Meli v VWA
[2024] VCC 643
•14 May 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-23-03439
| Martin Meli | Plaintiff |
| v | |
| Victorian WorkCover Authority | Defendant |
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JUDGE: | HIS HONOUR JUDGE GINNANE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 February 2024 | |
DATE OF JUDGMENT: | 14 May 2024 | |
CASE MAY BE CITED AS: | Meli v VWA | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 643 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious Injury Application – lumbar spine – loss of earnings psychological condition – pain and suffering – loss of earnings
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:Advanced Wire & Cable Pty Ltd and VWA v Abdulle [2009] VSCA 170; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Hunter v Transport Accident Commission & Avalanche [2005] VSCA 1; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Stijepic v One Force Group Australia Pty Ltd [2009] VSCA 181; Tatiara Wheat Co Pty Ltd v Kelso [2010] VSCA 12, TTB SMS Pty Ltd v Reading [2020] VSCA 203.
Judgment: Application granted
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Valiotis | Arnold Thomas & Becker |
| For the Defendant | Ms GJ Cooper | Hall and Wilcox |
HIS HONOUR:
Introduction
1The plaintiff seeks the grant of a serious injury certificate relying on an impairment to his spine under paragraph (a) and the development of a mental disorder under paragraph (c) of the definition of “serious injury”. Additionally, the plaintiff alleges that he has suffered a loss of earning capacity.
2Mr Valiotis of counsel appeared on behalf of the plaintiff. Ms Cooper of counsel appeared on behalf of the defendant. Both counsel made very helpful submissions and cleared the decks of a number of matters that were not required to be addressed in the ultimate determination of the application.
3The particulars of injury filed in support of the application were multifaceted and included:
• Internal derangement of the right knee;
• Proximal patella tendinosis and partial thickness tear extending into the adjacent hoffa’s fat pad;
• 5mm area of grade 2 chondropathy overlying the central patella;
• Full thickness depression cartilage defect over the posterior aspect of the lateral tibial plateau;
• Aggravation, exacerbation and/or acceleration of degenerative changes in the lumbar spine;
• Broad-based posterior annular l4/5 disc bulge;
• Referred symptoms down the right leg;
• Scapholunate injury to the right wrist;
• Consequential psychological injury including adjustment disorder with depressed mood.[1]
[1] Plaintiff’s Particulars of Injury filed 13 April 2023 (emphasis omitted).
4However, when Mr Valiotis opened the plaintiff’s case he restricted the application to an impairment to the function of the spine, and separately a severe mental disorder. Mr Valiotis contended that the plaintiff’s claim for loss of earnings could be supported on the evidence under either head of injury.
5The application stems from a single incident that occurred in October 2020, but against the backdrop of a pre-existing spinal condition and a pre-existing right knee condition from which the plaintiff had suffered. There is no prior psychological background to speak of.
Relevant Legal Principles – Serious Injury
6The Court must not give leave to a plaintiff unless it is satisfied, on the balance of probabilities, that the “injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in section 325(1) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”).
7Paragraphs (a) and (c) of the definition of “serious injury” contained in s 325(1) of the Act read:
“Serious injury” means –
(a) permanent serious impairment or loss of a body function; or
…
(c) permanent severe mental or permanent severe behavioural disturbance or disorder…
8To establish serious injury, the plaintiff must prove, on the balance of probabilities, that:
(a) “the injury” suffered by him arose out of or due to the nature of his employment with the employer on or after 1 July 2014;[2]
(b) “the injury” and resulting impairment must be “permanent” – that is, permanent in the sense that it is “likely to last for the foreseeable future;”[3]
(c) the “consequences” of the impairment in relation to “pain and suffering” must be “serious” – that is, the impairment or loss of body function “when judged by comparison with other cases in the range of possible impairments … may be fairly described as being more than significant or marked, and as being at least very considerable.”[4]
[2]Section 5(1)(a) of the Act; see also Barwon Spinners Pty Ltd & OrsvPodolak [2005] VSCA 33 (“Barwon”).
[3] Barwon [2005] VSCA 33, [33].
[4] Section 325(2)(c) of the Act.
9The requirement to satisfy these elements is sometimes referred to as the “narrative test.”
