Mansouri v VWA
[2024] VCC 1835
•20 November 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No.CI-23-05458
| Ahmad Mansouri | Plaintiff |
| v | |
| Victorian Workcover Authority | Defendant |
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JUDGE: | Clayton | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 & 16 October 2024 | |
DATE OF JUDGMENT: | 20 November 2024 | |
CASE MAY BE CITED AS: | Mansouri v VWA | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1835 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the spine – psychiatric injury –credit and reliability of evidence - where credibility of plaintiff diminishes reliability of medical opinion - absence of reliable evidence of consequences of physical or psychiatric injury – disentanglement of pain consequences
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act2013 (Vic)
Cases Cited:Nikolic v Transport Accident Commission [2020] VSCA 148 [64]; Dordev v Cowan [2006] VSCA 254 [14]; Meadows v Lichmore [2013] VSCA 201
Judgment: The plaintiff’s application is dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr N Horner | Zaparas Lawyers |
| For the Defendant | Ms M Cameron | TG Legal and Technology |
HER HONOUR:
1Mr Mansouri seeks leave to pursue a claim for common law damages for pain and suffering and pecuniary loss pursuant to s335 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic).
2He says that, in the course of his employment with AgCab between November 2019 and February 2020, he suffered injuries to various body parts and has since developed a psychiatric condition.
3At the hearing of his application, counsel informed the court that, pursuant to subparagraph (a) of the definition of serious injury at section 325, Mr Mansouri relied on impairment to the spine caused by aggravation of lumbar spondylosis to establish a permanent serious impairment or loss of a body function. He no longer relied on impairments to his shoulders or his bilateral herniae. Mr Mansouri also claims, pursuant to subparagraph (c), a permanent severe mental or permanent severe behavioural disturbance or disorder, being a major depressive disorder.
4In order to be granted leave, he must establish that the pain and suffering and loss of enjoyment of life consequences can be fairly described as at least very considerable and certainly more than significant or marked when compared with other cases in the range of possible impairments or losses. To pursue a claim for pecuniary loss he must establish he has a loss of earning capacity of 40% or more, when comparing the gross income from personal exertion he currently capable of earning, with the gross income he was capable of earning from personal exertion prior to the claimed injury.
Decision
5For the reasons that follow I am not satisfied that Mr Mansouri has sustained a serious injury and accordingly his application is dismissed.
Background
6Mr Mansouri was born in Iran in 1981. He finished school in Iran and worked as a diesel mechanic. He did military service and studied at university for one term. He then worked in a supermarket for about four or five years.
7He came to Australia as a refugee in 2013. He lived in Adelaide for a year before moving to Melbourne at the end of 2014 or early 2015. He worked casually as a kitchen hand waiter for about three months at a restaurant in Roxburgh Park.
8He moved to Sydney to find more consistent work. He lived in Sydney for about three years. While in Sydney he worked installing aluminium windows and doors as a subcontractor for two companies. He estimates he did this work for about five months.
9He returned to Melbourne in 2019. He obtained work with Prestige Windows installing aluminium doors and windows. He did this work for two weeks.
10On 23 November 2019 he started working with AgCab as a labourer.
11AgCab makes demountable portable cabins. Mr Mansouri says the work at AgCab was very heavy and involved heavy and repetitive lifting, bending and twisting. He said he had to lift 8m beams that weighed 100kg, bundles of metal weighing 25-30kg and unload containers about twice a month.
12The company closed down for two weeks over Christmas 2019. Mr Mansouri says that when he returned to work in January 2020 he was struggling with back, neck and groin pain. He said the pain started around 14 January 2020. In a report by Dr Michael Lucas dated 23 March 2020, Dr Lucas records that Mr Mansouri recalled “some symptom awareness prior to taking his workplace Christmas break” and that when he returned after that break, he “was not the same person” and was experiencing pain in his lower back, neck and groin.[1]
[1] Defendant’s Court Book (“DCB”) 26, 27
13He said his back pain travelled down into his legs. He said he did not want to complain because it was a good job with good pay, and he was concerned about his employment if he complained. He continued to work his usual hours and duties.
14His employment was terminated on 14 February 2020. He says this was because he was struggling with the work. The employer says that this was because he was warned that he needed to do better, but his work did not improve.
15On 21 February 2020 he attended a general practitioner, Dr Yaraghi, complaining of back and neck pain. He was prescribed Voltaren.
16On 25 February 2020 he returned to his general practitioner with back and groin pain. It appears on this occasion he saw his usual general practitioner Dr Hamie Hassan.
17On 25 February 2020 he had a CT scan of low back and on 28 February 2020 he had an ultrasound for hernias.
18In March 2020 he returned to his general practitioner for back and neck pain.
19He was referred to Mr Devan Gya for groin pain. Mr Gya recommended surgery for inguinal herniae.
20In March 2020 he underwent ultrasound on his right and left shoulder and was referred to Mr Ash Chehata for bilateral shoulder pain and restriction. Mr Chehata recommend continued conservative treatment.
21In April 2020 he was recommended to have cortisone into his right shoulder.
22He was referred to pain specialist Gavin Weekes for pain in his right shoulder and low back. Dr Weekes recommended bilateral sacroiliac blocks and prescribed baclofen which did not help and subsequently norflex. The sacroiliac block procedures were not approved.
23In May 2020 he commenced treatment with a psychologist Dr Farzin Shakhi for work related stress anxiety and depression.
24In July 2020 he was referred to psychiatrist Dr Samir Ibrahim.
25In November 2020 he commenced physiotherapy for low back pain.
26In March 2021 Dr Weeks prescribed gabapentin, dothep and tramadol for pain management.
27On 13 April 2021 he had CT guided facet joint injection. Mr Mansouri said this did not help with his low back pain.
28In mid-2021 Dr Adam Boyt recommended bilateral hernia repair which was undertaken on 14 October 2022.
29In November 2022 Dr Weekes suggested a pain management course. Mr Mansouri said he could not complete this course due to his limited English skills.
Consequences
Back pain
30Mr Mansouri says his worst pain is in his back. He says his back pain is frequently 10 out of 10 severity.
31While giving oral evidence he said he was experiencing 10 out of 10 pain in his neck, shoulders and lower back, as well as numbness in his right hand, fingers and a feeling that the soles of his feet were “on fire”.[2]
[2] Transcript (“T”) 48 Line (“L”) 7
32He says his back is stiff and weak, and that he sometimes gets pins and needles into his buttocks and down his legs to his toes. This is worse on the left.
33Bending, twisting and heavy lifting make his back pain worse.
34He says he has difficulty standing, sitting or walking for more than 10-15 minutes. After this time he needs to rest. Walking upstairs aggravates his pain.
35Although his pain is always significant, it is of variable intensity and some days is worse than others.
Neck pain
36Mr Mansouri says he has constant neck pain which extends down to his shoulder and right arm and into his hand and fingers.
37He also has a stabbing pain in his neck of variable intensity.
38He struggles with repetitive movements, especially above shoulder height.
Hernias
39He has numbness over the site of his hernia repairs.
40He has had recent investigations through Dr Boyt to determine the cause of discomfort and numbness in his left groin. Exploratory surgery may be necessary to determine the cause of his ongoing pain.
41Mr Mansouri said in his affidavit that the discomfort caused by his hernia repair surgery is manageable. However, recently he has had increased pain at the site of his left hernia repair. In oral evidence he said this was a sharp, sudden pain which comes and goes. He said that, as he sat in the witness box, the left hernia repair site was causing him pain, and that if he walked ten or fifteen minutes “the pain will kick in” and he would have to cease doing the activity.[3] He said driving also causes the hernia pain to start, and the maximum time he could drive before he got that hernia pain would be 30 minutes.
[3] T44 L18
42The hernia pain also wakes him at night, makes it more difficult for him to get back to sleep and made it difficult to do some activities, for example he has to sit on a chair in order to pull up his pants.[4]
[4] T45
Psychiatric
43Mr Mansouri said his mental health has deteriorated due to constant pain.
44He struggles with low motivation and energy and feelings of despair.
45He is irritable and quick to anger. He struggles with thoughts of self-harm. He is easily overwhelmed. He has poor self-esteem and self-confidence. He feels he has lost his identity. He is low and anxious.
Impact on his life
46Mr Mansouri says he has difficulty sleeping and wakes 2-3 times a night with pain.
47He estimates he gets only 3-4 hours of broken sleep each night.
48He has difficulty showering and getting dressed. He uses a chair in the shower. Reaching above head height is difficult which makes household tasks difficult.
49He has difficulty bending down to put on trousers and socks. He has to sit to put on pants or shoes.
50He struggles to mop or vacuum because of low back pain and avoids heavy lifting, for example, a basket of washing would be too heavy and would cause increased pain. Repetitive reaching and pulling when mopping and vacuuming are difficult because of neck pain and these activities can also aggravate the symptoms in his arm.
51Although he is able to drive, he only drives locally for about 15-20 minutes at a time. This is because of his back pain which is exacerbated by driving. He often gets radiating symptoms into his leg. The medication he takes can make him drowsy which also limits his driving ability at times.
52He says he used to swim 3-4 times a week, but he no longer swims and now he just walks in the pool.
53He says he used to go for walks with friends but is now restricted in his walking capacity because of pain.
54He used to love going hiking and exploring nature and driving to remote locations including beaches and forests. He now no longer hikes.
55He does go on some road trips but much less frequently than before his injury, as sitting as a passenger also causes significant back pain. Local tourism was an important hobby, and so he continues to pursue this for his mental health, even though it causes him pain to be a passenger in a car.
