evidence allows the Court to make a finding that the plaintiff was prepared to travel away from his home to work “and if he was well … he would travel”.[128]
[127]T251 ꟷ T252
[128]T315, L10-11
123I accept those submissions. I find that the plaintiff has not restricted himself to his place of residence for the purposes of finding work in the past and has been willing to apply for work interstate. In particular, the work he performed for the employer in Melbourne was work outside his place of residence in Adelaide.
124The plaintiff’s current circumstances have not altered in any material way from his circumstances at the time he commenced employment with the employer. Therefore, I find that he is not currently limited, by reason of his personal circumstances, to employment in his local area.
(iii) Opinions on capacity – Plaintiff’s treating doctors
125Since his injury, the plaintiff has attended approximately sixty consultations with Dr Navani. I accept Dr Navani’s opinion that the plaintiff has capacity to return to work performing his pre-injury hours with the limitation of:
“…. alternative duties as per his medical restrictions which are:
• Administrative / office duties
• self pace / avoid sustained neck flexion work
• Avoid repetitive movements of the upper limbs”[129]
[129] DCB 46
126Mr Timms was asked to comment on capacity, but did not do so, as it was outside his specialty. Mr Timms noted that the plaintiff was working at the time he reviewed him.[130] This work was light office work the plaintiff was performing for the employer subsequent to his neck injury.[131]
[130] PACB 55
[131]T133, L21-23
127Treating physiotherapist, Mr Mirzaei, painted a very bleak picture of the plaintiff’s work capacity. His report described a:
“… minimal capacity to engage in light levels of admin-style employment for ... up to a maximum of 2 hours with regular movements at intervals of every 30 -45 min. With a gradual trial, this may be progressed to a maximum of no longer than 3 -4 hours – with no guarantee.”[132]
[132]PACB 62
128I do not accept this opinion for a number of reasons:
(a) first, the physiotherapist’s report contained no reference to Mr Mirzaei’s qualifications or experience in assessing capacity for employment;
(b) second, it does not appear as though Mr Mirzaei had considered the report of Dr Navani. In particular, Dr Navani opined that the plaintiff could work his pre-injury hours and could work in suitable employment. Doctor Navani’s Certificates of Capacity had been provided to Mr Mirzaei, but no reference was made to these in Mr Mirzaei’s report;
(c) third, Mr Mirzaei considered the plaintiff could not do the job of quantity surveyor because it “require[s] the ability to sit prolonged [periods] which [the plaintiff] lacks”.[133] This alleged requirement to sit for prolonged periods was not contained in the report to which Mr Mirzaei was referring;[134] and
(d) fourth, Mr Mirzaei reported that the plaintiff does not have the required qualifications for this role. This is incorrect, as the role requires a bachelor’s degree in building surveying, construction management, or another related field. The plaintiff has such qualifications from Iran, and they are recognised in Australia.
[133] Ibid
[134] DCB 145
129The plaintiff also relied on Dr Rowe. Dr Rowe assessed the plaintiff on 13 February 2023 and reported to the plaintiff’s solicitors that:
“… employment as a General Clerk or in office Administration may be suitable. … .
…
There will unfortunately always be a risk of reinjury, however I do consider there are positions where reasonable or at least acceptable risk can be managed. He should start any position at 4 hours a day 4 days a week for a period of a month and see how he progresses from there.”[135]
[135] PACB 84
130Dr Rowe did not have the opportunity to fully assess the plaintiff in the context of the plaintiff’s actual circumstances. Dr Rowe was unaware that the plaintiff had been able to study and successfully complete his training. Dr Rowe also was not provided with Dr Navani’s reports which attest to the plaintiff’s capacity for pre-injury hours in suitable duties. These aspects have significant bearing on Dr Rowe’s opinion, both with respect to the number of hours and with respect to the duties which the plaintiff can perform. In these circumstances, I do not accept the opinion of Dr Rowe on capacity.