10In determining the “consequences” of the injury, the Court is required to consider the consequences to this particular plaintiff, when viewed objectively, arising from the injury.
11In determining the application, the Court:
(a) must not take into account psychological or psychiatric consequences of “the injury” for the purposes of paragraph (a) of the definition of “serious injury” – these can only be taken into account for the purposes of paragraph (c) of the definition of “serious injury;”[5]
(b) must assess whether “the injury” is a “serious injury” as at the time the application is heard;[6]
(c) must give reasons that disclose the pathway of reasoning in dealing with the evidence and issues raised by the application.[7]
[5] Section 325(2)(h) of the Act.
[6] Section 325(2)(j) of the Act.
[7] See generally HuntervTransport Accident Commission & Avalanche [2005] VSCA 1, [23]-[26].
12The question of whether an injury satisfies the narrative test is largely a question of impression or value judgement.[8]
[8]See Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592, 628 (Dodds-Streeton JA); see also Sabo v George Weston Foods [2009] VSCA 242, [67].
13In TTB SMS Pty Ltd v Reading,[9] Tate and T Forrest JJA had occasion to emphasise the essential aspects to which consideration is to be given on a serious injury application in a pain and suffering case, and these are:
[9] [2020] VSCA 203.
(a) serious injury means permanent serious impairment or loss of a body function;[10]
(b) an impairment shall not be held to be serious unless the pain and suffering consequence is, when judged by comparison with other cases in the range of possible impairments or losses of a body function, fairly described as being more than significant or marked, and as being at least very considerable;[11]
(c) in assessing the seriousness of the claimed impairment consequences, a Court is required to consider both the effects of the impairment and those aspects of the affected body function which remain unaffected.[12]
[10] Section 325 of the Act.
[11]Section 325 of the Act. This formulation picked up the language in Humphries, which concerned similar provisions in the Transport Accident Act 1986.
[12]Dwyerv Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 (‘Dwyer’), [27] per Ashley JA; Stijepic v One Force Group Australia Pty Ltd [2009] VSCA 181, [44] per Ashley JA and Beach AJA; Tatiara Wheat Co Pty Ltd v Kelso [2010] VSCA 12, [77] per Ross AJA, quoting Dwyer [2008] VSCA 260, [27].
14When a plaintiff asserts he has suffered a serious injury by reference to a loss of earning capacity, the additional threshold he or she must establish is that at the date of the decision:
(a) he or she has sustained a loss of earning capacity of 40 per cent or more; and
(b) he or she will, after the date of the decision, continue permanently to have a loss of earning capacity which produces a financial loss of 40 per cent or more.
The Plaintiff’s Evidence
15The plaintiff relied on the following evidence:
(a) Two affidavits of the plaintiff sworn 8 February 2023 and 16 January 2024;[13]
[13]Exhibit P1, PCB 5-13, 16-20.
(b) MRI of the thoracic and lumbar spine dated 21 December 2020;[14]
[14]Exhibit P2, PCB 23.
(c) MRI of the right knee dated 27 January 2022;[15]
[15]Exhibit P3, PCB 25.
(d) Four reports of Dr Cesar Tan dated 20 June 2021, 16 November 2021, 8 March 2023, and 15 August 2023;[16]
[16]Exhibit P4, PCB 29-38.
(a) Report of Dr Phillip Chiem dated 12 April 2023;[17]
[17]Exhibit P5, PCB 59-63.
(b) Report of Dr Arthur Kokkinias dated 22 February 2023;[18]
[18]Exhibit P6, PCB 64-66.
(c) Report of Ms Lisa Costa (undated);[19]
[19]Exhibit P7, PCB 67-68.
(d) Report of Dr Hazem Akil dated 10 November 2023;[20]
(e) Report of Dr James Chan dated 21 November 2023;[21] and
(f) Report of Dr Nicholas Ingram dated 22 November 2023.[22]
[20]Exhibit P8, PCB 78-82.
[21]Exhibit P9, PCB 83-92.
[22]Exhibit P10, PCB 93-98.
The Defendant’s Evidence
16The defendant relied on the following evidence:
(a) Report of Mr John O’Brien dated 17 October 2023;[23]
[23]Exhibit D1, PCB 69-77.
(b) CoWork Vocational Assessment and Labour Market Analysis Report dated 27 November 2023;[24]
[24]Exhibit D2, Defendant’s Amended Court Book (‘DCB’), DCB 53-128.