56He used to enjoy gardening, but now struggles with heaving lifting, bending, squatting or twisting which aggravates his back and neck pain. He used to enjoy growing his own fruit and vegetables and no longer does this because of his injuries.
57He says that sitting holding a mobile phone for a long time causes pain in his neck and right shoulder.
58He says he is generally more anxious and depressed and this, as well as his level of pain, causes him to socialise less and to be more isolated.
59He has not worked since February 2020. He does not consider he has any capacity to do any work because of his pain, and the side effects of the medication he takes for his pain, and his psychiatric condition which he says is caused by pain.
Medication and treatment
60He takes gabapentin and tramadol for pain, dothep and neulactil for depression and anxiety. He takes anti-inflammatory medication Norflex.
61He continues to see his psychologist and psychiatrist. He attends his general practitioner.
Credit and reliability of the plaintiff
62The defendant says Mr Mansouri is entirely unreliable. He was evasive, gave non-responsive answers, flatly denied numerous aspects of his prior medical history despite documentary evidence of those matters, and gave implausible evidence both about his degree of pain and his recollection of events.
63The defendant says it matters little if Mr Mansouri was fabricating his evidence or was simply unreliable, the outcome is the same, which is that I cannot be satisfied as to the consequences he claims that arise from his injuries.
64Further, the defendant says the plaintiff’s unreliable history to doctors renders the opinions provided unreliable.
65Counsel for Mr Mansouri did not attempt to argue that Mr Mansouri was a reliable witness, but submitted that his “presentation in the witness box…really speaks of a severe mental or behavioural disturbance”.[5]
[5] T77 L15-17
66Counsel had little option but to make such a submission because Mr Mansouri was a most unimpressive witness.
67He had very little memory of many matters. He could not remember how long he lived in Melbourne after arriving from Adelaide and before moving to Sydney.[6] He could not remember how long he worked as a waiter but estimated “perhaps two or three months”.[7]
[6] T12 L26
[7] T12 L30-31
68He could not remember how long he had worked installing doors and windows in Sydney. When pressed he said it was “a few months”. [8] When further pressed he said “more than three months” and then thought it might have been around five months.[9]
[8] T13 L29
[9] T14 L1-3
69He said he could not remember the company he worked for in Sydney. Shortly after giving this evidence I asked him about his work in Sydney and he was able to recall that he had worked for two companies and the names of each of them.
70It is not uncommon that questioning provokes memory. Suddenly remembering something that was previously unavailable to one’s recollection is a common and familiar experience. However, I formed the view that Mr Mansouri said he could not remember who he worked for to support his claim that he has a poor memory. There were a number of occasions when he gave non-responsive answers to counsel, but was more forthright when questioned by me, which caused me to form the impression that, rather than giving his evidence in a straightforward manner, he was giving selective answers depending on who was asking the question. When opposing counsel asked him a question he frequently said he could not remember but was able to provide more fulsome detail when questioned by me.
71He could not remember most attendances at doctors including very recent medico-legal examinations. On several occasions he repeated that he could not remember things because of his medication, his mood and his physical health. He said “I can’t even remember what happened yesterday, and you’re asking me about the evidence over the course of several years.”[10]
[10] T47 L23-25
72In his affidavit he said he did not tell anyone of his injury prior to his termination because he was worried about losing his job. However at trial he said he had told his supervisor, Esa Sadouni, that he was injured. He believes that Esa told management and this was why he was terminated. When asked why he had not said that in his affidavit he said “I couldn’t remember. Now you were just asking me, I just recall”.[11]
[11] T33 L29-31
73It was put to him that he was terminated because he had been slack or lazy at work. The defendant relied on an affidavit of Ray Yayintas who was not cross-examined. Mr Yayintas said that Mr Mansouri knew how to use power tools and was “quite hands on” but was “very lazy”. Mr Yayintas said “he was good in the beginning however became lazy a month into the job”. Mr Yayintas said after the Australia day weekend he told Mr Mansouri he had to lift his game as “he was slacking off quite a bit” and if he did not improve he would have to find someone else. Mr Yayintas said “nothing changed” and he received continued complaints from staff about Mr Mansouri so he “let him go” on 16 February 2020.
74Mr Yayintas said he had not been told and was not aware of any injury Mr Mansouri suffered during his time at AgCab. He said Mr Mansouri had not mentioned any injuries prior to being terminated. He did not show any signs of struggling at work. He said he received a text message from Mr Mansouri on 10 March 2020 which stated that Mr Mansouri had inguinal hernias on both sides that required surgery. Mr Mansouri did not mention his back or neck and said he wanted assistance with medicals. He did not mention any heavy lifting, pulling or manoeuvring.
75Mr Mansouri was evidently familiar with the contents of Mr Yayintas’ affidavit. He said “you are not supposed to accept anything that they say under a statement” and that “not necessarily everything under his statement is correct”.[12]
[12] T36 L15-20
76Mr Mansouri said if he was lazy he would have been terminated from the job at the beginning. He said he always performed the job well, he followed all the instructions he was given and, up until the time he ceased work on 16 February 2020 he was performing the work described in his affidavit:
77He said he first noticed pain in his back and groin around 14 January 2020 after doing heavy lifting at work. He also developed neck pain because of the “repetitive and heaving lifting”.[13] He said the pain in his back travelled down the back of his legs from time to time. He said he had the pain while he was at work but did not see a doctor because “whilst working I didn’t even have the time to see a doctor”.[14]
[13] T5
[14] T38 L20-21
Evidence about past history of pain
78The first time a proposition was put to him that he had problems with back pain prior to starting work at AgCab his response was “let me explain something. If I had problems, I reckon that would have become obvious with Prestige”.[15] He said “the fact that I am taking medication is saying I am not lying. Why would the doctors want to make a false statement”.[16]
[15] T17 L17-18
[16] T91
79He denied ever having back pain prior to working with AgCab but said he had a muscle spasm and used gel.[17] This might suggest that Mr Mansouri misunderstood what was being asked, and was conflating the experience of back pain with a diagnosis of a back disorder. However, while on this first occasion when he was asked about back pain, I might have been able to accept that Mr Mansouri did not understand the question, despite the assistance of a very able and diligent interpreter, it quickly became apparent that Mr Mansouri denied the existence of any back pain at all, prior to his work at AgCab.
[17] T17-18
80It was put squarely to him “So the answer to my question is, yes, you had experienced back pain in Australia before you started working at AgCab correct?” – I’m saying I don’t have.”[18]
[18] T28 L5
81Counsel, attempting to be completely fair to Mr Mansouri and to give him every opportunity to clarify his evidence, sought three times to make sure that he understood what was being put to him:[19]
“And I just want to make it entirely clear. So you say, do you, that before you started working at AgCab, you'd never experienced pain in your back?---No.
Do you mean that - as in, no, you had never experienced pain in your back or - - -?---Can you tell me what pain you're trying to seek?
Well, I'm asking you whether or not you say before you started work at AgCab, you had experienced pain in your back?---No.”
[19] T19 L10-17
82Counsel no doubt sought this clarification because she was about to take Mr Mansouri to medical material that suggested the contrary.
83On 27 August 2015 his general practitioner Dr Hamie recorded an attendance by Mr Mansouri with a sore throat, aches and pains and with “back sore”. Mr Mansouri confirmed he spoke with this doctor in Arabic, a language in which he is fluent, and never had any difficulties communicating with this doctor. Nevertheless Mr Mansouri disputed that he had told Dr Hamie he had a sore back and suggested Dr Hamie did not understand him correctly.
84Given that the attendance appears to be primarily for cold and flu type symptoms, and the “sore back” complained of at that time might have been part of the general body aches that can accompany a flu, it is understandable that Mr Mansouri might not recall this presentation and might dispute that he had “back pain” as opposed to general body aches at that time.
85However on 9 November 2015 Dr Hamie recorded “sudden onset after carrying heavy stuff. Mechanical musculoskeletal lower back pain. Radiating to groin and lower leg”.[20]
[20] DCB 139
86Mr Mansouri said he could not recall telling Dr Hamie this. He did not accept that, even though he did not remember this attendance, he experienced back pain in November 2015. He said he had not experienced pain “because from the dates that’s been referred to in here till I was, you know, till the injury, I was working, no issues”.[21] In fact, Mr Mansouri had barely been working, and his representation that he was “working, no issues” is an overstatement.
[21] T20 29-31
87When asked “just to be clear” whether Dr Hamie’s note was an accurate record of the back pain he was experiencing in November 2015 Mr Mansouri said “I say I can’t remember. If it is said so in here, there could have been a mistake”.[22] When asked again whether he had back pain in November 2015 he said he did not.
[22] T21 L2-4
88On 17 December 2015 Dr Hamie again recorded severe back pain radiating to left groin and lower leg and referred Mr Mansouri for a CT scan.[23] Mr Mansouri was asked whether he accepted Dr Hamie had recorded what Mr Mansouri had reported at that time. Mr Mansouri said “I’m saying this one more time. Perhaps Dr Hamie misunderstood what I was saying. The reason why I was referring to him, was going to see him, was for hernia purpose”.[24]
[23] DCB 138
[24] T21 L16-19
89He did not accept that he had a CT scan in December 2015, and said that he could not recall. He did not remember Dr Hamie explaining the radiology to him in detail, as recorded by Dr Hamie. Dr Hamie recorded on 21 December 2015 that Mr Mansouri still had “very strong back ache”.[25] Mr Mansouri denied he had any back ache in December 2015.[26]
[25] DCB 60
[26] T23 L29
90He accepted, though he could not remember, that he had attended physiotherapy in December 2015, albeit that he denied having back pain. He said “I’m not denying this, but as I mentioned, I cannot remember. They’ve got five sessions per year. The doctors would definitely refer us to this service”.[27]
[27] T24 L3-6
91At some point between December 2015 and March 2016 Mr Mansouri had a right shoulder X-ray and ultrasound.