131I prefer the opinion of Dr Navani, who has assessed the plaintiff over many visits, and who has an accurate history. Dr Navani’s progress notes refer to study[136] in recording that the plaintiff “wants to do Diploma”,[137] is “doing the course in Adelaide ,will (sic) finish in November”,[138] and “applying for job completes the course”.[139] In April 2021, Dr Navani noted that the plaintiff had finished the course.[140] I find that Dr Navani’s opinion on capacity is informed by his awareness that the plaintiff was able to commence and complete a course of study and his assessment of the plaintiff during frequent consultations with him during the period of study itself.
[136] DASCB 7
[137] DASCB 11
[138] DASCB 14
[139] DASCB 17
[140] DASCB 18
132I do not accept the plaintiff’s evidence that he was only able to study using significant sleep and rest periods:
“… something like … a standing desk, I put it there, I apply for 20 minutes for one job, I sleep, I again sleep, there I another … I manage to do the assignment for land surveying, I do the assignment, sometimes you have to write. … .”[141]
[141] T203, L29 ꟷ T204, L4
133I do not accept the evidence, because it is not supported by any contemporaneous note or report of any treating GP. Despite regular and frequent attendances both in Adelaide and in Melbourne, no mention is made of this apparently severe restriction on the plaintiff’s capacity to study.
134On 22 February 2023, Dr Sabetghadam noted that the plaintiff had been upskilling himself by undertaking a TAFE course to obtain a Certificate III in Land Surveying and was doing this course while working for the employer.[142] Dr Sabetghadam considered the plaintiff able to perform his pre-injury work. He is alone in this view. I do not accept the plaintiff could perform his pre-injury work without some modification. I do, however, accept his opinion that the plaintiff is able to perform a variety of other suitable employment options. This accords with the opinion of Dr Navani.
[142] DCB 72
135Dr Sabetghadam considered the plaintiff had capacity to perform all of the jobs provided in two MOVE reports comprising the 130-week Vocational Assessment and Labour Market Research Report.[143] Dr Navani considered the plaintiff could perform alternative duties at pre-injury hours with the following restrictions:
“• Administrative / office duties
• self pace / avoid sustained neck flexion work
• Avoid repetitive movements of upper limbs”[144]
[143] DCB 76
[144] DCB 46
and that some aspects of surveyor’s duties where these “fit within his medical restrictions”.[145]
(iv) Findings in respect of economic loss
[145] DCB 48
136Taking all the evidence into account, I find that the plaintiff has retained a capacity to work a standard forty-hour week as a general clerk (surveying) as provided in the MOVE Labour Market Research Report.[146]
[146] DCB 181-182
137In cross-examination, the plaintiff was asked whether he could do the general clerk (surveying) job with a sit/stand desk.[147] The plaintiff said he could only do it for two to three hours a day. For reasons I have already stated, I do not accept the plaintiff’s self-assessment of his limitations. I prefer the evidence of Dr Navani, who considers the plaintiff can work his pre-injury hours. According to his report, the pre-injury hours were sixty hours per week.[148] It is improbable that Dr Navani would certify the plaintiff fit for long hours if he really believed the plaintiff had the restrictions which the plaintiff told the Court about.
[147] T202 ꟷ T203
[148]PACB 36
138Even working a standard forty-hour week, the plaintiff could work as a general clerk (surveying) and earn $1,223 per week, which exceeds the threshold of $992. Given his established preparedness to work a considerable distance from where he resides, I do not consider it of significance that the occupational rehabilitation provider was unable to locate job advertisements for this position in Mansfield Park, where the plaintiff resides.[149]
[149] DCB 182
139The position description for general clerk (surveying) falls within the restrictions nominated by Dr Navani. I do not accept the submissions made by the plaintiff’s counsel that “the bulk of the job” involves data entry and word processing tasks.[150] Although the position is described as “sedentary”, with constant sitting at a workstation, there is no suggestion in the description that the plaintiff could not “self pace” or “avoid sustained neck flexion”, as suggested by Dr Navani’s restrictions.