(c) Nabenet Job Seeking Review dated 11 April 2022;[25]
(d) Email from Nabenet dated 2 March 2022;[26]
(e) Three reports of Dr Clayton Thomas dated 6 February 2024, 13 October 2023, and 8 December 2022;[27]
(f) Two reports of Dr Joseph Slesenger dated 5 February 2024 and 13 October 2023;[28]
(g) Report by Dr Timothy Entwisle dated 2 February 2023;[29]
(h) Progress notes of Sunshine Medical Centre;[30]
(i) Progress notes of Mr Peter Aghatanious;[31]
(j) Progress notes of Mr Iftekher Mahmud;[32]
(k) Surveillance footage dated 21 April 2023;[33] and
(l) Clinical Records of Kieser Physiotherapy.[34]
[25]Exhibit D3, DCB 140-145.
[26]Exhibit D4, DCB 146.
[27]Exhibit D5, DCB 162-175.
[28]Exhibit D6, DCB 176-204.
[29]Exhibit D7, DCB 205-210.
[30]Exhibit D8, DCB 277-285.
[31]Exhibit D9, DCB 286-303.
[32]Exhibit D10, DCB 304-306.
[33]Exhibit D11.
[34]Exhibit D12, DCB 339-342.
17I have read and had regard to the lay and medical evidence relied on by the parties together with the affidavit evidence and the cross-examination of the plaintiff, as well as the final addresses of counsel. I have only referred to so much of the exhibits tendered by the parties, as is necessary to explain my reasons.
The Plaintiff’s Examination in Chief
18The plaintiff adopted his affidavit evidence as true and correct, save for the addition of Voltaren, which he said he commenced taking a few weeks prior to the hearing, but otherwise his medications were as he had deposed. He also confirmed that he continues to see his psychiatrist once a month.[35]
[35] T 7, L 2-7.
The Plaintiff’s Affidavits
19The plaintiff deposed that he is 43 years of age and is married with two daughters. His wife is employed full-time. He completed schooling to Year 11 and then commenced but did not complete an apprenticeship as a cabinetmaker. Over a decade, he worked both directly for the defendant and as a subcontractor. He also opened a delicatessen business before starting his own clothing brand.
20The plaintiff commenced working for the defendant on 3 July 2017 as an operations assistant in its cleaning business. He was employed full-time from Monday to Friday, working 9 am to 6 pm, with a weekly wage of $1,673 gross.
21The plaintiff was required to visit different sites where the defendant provided cleaning services. His responsibilities included ensuring that the cleaning was being carried out to the required standard, and inspecting the cleaning supplies stored in cleaners' rooms on site.
The Plaintiff’s Relevant Pre-Accident Health
22The plaintiff experienced a series of pre-accident conditions:
(a) In January 2014, he suffered injury to his right knee as a result of an indoor soccer injury. His general practitioner (“GP”), Dr Tan organised an ultrasound of his right knee that revealed minor calcification of the quadriceps tendon insertion.[36]
(b) In addition to his indoor soccer injury, the plaintiff also began experiencing back pain and right knee pain, and in around June 2014, he commenced attending on an osteopath, Mr Aghatanious, for these conditions.
[36] Exhibit P1, PCB 6.
23In his affidavit, the plaintiff was keen to highlight that neither his back or knee kept him out of work or from undertaking his other day-to-day activities, and he said he dealt with the pain that these two conditions caused, by attending on his osteopath and by taking painkillers from time to time.[37]
[37] Exhibit P1, PCB 6.
24On 5 May 2020, the plaintiff saw Dr Tan for back pain and a CT scan was organised. The CT scan of 16 May 2020 identified minor broad-based disc bulges at L3/for and L4/5, but no neural compression.[38]
[38] Exhibit P1, PCB 6.
The Injury
25The plaintiff deposed that on 5 October 2020, he suffered injury when he attended at Overnewton College in Keilor. While in a cleaner’s room, the plaintiff said he slipped when moving shelving that was not attached to the wall. He said he grabbed the shelving, but a metal leg collapsed and it commenced to fall. The plaintiff said he attempted to push it back up and slipped, and thereby suffered injury.[39]
[39] Exhibit P1, PCB 7-8.