92On 11 January 2017 when Mr Mansouri was living in Sydney, he attended his general practitioner Dr Aljumba after a fall. The medical record has recorded a 7-8 metre fall from a scaffold. He was referred for a CT scan for head trauma. He was asked whether he had back pain following that fall. He said that he had not fallen from a scaffold and had fallen only 1-1.5 metres from a ladder. I accept that it is unlikely he had fallen 7-8 metres.
93On 12 January 2017 he attended Dr Aljumba again for follow up. She noted that the CT scan had shown no sign of fracture or bleeding and she provided reassurance. She noted that Mr Mansouri was worried about rib fractures as he landed on his right sided chest. She referred him for rib and spine X-ray.
94He said Dr Aljumba sent him for an X-ray “just to make sure I was quite okay” and denied any back pain from that fall.[28]
[28] T25 L14-15
95On 13 January 2017 he again attended Dr Aljumba who noted he was feeling better but still felt pain all over his ribs. She reassured him that the x-ray was normal. She recorded that this was the second time he had had a fall with “no trigger from height”.[29]
[29] DCB 145
96Mr Mansouri attended Dr Aljumba again on 22 January 2017. The record notes “back pain getting worse since the fall” with pain over the thoracic area. Mr Mansouri did not accept that was an accurate representation of his presentation and said that Dr Aljumba had misunderstood him. When I sought to clarify if he had any pain, he said “back muscle” and that it was “quite natural after a fall to get muscle pain”. When asked where the pain was, he said it was in his back but was unable to remember whereabouts in his back and said “this goes back to several years ago. The issue was rectified with a simple tablet”.[30]
[30] T26 L21-23
97Dr Aljumba referred Mr Mansouri for a thoracic spine x-ray and he returned on 29 January 2017 for follow up, where he was reassured that the results were normal.
98Mr Mansouri had five attendances on Dr Aljumba in January 2017 following his fall from a ladder, which resulted in a CT scan and x-rays. It seems that this was a fairly significant event given the number of medical attendances and his complaints of pain over nearly three weeks. His characterisation of this episode as arising out of an abundance of caution by his general practitioner and which resulted in nothing more than minor muscle pain resolved by a simple tablet appears to significantly downplay the incident.
99On 3 January 2018 Mr Mansouri attended general practitioner Dr Leena Majeed complaining of right shoulder pain and elbow pain after driving to Queensland. Mr Mansouri recalled being in pain after driving to Queensland but did not recall being diagnosed with a rotator cuff tear or bursitis. He did not recall being referred for a steroid injection into the rotator cuff and denied having had such an injection.
100On 4 January 2018, Mr Mansouri was notified of the results of his ultrasound which showed right sided subacromial bursitis. Dr Majeed provided a medical certificate for 3 weeks “rest” for right subacromial bursitis which needed a steroid injection.
101On 5 January 2018 the pain was noted to have improved with painkiller.
102On 17 January 2018 Dr Majeed spoke with “Michele” from Centrelink noting that Mr Mansouri’s “hernia had improved after surgery but has a new issue with subacromial bursitis”. I take it from this that Mr Mansouri was in receipt of Centrelink benefits at this time and was not working.
103On 4 October 2018 Mr Mansouri attended Dr Omar Abdulsamad for “shoulder pain”.[31] He was prescribed Mobic and referred for an X-ray. He was reviewed on 7 October 2018. Mr Mansouri could not remember these attendances.
[31] DCB 165
Evidence about past history of mental health problems
104Mr Mansouri was asked about an attendance on Dr Hamie on 18 December 2015 for a mental health assessment. Dr Hamie records:[32]
“depressed of late, with lots of anxiety which is getting worse, poor sleep and agitations.
Shaky hands and lack of understanding from others.
Poor coping mechanisms in the past, unemployed, few friends, socially isolated. Continual tiredness, sleeping problems and overeating. Loss of interest in sex, difficulty in concentrating and remembering things.
Tension and anxiety with possible agitation.
Getting angry with people around easily.
Marital problems, marked swings of mood.”
[32] DC 137
105Dr Hamie referred Mr Mansouri for a mental health plan. Mr Mansouri was asked whether he recalled attending Dr Hamie for mental health problems in December 2015. Mr Mansouri said “No I cannot. I can’t remember telling this, and also I cannot remember taking medication for this purpose”.[33] He was asked whether he had mental health problems in December 2015. Mr Mansouri said “I cannot remember”.[34] He said he was not aware of going to a doctor for mental health problems and said that “perhaps I had said to this doctor things in relation to the visa, because at the time my Medicare card was not green”.[35]
[33] T22 L5-7
[34] T22 L9
[35] T22 L18-20
106I pause here to make the following comment. On occasion, when cross examining a witness, counsel might obtain an answer that is superficially helpful to the case counsel is developing, and will then move on, even when it is possible, or sometimes clear, that the witness has not fully understood the question.
107That is not what occurred during this cross examination. Even making allowance for the fact that use of an interpreter can increase the difficulty, counsel repeatedly sought to assist the court by ensuring that Mr Mansouri understood the question or the proposition that was being put.
108On occasion it was not always clear whether his lack of recollection related to a lack of recollection as to whether he had experienced a particular thing (pain, anxiety) or whether he had communicated that to a doctor. Counsel provided ample opportunity for Mr Mansouri to clarify and, if necessary, amend his answers to reflect both his affidavit evidence and the documentary evidence. It is fair to say Mr Mansouri did not take that opportunity.
109In addition to Counsel’s commendable efforts, on occasion I also sought to ensure that Mr Mansouri fully understood what he was being asked.
110Below is one such example in relation to the attendance on Dr Hamie for a mental health assessment:[36]
“Can I just understand your evidence. Are you saying that you don't remember this attendance or are you saying you were not aware that you had an attendance for mental health on Dr Hamie?---Your Honour, I cannot remember if I went to his office for this purpose or for this matter. I can't remember.
Okay. It doesn't matter if you can't remember that you went to his office for this purpose. The question is do you remember that in December 2015 that you were, or is it correct that you were, even though you don't remember the attendance, correct that you were depressed, anxious, having sleeping problems and so on, those other things?---I did not have problems. May I explain something?
Yes?---Your Honour, I used to go to swimming pool. I used to do - - -
Sorry, I used to?---Go swimming pool. I have used to do gardening and my life was a normal life.
Yes. I understand that you say that in your affidavit. But specifically are you saying that you did not have these mental health problems as described here in 2015?---No, I didn't.”
[36] T22-23
111On 23 March 2016 Mr Mansouri attended Dr Hamie for review of his mental health plan. Dr Hamie noted that Mr Mansouri has depression and anxiety, that things had not changed much, if anything they had got worse. Mr Mansouri denied he had depression and anxiety symptoms in March 2016.
112On 30 April 2017 he attended his general practitioner in Sydney for follow up of his hypercholesterolaemia. She noted “depression”.[37] He was noted to be having problems with his visa, and to be feeling sad. He was advised to see a psychologist. Dr Aljumba noted that he agreed and was booked in to see a psychologist in a week.
[37] DCB 146
113Dr Aljumba prepared a mental health care plan. She noted that Mr Mansouri presented with anxiety and PTSD, that he had major depression and was at risk of suicide. The goal of the plan was noted to be cognitive behaviour therapy and counselling to teach the patient to deal with stress and overcome daily stress and face problems. She referred him to Dr Yasser Mohammed for an opinion regarding anxiety and PTSD.
114Mr Mansouri could not remember the attendance with Dr Aljumba or whether he had seen a psychologist. He did not accept that Dr Aljumba had accurately recorded his presentation. He denied having had anxiety or PTSD.
115On 5 May 2017 he attended Dr Mohammad for counselling.
116On 7 July 2017 Mr Mansouri again attended Dr Mohammad for counselling.
117Mr Mansouri said he did not recall ever attending for counselling.
Findings about credibility
118Mr Mansouri, in his first affidavit, said he had attended his general practitioner for back pain in 2015 and was referred for a CT scan. In his second affidavit he said he had some pain in his back after a fall from a ladder in 2017, and had a thoracic spine X-ray at that time. In that affidavit he also said that he understood that the medical records showed certain attendances and complaints which he could not recall but which he accepted recorded his symptoms at the time. However, although he swore this in his affidavit, this is not what he said in oral evidence.
119His affidavits were clearly not drafted by Mr Mansouri, and are not in his own words. However the particulars of jurat state that the affidavit was translated by Ahmad Sadiqi and Mr Mansouri gave evidence that, prior to coming to court he had had the affidavits read to him, and had also used a translator (I assume an online translator) to review them. I have no reason to doubt that Mr Mansouri understood the contents of his affidavits.
120Apart from acknowledging a back muscle pain after falling from the ladder that was resolved by a “simple tablet”, and accepting he had attended physiotherapy, Mr Mansouri denied he had any previous back pain.
121He did not accept that, although he might not remember particular presentations, it was likely that the doctors had recorded the symptoms he presented with. Instead he said the doctors had misunderstood him, despite acknowledging that he spoke with his doctors in Arabic, a language in which he is fluent.
122His assertion, despite contrary evidence, that he did not have any prior back pain, was not credible.
123The multiple opportunities he was given to clarify his answers persuade me that there was no doubt he well understood what was being asked. I infer that he also well understood that the existence of significant pre-existing back pain would negatively impact his case. This was apparent from his evidence that he was working without difficulty before, and that if he had any pre-existing back pain it would have materialised during his brief stint with Prestige Windows.