[150]T321, L14-27
140The position of general clerk (surveying) is also a job within the plaintiff’s career orientation, as he completed additional study in Australia for surveying and, according to his evidence, he has applied for 100 to 170 jobs as a surveyor post injury.[151] It is largely a sedentary role, involving administration-type duties.[152] I am further fortified in my conclusion on capacity, because the plaintiff completed additional study after his injury, including full-time study in 2019, during which year he successfully completed five units in Semester 1 and seven units in Semester 2.[153]
[151]T185, L2-5
[152] DCB 181
[153]DCB 294
141If I am wrong about Dr Navani’s restrictions falling within the description for this position, I consider that the plaintiff has capacity to perform the work of a real estate agent’s representative and/or a property manager in a real estate agency, as provided in the CoWork report.[154] According to the task analysis in that report, the maximum lift in the job was 4.5 kilograms, but not required on a daily basis. The physical demands of the job include standing and sitting, both of which are described as self-regulated. This falls within the “self pace” restriction imposed by Dr Navani. Any computer work required in the job is described as of “short duration”, which falls within the “avoid sustained neck flexion work and avoid repetitive movements of upper limbs” imposed by Dr Navani. In South Australia, an additional online “study at home at your own pace” course of nineteen units is required to be completed to work for a land agent.[155]
[154]DCB 212 and DCB 256-266
[155]DCB 260-261
142The plaintiff has completed courses in installing security cameras into homes and a small business course, Effective Communication in the Workplace, and a Diploma in Surveying. He also holds a security licence, having completed the course in Australia. The plaintiff told the Court he had done computer work for his employer on light duties,[156] does some computer work at home,[157] and was able to study online at home using his computer.[158] I therefore find he has capacity to retrain by completing the online course.
[156]T148
[157]T164, L6
[158]T167, L10-24
143In 2020 and 2021, while in Iran, the plaintiff was able to successfully complete an Australian online training course. I find, with retraining in the nineteen-unit online course, the plaintiff could perform the work of a real estate agent’s representative and/or a property manager in a real estate agency, which have a weekly income of $1,869 or annually $97,188.[159]
[159]DCB 212
144According to the CoWork report, a “Real Estate Salesperson” in Adelaide can earn between $85,000 and $96,0000 or weekly $1634 to $1846.[160]
[160]DCB 265
145I find the plaintiff has retained a capacity to work full time as a general clerk (surveying) and/or a real estate agent’s representative and/or a property manager/real estate salesperson in a real estate agency. The plaintiff, therefore, has not made out the necessary loss of earning capacity.
Psychological or psychiatric condition
146The defendant submits that the plaintiff had a pre-existing psychological condition which improved over time.[161]
[161]Defendant’s Submissions dated 19 July 2023 at paragraphs [37]-[39]
147The plaintiff submits that the pre-existing psychological condition was relatively minor and did not inhibit the plaintiff’s work capacity.[162]
[162]Plaintiff’s Submissions dated 24 July 2023 at paragraph [49]
148The existence of prior counselling by a psychologist and antidepressant medication, together with a history of longstanding depression, means that there is a pre-existing psychiatric or psychological condition that needs to be considered by the Court when assessing the plaintiff’s claim under s325(1)(c) of the Act.