26The same day the plaintiff reported the incident to the site supervisor. He also saw Dr Tan.
27On 8 October 2020, the plaintiff lodged a claim for compensation. He deposed that he has been in receipt of weekly payment since.
28The plaintiff’s employment was formally terminated on 22 October 2021.[40]
[40] Exhibit P1, PCB 9.
Treatments
29The plaintiff deposed that on 6 October 2020, he had an x-ray of his thoracolumbar spine performed which revealed upper and mid thoracic scoliosis. He commenced seeing a physiotherapist Mr Mahmud on 14 October 2020, whom he continued to see on a regular basis until about July 2022.[41]
[41] Ibid.
30On 22 October 2020, the plaintiff had a CT scan of his back performed that revealed a broad based posterior annular L4/5 disc bulge and degenerative left sacroiliitis.[42]
[42] Ibid.
31The plaintiff had an MRI of his thoracic and lumbar spine on 21 December 2020.[43] The MRI revealed no significant pathology.
[43]Exhibit P1, PCB 9; Exhibit P2, PCB 23.
32The plaintiff said that on 22 December 2020 he had an MRI of his right knee and right wrist. The right wrist revealed bone marrow oedema consistent with an impact injury. He said his right knee revealed proximal patella tendinosis and a partial thickness tear and a full thickness chondral defect over the posterior aspect of the tibial plateau, in addition to bone oedema of the internal aspect of the patella with swelling around the intra-patella fat pad.[44]
[44] Exhibit P1, PCB 9, Exhibit P3, PCB 25.
33The plaintiff deposed that because of ongoing pain in his back, he was referred to neurosurgeon Mr Timms on 27 January 2021, who recommended ongoing conservative treatment including physiotherapy, hydrotherapy and massage.[45]
[45] Ibid.
34On 5 March 2021, the plaintiff saw Mr Barnes, orthopaedic surgeon, because of ongoing pain in his right knee who recommended non-operative treatment in the form of plasma rich platelet injections.[46]
[46] Ibid.
35The plaintiff deposed that because of symptoms of anxiety and depression stemming from his physical injury, he commenced seeing Ms Costa, psychologist, on 26 April 2021, whom he continues to consult once a fortnight.[47]
[47] Ibid.
36The plaintiff said on 26 July 2021, he commenced seeing Mr Chiem, a chiropractor, whom he continues to attend on a weekly basis.[48]
[48] Exhibit P1, PCB 9, 17.
37The plaintiff deposed that he was reviewed by Mr Barnes on 3 August 2021, who told him that he might require a surgical debridement of the proximal patella tendon in the future should non-operative treatment fail.[49]
[49] Exhibit P1, PCB 10.
38The plaintiff said he had three plasma rich platelet injections into his right knee on 6 September 2021, 29 September 2021 and 19 October 2021. He said by the time these were administered he had developed a limp due to the pain in his right knee, and although the injections helped, he continued to experience ongoing pain.[50]
[50] Exhibit P1, PCB 10.
39The plaintiff deposed that in October 2021, he commenced seeing psychiatrist Dr Kokkinias whom he continues to see about once a month.[51]
[51]Exhibit P1, PCB 10, 44.
40On 24 January 2022, an MRI of the plaintiff’s right knee showed an improved tendon tear and bone marrow oedema but persistent tendinosis and fluid near the tear. Also noted was a small unchanged chondropathy and stable cartilage defect, with no new lesions.[52]
[52] Exhibit P1, PCB 10, Exhibit P3, PCB 25.
41The plaintiff said he saw Dr Slon, a pain specialist, on referral on 7 March 2022. Subsequently he was assessed at the Dorset Rehabilitation Centre on 26 July 2022 for participation in a pain management program. He deposed that he commenced attending the pain management program on 19 October 2022, and continued to do so until 23 February 2023 attending generally, one or two days a week.[53] During this time he also saw a psychologist, an occupational therapist and a physiotherapist. While the pain management program did not alleviate the plaintiff’s pain, he deposed that it provided him with strategies to perform certain tasks, such as cooking, and taught him stretching exercises to do when experiencing pain.
[53] Exhibit P1, PCB 10, 16.