124Similarly, his denial that he ever had any mental health issues and his assertion that his practitioners must have misunderstood him, was not credible.
125One can understand that the passage of time results in the loss of memory. An attendance at a doctor for a minor medical matter is unlikely to be recalled several years later.
126I can readily accept that doctors do not always make perfect notes. Often enough something is recorded in error and then repeated throughout a medical history. For example the entry that Mr Mansouri fell from a scaffold 7-8 meters appears to be a misunderstanding of a 1 meter fall from a ladder.
127However for there to be repeated notes, from multiple doctors, recording the same or very similar information leads me to form the view that Mr Mansouri did have pre-existing mental health issues that were significant enough for his general practitioner to develop a mental health care plan, and for him to attend counselling on at least two occasions.
128Other aspects of Mr Mansouri’s evidence caused me concern. His evidence that he did not attend a doctor for his pain while still working at AgCab because he did not have time, appeared to be an attempt to both explain why he didn’t attend, and to suggest that he was working very hard, contrary to Mr Yayintas’ evidence.
129The unchallenged evidence was that Mr Mansouri worked from 7.00am to 3.30pm or 8.30am to 5.00pm and did overtime “a couple of times” for a maximum of 1.5hours. There would have been ample opportunity for Mr Mansouri to see his long term general practitioner Dr Hamie or another doctor if he had the significant pain he says.
130I do not accept that Mr Mansouri did not see a doctor because he did not have time to see a doctor. Rather, I infer that Mr Mansouri did not see a doctor because he was not having significant back pain during the course of his employment at AgCab. He has shown himself to be a person who attends his doctor for ailments such as back pain and it is likely that if he had experienced back pain he would have sought treatment from his general practitioner.
131He gave other evidence that was difficult to accept. His Workcover claim form did not mention any injury to his shoulders, an injury he later claimed was work related, although not an injury he relied on in this application. Mr Mansouri said he “definitely must have received help from someone” to complete the form, but could not remember who that person was.[38] He was not sure whether the handwriting on the form was his. He could not remember if he had filled out the form with assistance but then, when taken through the form said “I’m saying you know it’s impossible for me to fill in this form, it’s impossible”. [39] He said he was unable to read the form and that he signed the form having no idea of its contents. He said he could not remember signing the form and was “surprised” by it.[40]
[38] T38 L25-31
[39] T39 L14-15
[40] T40 L7
132It is not uncommon for workers to have WorkCover claim forms completed by others, and it is not uncommon that a plaintiff might not recall the exact circumstances in which the claim form was completed. Mr Mansouri’s evidence about the form – starting with the possibility that it was his handwriting and moving to a complete denial of any involvement in completion of the form, seemed to be an attempt to explain why the claim for his shoulders had not been included. It is improbable that someone made up the contents of the claim form without reference to Mr Mansouri’s instructions and there is no logical explanation as to why, if Mr Mansouri had told the person completing the form that he had also injured his shoulders, that injury would not have been included on the form. Therefore I infer that Mr Mansouri did not instruct the person who completed the form or assisted him to complete the form, about his shoulder injury.
133The inclusion or otherwise of shoulders on the form is of little moment in this application, given that Mr Mansouri no longer relies on his shoulder injuries. Mr Mansouri’s evidence about it, however, is not credible and is a matter I take into account when assessing his overall reliability.
134He said in evidence that he reported his pain to his friend and colleague Esa, during his employment. This was contrary to his affidavit material. He told Dr Michael Lucas, in March 2020, that he had not reported his pain to anyone at work. This was a more or less contemporaneous report and one would expect that, just a month after his termination, he would better remember if he had reported pain to anyone at the workplace, than in the witness box in 2024, particularly given the difficulties he says he has with memory.
135I formed the view that he said in Court that he had told Esa, in an attempt to bolster his case and to try counter what he anticipated the defendants would submit which was that he was “bluffing” about his injury.[41]
[41] T91
136Mr Mansouri’s failure to accept any evidence that would or could be potentially harmful to his case, or which he perceived as being potentially harmful to his case, caused me to doubt not just the reliability of his evidence, but his credibility as a witness.
137It may be that Mr Mansouri was adamant in his denial of pre-existing problems because he has a psychiatric disorder. Indeed the submission by his counsel was that his presentation in the witness box was a function of his psychiatric condition. It is also possible that his fixation on his current symptoms has caused him to form a genuine, albeit incorrect, belief that he did not have pre-existing problems (other than those resolvable by a simple tablet, or stress about his visa). I do not know.
138Unreliable witness evidence in a serious injury application can be because of any combination of: the passage of time; the multitude of doctor’s appointments attended; the presence of physical or mental health issues that affect memory; and the use of medication that impacts memory. Unreliability can also be a consequence of a witness seeking to bolster their case, or being deliberately dishonest.
139In this case I formed the impression that Mr Mansouri was trying to bolster his case with his evidence and was not frank and forthright with the court. However, whatever the reason, the fact that his evidence is unreliable causes difficulty in undertaking the task I must perform in assessing the consequence of his claimed injuries.
140Prior to the claimed injury, the medical records note severe back pain on several occasions, and mental health issues requiring a mental health care plan. Mr Mansouri denies both those conditions. Because he denies those conditions, it is difficult to assess how significant those conditions were, or might have been, prior to his injury.
141The credibility of a plaintiff is often crucial in a serious injury application, particularly one which depends on the plaintiff’s subjective reports of pain. Medical witnesses typically depend on what they have been told by a plaintiff, and this means any unreliability in the evidence of the plaintiff may infect the medical opinion provided.[42]
[42]Nikolic v Transport Accident Commission [2020] VSCA 148 [64]; Dordev v Cowan [2006] VSCA 254 [14]
142Because of my findings about Mr Mansouri’s reliability, much of the medical material is compromised.
143Mr Mansouri bears the onus of establishing that the consequences of his injury meet the test of “at least very considerable” for a physical injury, and “more than serious to the extent of being severe” for a psychiatric injury. I cannot substitute my own assessment of his likely pain, limitation and restrictions for his evidence about those things
144I am required to consider the whole of the evidence. This means I must also look at the medical evidence, taking into account that it might be compromised by his instructions, and assess whether there is any other evidence I can rely on that would enable Mr Mansouri to meet the test.
Does his work history support a proposition that he had no significant pre-existing problems?
145Where a plaintiff’s evidence is unreliable and the medical opinion is heavily dependent on the plaintiff’s subjective reports of pain, a plaintiff’s work history may provide some objective evidence. For example, fulltime heavy manual work, even in the presence of a pre-existing injury, might lend support to a submission that the pre-existing injury was not sufficiently serious to stop a worker from engaging in employment and therefore a subsequent injury causing an inability to work amounts to an aggravation that meets the test. Similarly, one might more readily accept that a plaintiff with a strong and consistent work history is unable to work because of a claimed injury, than a plaintiff who does not have such a work history.
146Mr Mansouri says he was working without difficulty before the injury and this demonstrates he had no significant pre-existing medical issues. However the only evidence I have about his work history is from him.
147Even on his own evidence, his work history is poor. Between 2014 when he apparently obtained a visa that enabled him to work, and February 2020 when he was terminated, he worked for about seven or eight months in total, across three jobs. For the periods when he did not work he received Centrelink benefits.
148There was no explanation as to why he stopped working at the restaurant after two or three months.
149He said he struggled to find work in Melbourne so he moved to Sydney. Although he was there for three years he worked, in total for only about five months. He gave no explanation of what caused his work there to end or why he worked for only such a short period. He gave no explanation for what he was doing when he was not working.
150He returned to Melbourne because, he said, he preferred living in Melbourne. The timing of his return to Melbourne and his commencement with Prestige Windows is unclear. He said he was happy at Prestige Windows but was enticed across to AgCab by Esa and this was why he worked there for only 2 weeks.
151He said he had difficulty obtaining work due to his English skills. He said he can speak and understand spoken English although he struggles to understand when things are more complex or someone speaks fast. He says he has English to get by day to day but would not have sufficient English skills to work in an office environment.[43] I am not persuaded that his English skills prevented him from looking for or obtaining work in the sorts of unskilled occupations in which he was able to obtain employment.
[43] Plaintiff’s Court Book (“PCB”) 35.
152He apparently left the three jobs he had prior to AgCab of his own volition. He does not say, for example, that he was unable to work in those occupations because of his poor English, or because of any lack of skill or training. I am therefore left with an absence of evidence about why he worked so little in the five or six years before AgCab. For at least a period of time he was unable to work because of his inguinal hernia, which was surgically repaired in October 2017. It may be that this hernia caused him a greater degree of incapacity that he has attested to, particularly as up until the hearing of this application he was still relying on bilateral hernia as an injury for which he claimed a serious injury certificate. However there is no evidence about this.
153I do not accept that his work history supports his claim that he had no pre-existing injuries that impacted his work capacity, because he has not demonstrated a capacity for work for more than a few months at a time, with lengthy interludes between employment. His work history might indicate that he was unable to work for periods because of pre-existing physical or mental health issues, it might indicate that he was unmotivated to look for work or might simply indicate he faced a difficult job market and lacked the necessary skills to obtain employment. However it does not support his submission that I can be confident that any pre-existing problems he had were not significant because he was working fulltime on a long-term basis doing manual labour.
Does the medical material support Mr Mansouri’s claim?
154Apart from those medical records detailed above, the medical record shows Mr Mansouri had a left sided inguinal hernia repair in October 2017. I note that he was referred for management of his hernia to Westmead Public Hospital on 14 June 2016, more than a year before he had surgery. It is not clear whether he was installing aluminium frames prior to or post this procedure, or whether he continued to work while waiting for surgery.