149If the plaintiff’s pre-existing psychological condition is said to have been aggravated by his workplace injury, then in order to succeed under s325(1)(c) of the Act, the plaintiff must satisfy the Court that the aggravation, itself, is severe.[163]
[163] Petkovski v Galetti [1994] 1 VR 436 at 439 and 444 (per Southwell and Teague JJ)
Assessment of the Plaintiff’s pre-injury psychological condition
150The plaintiff had a pre-existing psychological or psychiatric condition. On 19 January 2018 (eight months prior to commencing employment), Dr Kundu referred the plaintiff to Annette Berwald (psychologist):
“… for CBT post recent stres , finding difficult to concentrate. he has recent mental health plan”.[164]
(sic)
[164] DASCB 77
151A second referral appears to have been made on 11 October 2019 by the same doctor confirming “he is much better with your counselling and fluoxetine”.[165]
[165] DASCB 87
152On 16 June 2018, (one month prior to commencing employment), Ms Berwald reported to Dr Kundu, with a history that the plaintiff was reporting several significant stressors which impacted on his emotional functioning. These included a negative experience with a TAFE teacher and the loss of his job in Sydney after he sustained leg injuries in a car accident. The report referred to:
“… a history of long-standing depression which was triggered by the breakup of a significant relationship when he was in Iran … he used antidepressant medication at the time which he said was helpful.”[166]
[166] DCB 20
153The plaintiff gave evidence about his attendance on Ms Berwald. He said that he saw her in 2018, but it was more like she was a family member, like someone he respected. In particular the plaintiff said:
“I didn’t have psychological problem, it was a free 10 session Medicare, it was a free 10 session Medicare and he was like a mentor, it is not some doctor, written in doctor’s duty, but he was like a mentor for me. … .”[167]
(sic)
[167] T48, L30 ꟷ 49, L3
154The plaintiff did not accept that he had had longstanding depression, as written in Ms Berwald’s report to Dr Kundu, and said he had not ever suffered from depression prior to July 2017.[168] Once again, he suggested to the Court that he had only attended for treatment because the sessions were free.
[168] T50-51 and T106
Findings about the Plaintiff’s pre-injury psychological condition
155I accept the plaintiff’s evidence that he considered Ms Berwald to have been a support or a mentor, as he was in Australia alone and without family support. However, I do not accept he had no psychological condition.
156According to Ms Berwald’s report, the symptoms reported by the plaintiff were “increasing depressive symptoms including psychomotor retardation and hypersomnia”.[169] I accept Ms Berwald’s characterisation of what the plaintiff told her as “long-standing depression”. Ms Berwald saw the plaintiff over six sessions and was in a position to observe his demeanour and to clarify his meaning when she recorded that history. Importantly, she reported that she had encouraged the plaintiff to discuss antidepressant medication with the GP.
[169]DCB 20
157I reject the plaintiff’s evidence about the nature of the sessions that he engaged in with his psychologist. In the circumstances, however, nothing turns on it. It is the psychologist’s opinion which is of importance to the Court. That opinion includes the reference to the need to discuss antidepressants with his doctor, and to the plaintiff having engaged well in the sessions and reporting a benefit from attendance.[170]
[170] Ibid
158On 18 June 2018, one month before commencing employment with the employer, Dr Kundu noted a history of “depression stopped meds last year”[171] and recommended a review of the plaintiff’s mental health plan. On this date, contemporaneous with the suggestion by Ms Berwald, Dr Kundu prescribed Fluoxetine, a 20-milligram capsule once daily, with repeat prescriptions. This medication was also prescribed by Dr Kundu on 11 August 2018, with a history that the plaintiff will be away interstate for four weeks.[172]
[171] DASCB 52
[172] DASCB 52-53
159I find that, prior to his neck injury, the plaintiff suffered from depression and anxiety, was attending Ms Berwald for counselling, and was prescribed antidepressant medication by his GP. The condition did not prevent him from working.
Assessment of the Plaintiff’s post-injury psychological condition
160On 31 December 2018, one month after the neck injury became symptomatic, the plaintiff again attended Dr Kundu. He reported “anxiety neck and knee pain”[173] and Dr Kundu once again prescribed Fluoxetine, 20 milligrams daily, and reviewed the plaintiff’s care plan.[174] On 8 April 2019, this medication was once again prescribed in the same dosage and frequency, with a recommendation for psychological review.[175]
[173] DASCB 53
[174] DASCB 53
[175] DASCB 54
161On 14 March 2019, a different treating psychologist, Lisa Costa, reported her diagnosis of “Major Depression” and “severe anxiety”.[176] In her undated report to the plaintiff’s solicitors, Ms Costa provided no information which assists the Court in understanding the diagnosis. The report contains no history, no reason for the diagnosis, and makes no reference to the treatment provided. There is no explanation, or path of reasoning, for Ms Costa’s opinion that the plaintiff is permanently incapacitated. The report relies on self-evident and circular statements.[177] It is unhelpful. I give little weight to it.