42The plaintiff said that he does not believe he is fit or suited for any work. He said he has participated in Nabenet’s attempts to look for work for him, but to no avail.[54]
[54] Exhibit P1, PCB 10.
Current Symptoms
43The following account of the plaintiff’s symptoms resulting from his injury is distilled from his two affidavits.[55]
[55] Exhibit 1, PCB 5-13, 16-20.
44The plaintiff says that he still experiences significant pain and restrictions in both his back and right knee. Regarding his back, he stated that the pain mainly travels down his right leg, although occasionally it affects his left leg. He noted a tingling and numbness sensation in his right leg. Additionally, he mentioned ongoing pain in his right knee, accompanied by cramping and clicking sensations.
45In his second affidavit sworn on 16 January 2024, the plaintiff deposed that he is pretty much pain-free in his right wrist, however, if he rubs against his right lower forearm, he experiences a tingling sensation down into his right hand. He continues to suffer from a loss of strength on his right side comparable with his left.
46The plaintiff deposed that he takes Endone 10mg for pain management, as needed, and which can be as frequent as three times a week when pain is severe. He said the medication induces drowsiness. He mentioned a past trial of Lyrica, which he stopped because of adverse effects. He takes Zoloft 200mg daily and Mirtazapine 30mg daily for depression. For sleep, he occasionally uses temazepam and relies on melatonin most nights. He sees his psychiatrist, Dr Kokkinias, once a month, and his psychologist, Ms Costa, once a fortnight.
Effects on Activities of Daily Living and Enjoyment of Life
47The plaintiff says that pain significantly impacts his ability to sleep, and he often experiences poor sleep due to pain. He noted that he frequently wakes up with pain in his lower back and spasms in his right leg.
48Shortly after the injury and his incapacity, the plaintiff said he had put on weight but has since lost what he gained.
49The plaintiff said he is restricted in driving for extended periods, and that driving for more than 30 minutes exacerbates symptoms in his back, right sciatica, and right knee. Additionally, he referred to limitations in prolonged standing, sitting, and walking, and also mentioned difficulty navigating stairs.
50The plaintiff stated that his injury has affected his ability to interact and play with his daughters. He used to go on 5 km fun runs with them, but now struggles to lift them up at bedtime. Because of the amount of time he is at home he manages school drop-offs, collections and supervises them at home.
51In his first affidavit the plaintiff deposed that he had always been an outdoors person. He used to enjoy fishing on friends' boats, but has found it painful the few times he went out after his injury. He used to go camping annually with his best friend along the Murray River, but he was unable to go the year after his injury. When he next went, it fell to his friend to attend to all the setting up, which made him feel guilty. He plans to hire a caravan for future camping trips.
52In his second affidavit the plaintiff deposed that he has not been able to go on a “proper holiday” since the injury, and whilst he has considered travelling to somewhere like Bali, he has not done so.[56]
[56] Exhibit P1, PCB 18.
53Other activities which the plaintiff used to enjoy prior to the accident, but that he now no longer partakes in, include:
(a) golf (a handful of times a year);
(b) indoor soccer (he used to play in a team of dads);
(c) long-walks;
(d) swimming; and
(e) cultural activities such as making homemade tomato sauce, sausages, and salami. Previously, he would go to his friend's or parent's house for these activities. However, due to the bending, lifting, and standing involved, he finds it too difficult and is limited to observing.
54In addition to his recreational activities, the plaintiff said that there have been other consequences and these are:
(a) he is restricted in gardening, and the defendant's insurer pays for lawn mowing at his house. His house requires considerable landscaping work, including irrigation and soil and grass maintenance. Contractors will be required to complete this work as the plaintiff can no longer do it due to his injuries.
(b) before the injury he used to enjoy cooking, however he is no longer able to cook to the extent he previously did because prolonged standing exacerbates his symptoms. Additionally using his right hand is difficult because of pain in his right wrist;
(c) the refuse bins are now generally taken out by his wife; and
(d) he is unable to wash his car and is required to take it to an automatic car wash.
55In his second affidavit, the plaintiff deposed that the symptoms in his back and right knee have remained the same. He continues to experience low back pain that mainly radiates down his right leg, along with ongoing pain and restriction in his right knee. His right wrist is mostly pain-free, but he still suffers from loss of strength on his right side.