155On 14 December 2017 Mr Mansouri had a bilateral groin ultrasound for investigation of post operative pain. No abnormality was detected and there was no complication from the surgery identified.
156I have only a partial medical record in evidence, however I infer that the record from the period between 4 October 2018, the date of the last general practitioner record in evidence prior to the incident, and 25 February 2020 when Mr Mansouri underwent CT scan of his lumbar spine on referral from Dr Hamie Hassan, discloses nothing of relevance to this claim.
157Although Dr Hamie Hassan was Mr Mansouri’s treating general practitioner prior to his injury, there is no report from Dr Hassan. There is a report from his current treating general practitioner, Dr Hermiz, who started seeing Mr Mansouri only in December 2020. This means there is no evidence from a medical practitioner who saw Mr Mansouri both before and after his employment.
158The CT of his lumbar spine of 25 February 2020 showed mild broad based disc bulges at L4-5 and L5-S1 but no canal or foraminal narrowing.
159Groin ultrasound on 28 February 2020 noted bilateral herniae.
160CT scan of the cervical spine on 4 March 2020 noted no disc bulges, or exit nerve root impingement, no paraspinal lesions, or join hypertrophy.
161X-ray of the shoulders on 13 March 2020 noted no arthropathy, with joint spaces preserved and glenohumeral alignment. Ultrasound on 14 March 2020 showed subacromial and subdeltoid bursitis with impingement of the right shoulder and slight bursitis of the left shoulder.
162MRI of lumbar spine on 20 April 2020 demonstrated minimal annular disc bulges at L4/5, and L5/S1 with left L5/S1 subarticular disc annular fissure contacting the traversing left S1 nerve without neural displacement or compression.
163On 13 April 2021 Mr Mansouri had a CT guided injection of steroid and anaesthetic into the sacroiliac joints bilaterally.
164MRI on 9 May 2021 produced largely the same conclusions as the earlier MRI – minimal disc bulge at L4/5 and L5/Sq, annular tear at L4/5 and L5/S1 but no disc protrusion and no neural compression.
165Cervical spine CT scan of 17 August 2022 showed moderate right exit foraminal narrowing.
166MRI of 15 December 2022 showed age-appropriate minimal degenerative change and no significant neural compression.
167Lumbar MRI of 9 April 2024 demonstrated the same results. MRI of the right shoulder showed possible subdeltoid bursitis with no cuff tear and a possible “tiny” posterior labral tear.
168Ultrasound of the left groin of 18 April 2024, after hernia repair showed no hernia but, at the site of Mr Mansouri’s reported pain, an area of fluid in the inguinal canal.
169MRI of 22 August 2024 of the groin and upper thigh noted no hernia or collection of fluid and normal signal intensity of thigh muscles. A 16mm os acetabulare was noted, possibly associated with femoroacetabular impingement.
170The parties have provided numerous treating and expert medical reports. I have read the material and summarise it only to the extent necessary to explain my findings.
Dr Sam Hermiz
171Dr Hermiz, general practitioner, diagnosed Mr Mansouri with neck pain, back pain and sciatica, bilateral shoulder pain and anxiety and depression. He said he suffers from multiple medical and psychological problems and that his work-related injuries have greatly affected him.[44]
[44] PCB 47
172Dr Hermiz described the plaintiff’s history as including lower back pain in 2015, a fall from a ladder in 2017 and left inguinal hernia in 2017. He said following ‘heavy lifting’ at work he felt neck and lower back pain radiating to his legs and bilateral shoulder pain.[45] A CT scan in 2022 showed multi-level degenerative changes and narrowing of the vertebral canal. An MRI in 2023 showed no nerve root compression.
[45] PCB 45
173An MRI in 2024 showed mild L4/5 and L5/S1 degenerative disc disease and L5/S1 annular tear. Dr Hermiz noted that Mr Mansouri continued to suffer neck, back and bilateral shoulder pain in May 2024 despite imaging and ‘further investigation including nerve condition studies’ being ‘unremarkable’.[46]
[46] PCB 46
174He said Mr Mansouri had suffered from anxiety, stress and depression since 2020 and that his psychological condition deteriorated in early 2023. He considered Mr Mansouri’s prognosis for work was ‘poor’.[47]
[47] PCB 48
175Importantly, Dr Hermiz has only been treating Mr Mansouri since 17 December 2020. He opines that Mr Mansouri’s employment ‘was a major contributing factor to his injuries/condition’ but is basing this opinion on the history provided by Mr Mansouri which, as noted above, is inaccurate. This significantly diminishes the weight I give to Dr Hermiz’ opinion.
Dr Ash Chehata
176Dr Ash Chehata, Orthopaedic Surgeon, saw Mr Mansouri in March 2020. He said he complained of ‘ongoing pain after working for almost four months’. He said, ‘it appears’ he developed bilaterial shoulder pain and has ‘classic impingement and bursitis on both the right and left sides although the right is far worse than the left.’[48]
[48] PCB 49
177He said Mr Mansouri has chronic neck pain, low back symptoms but that imaging has failed to confirm ‘any major pathology’.[49]
[49] PCB 49
178It appears that the primary concern during Mr Mansouri’s consultation with Dr Chehata was his shoulder pain and consequently Mr Chehata’s opinion is of little assistance in determining the consequences for Mr Mansouri of his spinal pain.
Dr Devan Gya
179Dr Devan Gya also saw Mr Mansouri in March 2020 and said he had pain in both groins confirmed to have been inguinal hernia.[50] Mr Mansouri does not rely on herniae in this application, but I note that his herniae caused him significant pain, including the requirement to use a walking stick until they were repaired.
[50] PCB 50
180His left groin area continues to cause significant pain, the consequences of which must be disentangled from his spine pain.
Dr Adam Boyt
181Dr Adam Boyt, General and Bariatric Surgeon, saw Mr Mansouri on numerous occasions throughout June 2021-October 2024. In June 2021 he mentions Mr Mansouri’s history of hernia repair and says this is causing ‘increasing pain and decreasing ability to work.’[51] In July 2021 he says Mr Mansouri had ‘a workplace related injury with recurrence of left inguinal hernia and a new right inguinal hernia’ he says Mr Mansouri will need ‘two months recovery before he can return to full duties’.[52]
[51] PCB 51
[52] PCB 53
182He saw Mr Mansouri in August 2021 noting that ‘clear cut data’ shows a recurrence plus a new hernia and it should be ‘pretty clear cut’ that it is a ‘work-related injury’.[53] Following surgery in 2024 Dr Boyt said that results showed ‘no femoral inguinal hernia’. In October 2024 scans showed a possibility of some scar tissue which he estimates is the cause of ‘his pain’ but that he would like to clear Mr Mansouri from an ‘orthopaedic point of view for causes of ‘the hip pain first’.[54]
[53] PCB 55
[54] PCB 63
183As Mr Mansouri does not rely on his hernaie in this application, Mr Boyt’s opinion is relevant only on the question of disentanglement of consequences.
Dr Hazem Akil
184Dr Akil, Neurosurgeon, reviewed Mr Mansouri in April 2020 and said there was a ‘minor only disc bilge at the L4/5’ and did not recommend surgery. He referred Mr Mansouri to a pain specialist.
185Dr Akil’s opinion confirms that the radiology does not provide an explanation for Mr Mansouri’s reported extreme levels of pain.
Dr Ali K Mehr
186Dr Ali Mehr, rehabilitation specialist, saw Mr Mansouri in October 2023 and May 2024. He said Mr Mansouri gave history of a work injury in 2020, chronic lower back pain and ongoing right shoulder pain. He noted Mr Mansouri complained of shoulder pain that was constant and radiates down the arm. He said Mr Mansouri tried a pain management program but could not complete it because of poor English.
187He said Mr Mansouri’s sitting tolerance is 10 minutes, walking tolerance is 10 minutes, driving tolerance 20 minutes.[55]
[55] PCB 66
188On examination he said Mr Mansouri’s range of motion of the lumbosacral spine was 50 degrees flexion and 0 degrees extension, he was ‘tender in the midline’ and ‘paraspinal bilaterally more significant on the left side’. He said range of motion in hip joints was normal and neurologic exam of lower and upper limbs did not show major issues. He referred Mr Mansouri for MRI and physiotherapy.[56]
[56] PCB 66
189In 2024 he diagnosed Mr Mansouri with chronic lumbosacral spine pain due to aggravation of the lumbar spondylosis as a result of work. He said it was a combination of facetogenic and discogenic pain. He said he has chronic cervical and right shoulder pain due to right shoulder bursitis and tendonitis.[57]
[57] PCB 69
190He said Mr Mansouri’s condition was caused by the type of work he was doing, ‘heavy laborious work, repetitive pulling, pushing, bending and lifting’ because he never had ‘any significant pain or functional impact prior to that injury’. He suggested Mr Mansouri continue to see his GP, a chronic pain specialist, do physical treatment and continue psychiatric management.[58]
[58] PCB 69-70
191I note that Mr Mehr’s opinion in relation to the relationship between Mr Mansouri’s work and his injuries is based on Mr Mansour’s instructions and history. As Mr Mansouri’s history of no significant pain or functional impairment prior to the injury is not accurate, Dr Mehr’s opinion that his condition was caused by his work is significantly impugned.
Dr Gavin Weeks
192Dr Gavin Weeks, pain specialist, assessed Mr Mansouri in May 2020. He said Mr Mansouri had a work injury second to repetitive heavy lifting and had started to develop severe and chronic constant lower back pain and shoulder pain.