[176] PACB 63
[177] PACB 67
162On 23 March 2023, Dr Leon Turnbull recorded a history of prior antidepressant use “in the context of a reaction to a knee injury, and there was already some interaction with a psychologist”.[178] Dr Turnbull does not appear to have received the report of Ms Berwald. Dr Turnbull diagnosed “Adjustment Disorder” which was a “milder condition” than the Major Depressive Disorder diagnosed by psychologist Lisa Costa.[179]
[178] PACB 102
[179] PACB 103
163Two other psychiatric opinions have been tendered, the first of these being from Dr Dush Shan and the second, Professor Saddichha Sahoo. Like Dr Turnbull,[180] both Professor Sahoo[181] and Dr Shan[182] diagnosed adjustment disorder with mixed depression and anxiety.
[180] PACB 103
[181] DCB 83
[182] DCB 92
Comparison of the Plaintiff’s pre-work injury and post-work injury psychological condition
164The plaintiff identified, in his evidence,[183] and the notes of Dr Tofighi confirm, that the onset of cervical spine symptoms was first noted by the plaintiff in or around November 2018.[184] Accordingly, any psychological condition or reaction which is consequential on the cervical-spine injury must be assessed subsequent to that date.
[183] T55, L4-16
[184] DASCB 65
165Prior to November 2018, the plaintiff was receiving treatment from his GP in the form of Fluoxetine, 20 milligrams once a day[185] and attending Ms Berwald[186] with “increasing depressive symptoms including psychomotor retardation and hypersomnia”.[187]
[185] DASCB 52-53
[186]DASCB 77
[187] DCB 20
166After November 2018, the plaintiff was again prescribed 20 milligrams of Fluoxetine on a regular basis by Dr Kundu. This dosage was doubled for a period of one month only, on 24 June 2019, with Dr Kundu noting “anxiety and depression counselling”. From 9 October 2019, the prescriptions for Fluoxetine resumed their pre-injury levels at 20 milligrams once a day. On 12 May 2021, Dr Kundu recorded a history of:
“Has been overseas in Iran for one year
out of quarantine last month
feeling anxious …
…
difficulty sleeping
has stopped Fluoxetine
wants to try Endep
has script given in Melbourne”.[188]
[188] DCB 59
167The reason for the visit was recorded as “anxiety” and 20 milligrams of Fluoxetine and 10 milligrams of Endep were prescribed.
168The Endep medication was first prescribed for the cervical spine condition on 18 February 2019 by Dr Navani. Thereafter, repeat prescriptions were written every few months.[189] Dr Navani’s notes contain no reference to any psychiatric or psychological symptoms. Save for Dr Kundu’s entry on 6 July 2021 of “anxiety”, there are no other references to psychiatric or psychological symptoms.
[189] DASCB 5-6
Following the neck injury, is the Plaintiff incapacitated as a result of any consequential psychological condition?
169The plaintiff bears the onus of placing:
“…before the Court evidence that will not only permit the Court to make findings about the consequences of impairment and loss but also enable the Court to evaluate those consequences in order to judge whether they may be described as ‘serious’ as stipulated in the Act.”[190]
[190] Steen v WorkSafe Victoria & Anor [2014] VSCA 299 at paragraph [3]
170In the case of an impairment under sub-paragraph (c) of the definition, the evidence must be such as to enable to court to judge whether the consequences of any work injury related aggravation of his pre-existing condition are “severe”.
171The plaintiff’s counsel accepted that the report of treating psychologist, Ms Costa, contained circular reasoning and was not of much utility in the plaintiff’s case.[191] A further submission was made that the high point of the evidence about the s325(1)(c) case was Dr Turnbull, in particular, his opinion that the plaintiff could not perform work which requires precision and sustained focus.[192] Counsel for the plaintiff accepted that Dr Turnbull did not provide any path of reasoning which allowed the Court to understand his opinion that the plaintiff cannot concentrate or focus.[193]
[191]T309-311
[192]T311, L4-17
[193]T312
172Counsel for the defendant submitted that there was little, if any, difference in the nature of the plaintiff’s ongoing treatment.[194] Counsel for the plaintiff accepted that the psychological symptoms and treatment prior to the neck injury were “about the same” as the treatment and symptoms after the neck injury.[195] I accept these submissions, both are supported by the contemporaneous evidence.