56The plaintiff deposed that his sleep is still interrupted by back pain and leg spasms, and he relies on Melatonin most nights. Depending on his sleep quality, he sometimes wakes with pain in his right knee.
57He says he is unable to resume work. His weekly compensation payments ceased on 27 May 2023. He continues to be certified unfit for work by Dr Tan.
58Since swearing his first affidavit, he has not undergone any retraining. Work options identified by Nabenet such as cleaning supervisor, sales representative, or customer service officer, would require prolonged standing and lifting, which he does not believe he could manage.
59His days are mostly spent at home, attending to school drop-offs and pick-ups, watching television, and taking naps. He occasionally does some housework, including wiping benches, cleaning dishes, and cooking. He experiences frequent mood swings and describes feeling as if he is in a black hole when depressed.
60He deposed he has fewer social interactions, and can only drive short distances, no more than 30 minutes.
The Plaintiff’s Medical Evidence
Dr Cesar Tan, GP
61Dr Tan provided four reports at the plaintiff’s solicitors request.[57] In his latest report dated 15 August 2023, he diagnosed the plaintiff with “a musculoskeletal injury of the upper and lower back. Annular disc prolapsed LS spine.”[58] An MRI scan of the right knee, ordered by Dr Tan, revealed “signs of proximal patellar tendinosis with associated partial thickness tearing of the tendon [and] a small full thickness articular cartilage defect over the posterior aspect of the lateral tibial plateau.”[59] He noted that the plaintiff had also been diagnosed with major depression as a result of the injury.[60]
[57]Exhibit P4, PCB 29-38.
[58] Exhibit P4, PCB 31.
[59] Exhibit P4, PCB 32.
[60] Exhibit P4, PCB 35.
62Examination by Dr Tan revealed tenderness on the thoracic spine, lumbar spine, right wrist and right knee. There were reduced movements of the lumbar spine, right knee, and right wrist referrable to pain.[61]
[61] Exhibit P4, PCB 36.
63Dr Tan believed that the nature and extent of the plaintiff’s injuries, including to the thoracic spine, lumbar spine, right wrist, right knee, and consequential psychiatric injuries, were related to the accident and that the plaintiff's employment had played a significant role in these injuries.[62]
[62] Exhibit P4, PCB 36-37.
64Dr Tan offered the following opinion on the plaintiff's current work capacity for his pre-injury employment as an Operations Assistant, considering each injury separately:
Injury of the upper and lower back: No current capacity for his pre injury duties.
Right Knee Injury: No current capacity for his pre - injury duties
Major Depression: No current capacity for his pre - injury duties.
Right wrist injury: Resolved.[63]
[63] Exhibit P4, PCB 37.
65Dr Tan expressed the following opinions regarding the plaintiff’s current capacity for suitable alternative employment on a consistent and reliable full-time basis, considering each injury separately:
Injury of the upper and lower back: No Current capacity for suitable alternative employment.
Right Knee Injury: No current capacity for suitable alternative employment.
Major Depression: No current capacity for suitable alternative employment.
Right wrist injury: Resolved.[64]
[64] Ibid.
66He commented that the injuries had adversely affected and restricted the plaintiff in his employment, social, domestic, and recreational activities.
Dr Phillip Chiem, Chiropractor
67Dr Chiem first saw the plaintiff on 26 July 2021. In his report dated 12 April 2023, he recounted that the plaintiff had been referred to him for assessment and management of his WorkCover injuries, including his low back, wrist, and knee. The plaintiff complained of:
Constant Ache in right wrist, loss of grip strength.
Right Knee Patella Tendinosis, chronic ache and sharp pain when overworked/used. Sharp Pain at the distal point of patella tendon, has had a dose of PRP injection on 18/10/21 into right knee with mild relief.
Constant deep dull ache in lower back, with bouts of sharp pain when overworked or with sudden movement, can intermittently refer down right leg when glutes and lower back are tender and sore.[65]
[65] Exhibit P5, PCB 60.
68Dr Chiem related that an MRI of the plaintiff’s right wrist and right knee on 22 December 2020 respectively, revealed a “signal change in the subchondral bone of the lunate which may be secondary to an impaction injury with bone marrow oedema…. [in the knee] signs of proximal patellar tendinosis with associated partial thickness of the tendon. There is a small full thickness articular Cartlidge defect over the posterior aspect of the lateral tibial plateau.”[66]
[66] Exhibit P5, PCB 61.