193On examination Mr Mansouri had ‘no obvious neurological deficits of his lower limbs’ the vast majority of tenderness was of his ‘lumbar spine over bilateral sacroiliac joints’.[59]
[59] PCB 72
194In July 2020 he prescribed Mr Mansouri with Norflex 100mg twice per day because the baclofen was not offering any significant benefit.[60] In March 2021 he added gabapentil 100mg to Mr Mansouri’s regime, noting that he continues on Dothep and tramadol.[61] In April 2021 he said Mr Mansouri noticed benefits from the gabapentin.
[60] PCB 74
[61] PCB 76
195In May 2021 he said Mr Mansouri was wearing a back brace and ‘does have a lot with his back pain but unfortunately his aggravating condition of groin hernia that he has’.[62] I assume that this means the brace helps with his back pain but that Mr Mansouri has an aggravating condition of groin hernia.
[62] PCB 78
196He saw Mr Mansouri in October 2022 and said his condition is ‘somewhat disimproved’. He said he describes ongoing neck pain, ongoing lower back pain radiating down both lower limbs into his feet. He said the neck pain seems to be bothering him more and he presented to the appointment in a neck brace. He said that Mr Mansouri was ‘very much struggling with pain’.[63]
[63] PCB 79
197In January 2023 Dr Weeks reviewed more investigatory scans which did not show any evidence of nerve root compression. He said ‘based on the widespread nature of his pain, I think his participation in a pain management program is a reasonable place to start’.[64]
[64] PCB 80
198Dr Weekes does not appear to be aware of any issues with pain when he expresses his view that Mr Mansouri developed pain following a work injury.
Mr Justin Moar
199Mr Justin Moar, physiotherapist, reviewed Mr Mansouri regarding the pain management program at Precision Ascend. He did not recommend a group based pain program and recommended that Mr Mansouri continue with ‘the support of [his] local psychologist and physiotherapist’.[65]
[65] PCB 82
200The assessment report and treatment plan from Precision Ascend noted Mr Mansouri’s diagnosis as ‘aggravation of spondylosis and inguinal hernia has become widespread pain syndrome – pain in all joints, back and neck’.[66]
[66] PCB 84
201His injury background was ‘Work injury 14/1/2020 caravan factory — injured his back and neck from repetitive heavy lifting, repeatedly taking the bins out and walking up and down stairs. Neck pain radiating to right arm and fingers. Lower back pain radiating to both legs. Latest MRI showed no substantial disc bulge and no nerve root compression. Previously had CSI to lower back and was ineffective.’[67]
[67] PCB 84
202‘His Activity Pattern is characterised as ‘avoidance’. He reports that he is concerned about dislocating his shoulders, even at night when he sleeps on it.[68]
[68] PCB 84
203His mental health was noted as ‘depressed, anxious, angry, and stressed, ruminates about past negative events, feels life is meaningless and feels hopeless’. He reported that ‘sometimes he may not leave his house for days’.[69]
[69] PCB 84
Dr Samir Ibrahim
204Dr Ibrahim, psychiatrist, reviewed Mr Mansouri in July 2020. He diagnosed Mr Mansouri with severe adjustment disorder, depression with melancholic features and anxiety symptoms.[70]
[70] PCB 88
205He reviewed Mr Mansouri again in April 2024. He said Mr Mansouri ‘described the pain as constant, and interfering with his mobility, activities of daily living, his personal hygiene, and shattered his chances to continue to work in is field, and he then lost his dreams to prosper and be a good provider for him, and his family in the future.’[71]
[71] PCB 92
206Dr Ibrahim said it is very hard to ascertain the role of the psychological condition alone, as it stems from the physical injury and its impact on his mobility, daily living and future employment prospects. He said ‘we cannot separate his sadness about his injuries and the complications, and the symptoms of Depression alone as they all stem from the realisation of his gloomy future’.[72] He said this will ‘reduce his abilities to be motivated and energetic to look for other jobs, and to be focused to learn other skills for new careers’.
[72] PCB 93, 94
207Importantly Dr Ibrahim considered the psychiatric injury to be a response to the physical injury and its impacts, rather than the psychiatric injury being a cause of the pain and symptoms.
208Dr Ibrahim does not appear to be aware of any pre-existing psychiatric history.
Dr Farzin Shaykhi
209Dr Shaykhi, psychologist, treated Mr Mansouri on multiple occasions. He prepared a report dated 7 May 2024. He said Mr Mansouri suffers from depressive mood and work-related stress/anxiety and that pain is ‘another source of stress as it has impacted his ability to function on a daily basis’.[73] He said that since his work injury he has been suffering from severe pain which has significantly impacted his mental health, leading to depression and anxiety.[74]
[73] PCB 97
[74] PCB 99
210Dr Shaykhi makes a number of assertions for which there is no explanation in his report and no external supportive evidence. For example he says “Historically he has been characterised as a diligent and resilient individual, satisfied with his life and focused on advancing his career. He demonstrated perseverance by attending English language classes regularly and taking initiative in tasks and work commitments.”[75] I assume that Dr Shaykhi has obtained these instructions from Mr Mansouri. They are not supported by the evidence about Mr Mansouri’s work history, nor his history in relation to attending English language classes.
[75] PCB 101
211Dr Shaykhi notes “In the past he followed an optimistic path, driven by his passion and determination to overcome life’s obstacles and achieve success”.[76] Again, this is not supported by the evidence.
[76] PCB 102
212Dr Shaykhi’s conclusion, therefore, that “the injury has significantly disrupted his overall well-being” and “has had a considerable impact on his life trajectory, disrupting his ability to manage challenges effectively and achieve personal fulfilment”, and that his psychological injury has been caused by the workplace injury must be treated with caution.[77] I give little weight to Dr Shaykhi’s opinion.
[77] PCB 102
213However I note that, like Dr Ibrahim, Dr Shayki considers the psychiatric condition to be caused by the physical pain and limitations.
Mr Mohammed Awad
214Mr Mohammed Awad, Neurosurgeon and Spinal surgeon, prepared a medicolegal report in March 2024. The history of complaint noted that Mr Mansouri ‘was advised to stop working and started to get treated conservatively’.[78]
[78] PCB 105
215He said Mr Mansouri described his symptoms as constant neck pain at 8/10, significant right shoulder and arm pain, constant lower back pain at 9/10, left leg pain, occasional right left pain and permanent numbness in the abdominal region following his inguinal hernia surgery.[79]
[79] PCB 106
216He diagnosed cervical and lumbar spondylosis with intermittent radiculopathy symptoms. He said that based on Mr Mansouri’s lower back injury alone, and neck injury alone, he did not have fitness for pre-injury employment or any alternative employment duties.[80]
[80] PCB 108
217He said that Mr Mansouri’s workplace environment as a labourer has ‘most likely been a significant contributing factor to aggravation of both his cervical and lumbar spondylosis’. He recommended ongoing conservative treatment with pain management and did not believe surgery would offer benefits.[81] He said ‘I believe that he has suffered a significant injury by way of his employment at the time of presentation that has now placed the patient in a more permanent state of pain and disability.’[82]
[81] PCB 107-109
[82] PCB 110
218I note, however, that this opinion is based on Mr Awad’s understanding of the history that Mr Mansouri developed significant symptoms and was advised to stop working. This does not accurately reflect that Mr Mansouri was working fulltime until his termination because of performance related injuries and had not sought any medical treatment during his employment. He complained of injuries and sought medical treatment only after his termination.
Dr Joseph Slesenger
219Dr Slesenger reviewed Mr Mansouri in February 2024. He noted ‘there was some difficulty establishing the timing of the onset, the progress and chronology of his symptoms (in particular it was difficult to understand which were Mr Mansouri’s primary symptoms.)’[83] Dr Slesenger noted that the bilateral shoulder difficulties do not appear to be referenced in the immediate post-injury general practitioner records.
[83] PCB 113
220Dr Slesenger noted the past history of lower back pain and said he was satisfied that Mr Mansouri suffered a lumbar spine and cervical spine soft tissue injury as a result of pre-injury job demands.[84]
[84] PCB 125
221Dr Slesenger considered there was a ‘significant functional element to his presentation’ noting that non-myotomal weakness in the upper and lower limbs, and sensory changes in lower limbs appear non-dermatomal.[85]
[85] PCB 125
222He diagnosed a soft tissue injury to the lumbar and cervical spine with chronic pain with radiating features but no confirmed evidence of radiculopathy.[86]
[86] PCB 126
223He did not consider Mr Mansouri was fit for his pre-injury duties but considered he could return to work with restrictions, based on his physical limitations.[87]
[87] PCB 126
224He considered Mr Mansouri had opportunities for improvement with treatment and as a result his impairment could not be regarded as permanent.[88]
[88] PCB 127
225Dr Slesenger has had the advantage of reviewing Mr Mansouri’s prior medical history and is satisfied that there was a pre-existing injury. He diagnosed a soft tissue injury but did not consider that Mr Mansouri’s current presentation could be regarded as permanent.
226I give some additional weight to Dr Slesenger’s opinion as he has the benefit of the full medical history.