[194] Defendant’s Submissions dated 19 July 2023 at paragraphs [37]-[39]
[195]T273, L22-31
Assessment of the psychological evidence regarding capacity
173In his first report, Dr Turnbull opined that the plaintiff had limited capacity for employment on psychiatric grounds (ten to fifteen hours a week) for roles which do not require skill, precision or accuracy. Dr Turnbull undertook a single assessment over a video link. His report made no mention of the courses of study the plaintiff successfully completed after his neck injury. I consider the ability to undertake and complete the courses of study to be significant, as it demonstrates an ability to concentrate and to be accurate. I do not accept Dr Turnbull’s opinion, as it is based on an inaccurate history.
174Following his first report, Dr Turnbull received a report by CoWork and provided a supplementary report which outlined:
“I am torn a bit between the combination of his motivation to work combined with his skills, against the ongoing disturbances in his mental functioning.
…
At best I think he could do 15 hours a week, but that is not a concrete psychiatric capacity, and it is a rather flimsy one, and is dependent on in a general sense all things going well.”[196]
[196] PACB 108
175The CoWork report specifically refers to the plaintiff having completed post-injury study online from Iran, as well as in Australia,[197] including having excelled in mathematics.[198] The failure by Dr Turnbull to address these matters, in circumstances where he was specifically asked to consider the CoWork report, impacts on the reliability of his opinion. I find I am unable to accept his opinion regarding the limitations on the plaintiff’s capacity to work.
[197] DCB 192
[198] DCB 198
176The defendant relies on two reports from Dr Shan. In the first report, dated 16 March 2023, Dr Shan makes reference to the plaintiff’s “ongoing study”, as set out in the plaintiff’s affidavit affirmed 26 April 2022,[199] and Dr Shan also observes the plaintiff to be:
“… alert, orientated and capable of concentrating adequately when he had to such as during the examination. His recall for the history showed no evidence of issues of memory.”[200]
[199]DCB 87 and 88
[200]DCB 91
177Dr Shan found the plaintiff could work full time in any position that is suitable for his physical complaints. I accept this opinion. I prefer the evidence of Dr Shan to that of Dr Turnbull on the issue of capacity because Dr Shan took into account the plaintiff’s ability to study, and his opinion regarding capacity is consistent with the opinion of Dr Navani. I therefore find the plaintiff has no incapacity for work on psychiatric grounds.
178Finally, the defendant relies on a report from Professor Sahoo, dated 9 June 2021. Professor Sahoo assessed the plaintiff on 27 May 2021 and opined that the plaintiff presented with a mostly remitted adjustment disorder.[201] As Professor Sahoo’s report was prepared over two years prior to the date of hearing, it is of limited assistance to the Court in assessing the plaintiff’s current mental state.
[201] DCB 82-83
Findings in respect of the Plaintiff’s psychological condition
179Taking into account the totality of the psychiatric/psychological evidence tendered, there is insufficient evidence supporting the claim that any aggravation of the pre-existing condition meets the test of “severe”.
180The plaintiff does not have any incapacity to work his pre-injury hours on psychiatric grounds.
181Accordingly, the plaintiff’s claim under s325(1)(c) of the Act fails in respect of both pain and suffering and loss of earning capacity.
Conclusion
182I have granted leave to the plaintiff to commence proceedings in respect of pain and suffering damages on account of the aggravation of the cervical-spine condition.
183I have dismissed the economic loss claim.
184I have dismissed the plaintiff’s claim under s325(1)(c) of the Act in respect of both pain and suffering and loss of earning capacity.
185I will hear the parties with respect to costs.
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