69Dr Chiem also recorded that an ultrasound of the right shoulder on 14 May 2021 showed “moderate Supraspinatus Tendinosis with mild subacromial bursitis and bursal impingement.”[67]
[67] Ibid.
70A CT scan of the lumbar spine on 22 October 2020 indicated “broad-based posterior annular disc bulge L4/5 without nerve root compression. Moderate degenerative left sacroiliitis”.[68]
[68] Ibid.
71Dr Chiem diagnosed the plaintiff with an “annular lumbar spine disc prolapse, right patella tendinopathy and wrist strain.”[69] He considered that the plaintiff’s employment was strongly related to his injury and found that he was “totally unfit and does not have any capacity to perform any work at this point in time.”[70] Due to the chronic nature of the plaintiff’s condition and there being no significant change to the plaintiff’s pain, Dr Chiem considered it was “looking less likely” that the plaintiff would make a significant recovery and be able to return to work.[71]
[69] Ibid.
[70] Exhibit P5, PCB 62.
[71] Exhibit P5, PCB 61-62.
Dr Arthur Kokkinias, Psychiatrist
72Dr Kokkinias provided a report dated 22 February 2023[72] to the defendant’s insurer. He diagnosed a major depressive disorder as a result of the plaintiff’s employment injury, subsequent ongoing pain, loss of function, loss of role and associated grief. Dr Kokkinias believed that the plaintiff was unable to work given both his physical and psychological complications.[73]
[72]Exhibit P6, PCB 64-66.
[73] Exhibit P6, PCB 66.
Ms Lisa Costa, Psychologist
73Ms Costa diagnosed the plaintiff with somatic symptom disorder with comorbidity, severe major depressive disorder with anxious distress. She attributed this to the severity of the plaintiff’s pain, persistent physical symptoms, and excessive psychological distress. She found his depressive disorder was “somewhat attributed” to these factors, as well as his reduced capability to perform daily tasks, leading to low self-esteem and a lack of self-worth.[74]
[74] Exhibit P7, PCB 67.
Dr Hazem Akil, Neurosurgeon
74Dr Akil provided a medical report following review of the plaintiff on 10 November 2023.[75] Dr Akil thought that the plaintiff’s injury was compatible with an aggravation of pre-existing lumbar spondylosis, and was satisfied that the accident had aggravated the spondylosis in his spine.[76] He believed that the injury was a significant contributing factor to the plaintiff’s current condition.
[75]Exhibit P8, PCB 78-82.
[76] Exhibit P8, PCB 80.
75In assessing work capacity, Dr Akil believed that the plaintiff should consider a desk-based job, as he did not think that he could return to his pre-injury duties as an operations assistant, due to the bending and lifting required in that role.[77] As to suitable employment, he thought that in theory, the plaintiff might be able to undertake suitable employment that is desk-based where he can alternate between sitting and standing for up to 15 hours a week, however, this should take into consideration his other injuries and also his psychological well-being as well as his place of residence, education and his work experience.
[77] Exhibit P8, PCB 80-81.
Dr James Chan, Occupational Physician
76Dr Chan reported on 21 November 2023 in the capacity as an independent examiner and confirmed a diagnosis of:
· Aggravation of underlying degenerative changes in the thoracic and lumbosacral spine from asymptomatic to symptomatic.
· Soft tissue injury to right knee resulting in aggravation of proximal patellar tendinopathy and chondral injury to the tibial plateau.
· Development of secondary chronic pain in the lower back radiating down the legals (left < right), and also right knee.
· Development of secondary psychological symptoms which would be best assessed and diagnosed by a specialist in this area, such as a psychiatrist.
· Soft tissue injury to the right wrist.[78]
[78] Exhibit P9, PCB 83-92.
77Dr Chan recommended further investigations, including interventional procedures into the lumbar spine and orthopaedic surgical review for the plaintiff’s knee. He also considered that there was a need for further psychiatric evaluation. Dr Chan did not believe that the plaintiff could return to his pre-injury role as an operations assistant based on his spine injury alone, and he did not have the capacity for suitable alternative duties after “taking all of his injuries together.” [79] He then went on to state that based on the plaintiff’s right knee impairment alone, he would recommend that any return to work would necessitate a 5kg lift restriction. Regarding his right wrist impairment, he considered that the plaintiff would be able to return to work, avoiding lifting, pushing and pulling for more than a few kilos.[80]
[79] Exhibit P9, PCB 89-91.