Dr Justin Lewis
227Dr Lewis, psychiatrist reviewed Mr Mansouri for medicolegal purposes in September 2024. He said that Mr Mansouri described the ‘onset of back and groin pain’ in January 2020 but that he ‘continued to work despite persistent pain’ and did not disclose the ‘full extent of physical injuries to his employer, fearing his position would be terminated.’[89] He said he described ‘the onset of lowered mood soon after the injury, consequent to chronic pain, physical restrictions and poor response to treatment.’[90]
[89] PCB 145
[90] PCB 145
228He said his daily activities centre around ‘his prevailing pain symptoms.’[91] Dr Lewis said that Mr Mansouri was ‘flat and despondent in demeanour’ and his affect was ‘restricted to the depressed range.’[92]
[91] PCB 146
[92] PCB 147
229Dr Lewis diagnosed chronic Major Depressive Disorder with depressive symptoms. He said there was a ‘clear temporal relationship between the workplace physical injury and the subsequent development of a Chronic Adjustment Disorder with depressive symptoms.’[93]
[93] PCB 149
230He believes Mr Mansouri is ‘completely incapacitated for both pre-injury and all alternative duties from a purely psychiatric perspective’.[94] He believes total work incapacity will continue for the foreseeable future due to the ‘chronic nature of the underlying medical condition.’[95]
[94] PCB 150
[95] PCB 154
231I note that Dr Lewis does not appear to be aware of any pre-existing psychiatric condition. He considers the psychiatric injury to have a clear temporal relationship with the physical injury and that the mood disorder arose in response to his chronic pain and physical restrictions.
Dr Michael Lucas
232Dr Michael Lucas, occupational physician, reviewed Mr Mansouri in March 2020. He said Mr Mansouri was ‘uncertain as to when his symptoms of concern first arose’ but said that when he returned after the Christmas break, he realised he was ‘not the same person, indicating he was experiencing pain in his lower back and neck regions and had groin symptom concerns’.[96]
[96] DCB 27
233He said Mr Mansouri reported lower back discomfort 10/10, bilateral leg symptoms 8/10, groin discomfort 10/10 and neck and bilateral shoulder discomfort concerns.[97]
[97] DCB 27
234On examination he noted ‘no significant range of motion restriction’ of the head and neck, ‘extension and rotation moderately restricted’ in the spine and ‘no objective findings of considered significance’ of the lower back.[98] He diagnosed ‘mechanical spine discomfort’ and bilateral inguinal herniae.[99]
[98] DCB 29
[99] DCB 30
235He opined that Mr Mansouri’s concerns were ‘not significantly employment or work-injury related’ based on the history provided and current review.[100] He believed Mr Mansouri could return to work.
[100] DCB 30-31
236I note that Dr Lucas saw Mr Mansouri very shortly after the termination of his employment and his complaint of pain. I give particular weight to Dr Lucas’ contemporaneous findings in relation to range of motion. The fact that Mr Mansouri complained of 10/10 lower back pain in March 2020 and says he has continued to experience that level of pain up to and including the trial of this matter, apparently without relief, cause me to doubt the reliability of that evidence.
Associate Professor Anthony Buzzard
237Associate Professor Buzzard, general surgeon, saw Mr Mansouri in July 2021. He has recorded Mr Mansouri’s instructions that he first experienced pain ‘in my back and two hernias’ in January 2019. He then sought medical attention and was prescribed medication. He said he was ‘at home’ ‘and then I was suffering from stress’.[101]
[101] DCB 37
238During the course of the consultation Mr Mansouri subsequently said that the pain first came on in January 2020. When Associate Professor Buzzard tried to ascertain the timing of the onset of Mr Mansouri’s shoulder he noted ‘the reply given was “it’s all because of my work – for the third time”.[102]
[102] DCB 38
239Mr Mansouri said he used a walking stick. When asked about numbness in the legs the reply was ‘you’re asking me the same repeated question – I told you – 15 months’.[103]
[103] DCB 39
240I note here that these responses were similar to some of the responses Mr Mansouri gave to questions during cross examination, for example ‘I have been sitting on a chair for nearly two hours and now you are asking me if I am in pain or not?’[104] Mr Mansouri’s presentation to Associate Professor Buzzard appears to be in keeping with his presentation in Court.
[104] T47 L28-30
241Professor Buzzard said he had ‘considerable difficulty’ communicating with Mr Manosuri despite having a professional interpreter. He said it was ‘extremely unlikely that Mr Mansouri would have developed problems with his low back, both groins and right shoulder, all at the same time’ and the fact that he is claiming so is ‘in its own right suggestive of functional overlay’.[105]
[105] DCB 41
242He noted that imaging findings of the lower lumbar spine showed degenerative disease within normal limits for Mr Mansouri’s age but it was reasonable to accept he may have suffered aggravation of this during the course of work.[106]
[106] DCB 41
243He said that Mr Mansouri has a ‘gross degree of functional overlay with little physical abnormality to support this’. He recommended a psychiatric assessment. He thought Mr Mansouri had ‘evidence of abnormal illness behaviour’ based on his comments about all problems occurring at the same time and his complaints about lower limb numbness and groin pain.[107]
[107] DCB 44
Mr Michael Dooley
244Mr Michael Dooley examined Mr Mansouri in July 2021. Mr Dooley recorded Mr Mansouri’s history that ‘the older workers got him to do a lot of physical work’ and that in January 2020 he noted the onset of lower back pain and herniae.[108] He said the doctor told him the low back pain will not get any better and he is unable to do ‘any physical therapy because of the severity of his pain’.[109]
[108] DCB 49
[109] DCB 49-50
245Mr Dooley diagnosed Mr Mansouri with a soft tissue injury to the lumbar spine, with some aggravation of underlying degenerative disc change. He said the constancy and intensity of ongoing pain and described disability cannot be explained on the basis of organic injury alone.
246He believed that Mr Manosuri has had a ‘psychological reaction to his situation and that this reaction dominated his clinical presentation’.[110] He said further treatment would only ‘reinforce the psychological component of his presentation’.[111] He said there is no need for ongoing conservative treatment or operative intervention and that Mr Mansouri should return to work for his overall well-being.[112]
[110] DCB 51
[111] DCB 51
[112] DCB 51
247On subsequent review in 2023, Mr Dooley said that Mr Mansouri had developed chronic pain syndrome, that his response to injury has been a ‘complex physical and psychological interaction’ which has caused ongoing ‘disproportionate pain and depression’. He believed this behaviour pattern has ‘become entrenched’.[113]
[113] DCB 58
Dr Sam Soliman
248Dr Sam Soliman, Occupational Consultant, examined Mr Mansouri in December 2023. He said Mr Mansouri could not remember how he injured himself, ‘all he remembers is that he felt pain in both shoulders, back and groin’.[114] He said Mr Mansouri could not remember what conditions he had or the last time he worked and provided no detailed information.
[114] DCB 63
249Mr Mansouri said a doctor had told him ‘if he doesn’t stop working, the pain will worsen and destroy his body’ but he couldn’t remember who told him that.[115] I note here that Mr Mansouri ceased work before consulting any doctor and has made no attempt to return to work. It is unlikely that he has been told that working with destroy his body, particularly in light of the radiological findings which do not demonstrate any significant pathology. This would be very unusual advice for a doctor to give a patient with Mr Mansouri’s radiological presentation.
[115] DCB 63
250Dr Soliman observed Mr Mansouri as ‘completely disengaged alternating between sitting and slouching’ he made no eye contact during the whole assessment. He said he had previously worked with aluminium doors ‘but cannot remember for how long and if he has done anything else’.[116]
[116] DCB 66
251Mr Mansouri said he was ‘sleeping all the time’ but declined to answer questions about his social life or personal care.[117]
[117] DCB 67
252Dr Soliman had ‘no clinical or radiological explanation for Mr Mansouri’s expressed disabling widespread pain and presentation’. He considered that all of Mr Mansouri’s conditions, even if exacerbated during three months employment, should have settled a long time ago.[118]
[118] DCB 72
253He said Mr Mansouri had ‘significant functional overly and abnormal illness behaviour’ and believed he ‘has more capacity than he is stating’.[119]
[119] DCB 72
Associate Professor Peter Doherty
254Dr Peter Doherty, consultant psychiatrist, examined Mr Mansouri in August 2024. Mr Mansouri had said that before work with AgCab his mental health was ‘perfect’. He said ‘I had an injury initially, and it gradually got worse’ he said he told his friend and the employer.[120]
[120] DCB 81
255He said he cannot go back to any work, when asked why he said ‘I can tell you different ways’. He said he ‘would like to kill himself unless the condition became better’.[121]
[121] DCB 81
256Associate Professor Doherty said there was an extensive pre-existing psychiatric history of depression and anxiety from 2015.[122] He noted lower back pain first appeared in 2015.
[122] DCB 88
257He said Mr Mansouri has an ‘adjustment disorder of mild severity. There appears to be a disproportionate response to known stressors, giving rise to reported clinically significant symptoms and distress’.[123] He did not believe there was a diagnosable pain-related psychiatric condition. He said that an adjustment disorder rather than major depressive disorder better fit the clinical picture.[124]
[123] DCB 88
[124] DCB 88
258He said Mr Mansouri reported ‘persistent pain, functional limitations, changes to lifestyle and mood’ that is disproportionate with the known physical pathology.[125] Overall he said there were issues of reliability and the presentation was not typical of Mr Mansouri’s day-to-day functioning. He considered Mr Mansouri’s presentation suggested abnormal illness behaviour.[126]
[125] DCB 88
[126] DCB 89
259Associate Professor Doherty takes a different view from the other psychiatric experts who consider Mr Mansouri has a pain-related psychiatric condition. Associate Professor Doherty instead opines that Mr Mansouri has an adjustment disorder prompted by a disproportionate response to stressors, for example losing his job.
260Associate Professor Doherty is the only expert who appears to be aware of Mr Mansouri’s pre-existing psychiatric history and therefore I give some weight to his opinion, as he has a more complete picture of Mr Mansouri and relies less on Mr Mansouri’s own, inaccurate history.
261However I am not sure that Mr Mansouri’s psychiatric condition can be described as “extensive”. It appears to me to have been more sporadic than extensive, although there are large gaps in Mr Mansouri’s work and personal history since his arrival in Australia that make it difficult to know how he was functioning.
Is there other evidence to support Mr Mansouri’s claim?
262Mr Mansouri also relies on an affidavit of his housemate and friend Rostam Shakhi who has known Mr Mansouri for a number of years. Mr Shakhi says that prior to the injury, from his observation Mr Mansouri lived a normal life, they were equal housemates who shared household chores, and Mr Mansouri did not take any medication. Since the injury Mr Mansouri has become more withdrawn, does not undertake household tasks and has become socially isolated. He takes medication which causes him drowsiness and complains of pain on a daily basis. He is often up at night. Mr Shakhi was not cross examined. However, where a plaintiff’s evidence is not credible, the fact that friends or family members provide supportive evidence may not be of great assistance.
263The defendant points to the fact that Mr Mansouri was able to continue to work in his employment until his termination, without variation of his hours or duties, and that his duties involved heavy and repetitive lifting of 25-30 kilograms.
264The defendant says this supports its proposition that Mr Mansouri did not sustain any aggravation or any substantial aggravation of his underlying degenerative condition of his lumbar spine at work.
265Mr Mansouri said that his symptoms worsened after he was terminated. He said “when I was working I think my body was coping with pain better, but when I was grounded at home, I reckon the pain got more intense. And that’s when I presented to a doctor and they told me you’ve got to do ultrasounds and scans to see what’s happening to you”.[127]
[127] T38 L6-10
266The defendant submits that this evidence suggests that Mr Mansouri was not in significant pain at work and that his physical injuries are not a significant cause of his pain. The defendant submits that his presentation, if it is genuine, is influenced by a multitude of claimed injuries and psychological and psychosocial overlay including abnormal illness behaviour that makes it impossible to satisfactorily disentangle the contributions made by the claimed physical and psychological impairments.
267The plaintiff submits that, although there is an organic basis for Mr Mansouri’s symptoms and that he meets the test on physical grounds, much of his presentation arises from a psychiatric reaction to his injuries. The plaintiff submits that Mr Mansouri’s evidence that his pain worsened at home, supports the proposition that there is a functional or psychiatric component to his symptoms.
Findings
268Mr Mansouri complains of widespread extremely debilitating pain, 10 out of 10 on most occasions, that prevents him from working and undertaking most activities of daily living. He is largely dependent on his housemate to assist him and to perform the household tasks including cooking and cleaning.
269He complains of a severe psychiatric response to his pain which has caused him to be depressed and anxious and socially withdrawn.
270For the purposes of this application he relies on impairment to his spine caused by the injuries to his lumbar and cervical spine, and his psychiatric impairment.
271Pursuant to the legislation, any psychiatric sequalae of a physical injury are relevant only for the purposes of assessing his psychiatric injury, and cannot be used for the purposes of assessing the consequences of his physical injury. Further, any physical symptoms that derive from a psychiatric injury can only be used for the purposes of assessing his psychiatric injury. Given that Mr Mansouri’s primary physical symptom is pain, and his primary psychiatric symptom is depression and anxiety provoked by his experience of pain and the changes wrought to his life as a result, he must disentangle the pain consequences for the purposes of his physical and psychiatric impairments. To the extent that he submits that any of the pain he experiences derives from a psychiatric basis, rather than an organic basis, he must disentangle the pain that is said to have an organic basis from that which is said to derive primarily from a psychiatric basis.
272The many radiological investigations Mr Mansouri has had since the injury show consistent findings of minor disc bulges at L4/5 and L5/S1 with no narrowing or neural compression. Therefore there is evidence of an organic basis for pain.
273However CT scan on 19 December 2015, four years prior to the injury, showed similar findings of minor diffuse annular bulge at L4-5 and L5/S1 that did not impinge on neural tissue and with no signs of narrowing.
274The cervical spine imaging was unremarkable both before and after the employment with AgCab. There is nothing in the radiology that supports Mr Mansouri’s complaints of pain as a result of the work.
275Dr Slesenger and Mr Dooley both diagnose a soft tissue injury. This diagnosis, however, is based on Mr Mansouri’s complaints of pain and clinical presentation, not on the basis of independently verifiable radiology.
276Because of my findings in relation to Mr Mansouri’s credibility, the reliability of these opinions is significantly diminished.
277The radiology shows a degenerative condition, largely unchanged since 2015. While this is likely to be productive of some pain, I am not satisfied that it explains the very significant degree of pain claimed.
278So while there is an organic basis for his claimed spinal injuries, the organic basis does not adequately explain the very extreme levels of pain he describes.
279Nor does the evidence support a conclusion that the work caused or contributed to an aggravation of the underlying spinal condition. I note that:
(a) He sought no medical treatment until after his termination;
(b) He did not report his pain to anyone until after his termination;
(c) He was able to continue to perform normal hours and duties including lifting 25-30kg; and
(d) His pain got worse when he ceased doing these activities.
280This does not support a finding that the work caused or contributed to a significant aggravation of his underlying condition, although it might have caused some aggravation or, as opined by Dr Slesenger and Mr Dooley, a soft tissue injury.
281Because of Mr Mansouri’s evidence that he had no prior back pain, which I do not accept, I cannot assess how significant that back pain was and to what degree it caused him impairment. His poor work history tends to support a finding that the prior back pain was at least reasonably significant.
282As has often been said, where a plaintiff’s primary consequence is a subjective report of pain, the reliability of the plaintiff’s evidence is extremely important.
283It is not for the court to determine for itself what the pre and post injury degree of pain were likely to be, in order to determine whether the test is satisfied. The court must determine the consequences based on the evidence before it.
284I am not satisfied that there is any other evidence that rectifies the defects in the plaintiff’s case:
(a) The medical material is either not supportive or compromised by the plaintiff’s unreliable history;
(b) The radiology does not assist;
(c) Mr Mansouri’s work history does not assist; and
(d) Mr Shakhi’s evidence is compromised by Mr Mansouri’s subjective reports of pain.
285I am left in the position of being unable to properly assess, as I must, the consequences for Mr Mansouri of his back injury. I am also unable to properly disentangle the consequences of his back pain from the consequences of his shoulder and bilateral herniae injuries. The medical material demonstrates objective evidence for the existence of these injuries, both of which also pre-date the employment, and his own affidavit material and evidence in the witness box establishes that these injuries continue to cause him significant pain and restriction.
286Accordingly I cannot be satisfied that Mr Mansouri meets the test and his application in relation to his physical impairment is dismissed.
287This then raises the question of whether Mr Mansouri has a psychiatric injury that meets the relevant test.
288Counsel for the plaintiff submitted that Mr Mansouri’s presentation in the witness box speaks of a severe mental or behavioural disturbance more than a physical or organic issue. This submission was based on an acknowledgement that pain as described by Mr Mansouri could not be explained by the pathology. Counsel submits that there were initial physical injuries and Mr Mansouri has had a psychiatric response to those injuries which, regardless of whether the physical injury persists, meets the test of severe.
289Where there is the potential for physical and psychological components to a plaintiff’s presentation, then the task of analysing the consequences must be done in accordance with the two-step approach articulated in Meadows v Lichmore.[128]
[128] [2013] VSCA 201 at paragraph [21] and [22]
290The physical injury must be identified, and then the physical symptoms caused by the physical injury must be disentangled from the symptoms caused by the psychiatric injury.
291Mr Mansouri points to his deteriorating mental health due to pain, his irritability, feelings of despair and hopelessness, his struggles with energy levels and motivation, his poor self-esteem and self-confidence, his feelings of vulnerability and feeling easily overwhelmed. He is low and anxious, feels like he is losing his identity and those feelings impact on his day to day life.
292Mr Mansouri says I can be satisfied that, regardless of whether there is a persistent ongoing physical injury causing him pain, he has consequences of a major depressive disorder that was prompted by his experience of pain, and those consequences meet the test.
293However, for similar reasons to those articulated in relation to his physical injury, I am not able to make the necessary assessment of Mr Mansouri’s mental state to satisfy me that he meets the test.
294I do not know what his pre-existing mental health condition was. There is some evidence to support a submission that it was not particularly serious:
(a) there is no evidence of ongoing psychological treatment;
(b) he and was not prescribed medication for his mental health; and
(c) his housemate Rostam Shakhi says that before his injury Mr Mansouri had a normal life and they were equal housemates.
295However there is a lack of evidence about what he was doing in the period 2014 to November 2019, aside from brief periods of work that causes me to doubt that his life was the “happy”, problem free life he attempted to portray.[129]The fact that Mr Mansouri denied ever having any mental health issues means I do not know how significant those mental health issues were. I am unable to disentangle his current mental health from his pre-existing mental health.
[129] T23, T54, T55
296I am also unable to be satisfied, on the evidence, that his current mental health is caused by the employment, either because of an abnormal illness response or functional overlay to pain produced by an underlying organic condition.
297I cannot dismiss the possibility that his mental health condition is in response to stressors such as losing his job. I give some additional weight to the opinion of Associate Professor Doherty in this regard as he had the benefit of Mr Mansouri’s prior medical history in forming his opinion. Importantly, his treating psychiatrist and psychologist both consider Mr Mansouri’s psychiatric condition is primarily a response to severe physical pain rather than a functional overlay.
298In summary, I found Mr Mansouri to be such an unreliable witness that I cannot accept his evidence about either the physical or psychiatric consequences of his injury.
299Other available evidence was insufficient to overcome the very real reservations I had about Mr Mansouri’s reliability and credibility and therefore I am unable to make any findings as to the true consequences of his injury
300As a result Mr Mansouri has not discharged his onus of establishing that he has psychiatric consequences that meet the test.
301Accordingly his application is dismissed.
302I will hear from the parties on the question of costs.
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