[80] Exhibit P9, PCB 91.
Dr Nicholas Ingram, Psychiatrist
78Dr Ingram provided a psychiatric report dated 22 November 2023.[81] In his opinion, the plaintiff is suffering from a major depressive disorder, as a secondary consequence of his chronic pain and inability to work or engage in other activities. He noted that if the plaintiff’s organic pain was related to his work accident, then so was his depression.[82]
[81]Exhibit P10, PCB 93-98.
[82] Exhibit P10, PCB 97.
79Dr Ingram found that the plaintiff had developed depression due to his pain, work limitations, and loss of independence, feeling like a failure.[83]
[83]Exhibit P10, PCB 96-97.
80He considered that the plaintiff was unable to work due to depression and the impact it had on his motivation, concentration, and energy levels.[84]
[84] Exhibit P10, PCB 97.
81Dr Ingram thought that the plaintiff’s prognosis was dependent upon his pain, but that there might be some improvement with changes to his antidepressants. He was unable to say if the plaintiff’s depression was stable.[85]
[85] Ibid.
The Defendant’s Medical Evidence
Dr John O’Brien, Neurosurgeon
82Dr O’Brien is a consultant neurosurgeon who conducted an independent medical examination of the plaintiff on 17 October 2023.[86] He considered the plaintiff’s prognosis was poor and that his “now well-established multiple areas of chronic pain” will remain ongoing.[87] Dr O’Brien added that as a consequence, he would consider it is extremely unlikely the plaintiff will return to any form of gainful employment. He related that the plaintiff remained limited in his general, social, domestic and recreational activities, and this will certainly be ongoing.
[86]Exhibit D1, DCB 69-77.
[87] Exhibit D1, DCB 73.
Dr Clayton Thomas, Rehabilitation Specialist
83Dr Thomas is a specialist in rehabilitation and pain medicine, who provided three reports to the defendant dated 6 February 2024, 13 October 2023 and 8 December 2022.[88] He thought the plaintiff had non-specific lower back pain and that with some physical restrictions, and limitations on bending and lifting he could work full time in suitable employment. In his 6 February 2023 report, he said that he thought the plaintiff could perform each of the jobs recommended in the CoWork Vocational Assessment, on a full-time basis from a physical perspective so long as compliant with his earlier identified restrictions.[89]
[88] Exhibit D5, DCB 162-175.
[89]Exhibit D5, DCB 163.
Dr Joseph Slesenger, Occupational Physician
84Dr Slesenger, provided two reports to the defendant’s solicitors dated 13 October 2023 and 5 February 2024.[90] Dr Slesenger reported:
Thoracolumbar spine:
His thoracolumbar spinal symptoms had persisted at a severe level. The pain was radiating throughout the right leg and the right leg pain was also at a severe level. He described the pain as sharp and aggravated by activity, particularly walking, standing and sitting for more than 30 minutes.
Right knee:
His right knee symptoms had persisted with pain over the anterior and inferior aspects of the knee. There was restricted range of movements in the knee together with weakness around the knee. The knee occasionally gave way.
He advised that he was able to walk and stand for 30 minutes. He was able to climb up and down stairs. He was able to walk over uneven ground. He was unable to squat. He was unable to run.
Sleep disturbance:
His sleep was disturbed by both his lower back and his knee pain.
[90] Exhibit D6, DCB 176-204.
Psychological Impairment
Mr Meli advised that his mental health had deteriorated since the accident. He had developed depression and anxiety and he had been seen by both a psychiatrist and a psychologist and was prescribed medication.[91]
[91] Exhibit D6, DCB 178.
85Dr Slesenger said the plaintiff described receiving the following treatment:
1. GP: he was under the care of his GP.
2. Psychologist: he was seeing a psychologist on an alternate weekly basis.
3. Psychiatrist: he was seeing a psychiatrist on a monthly basis.
4. Medications: he was taking:
·Zoloft 200 mg.
·mirtazapine 30 mg.
·melatonin.
·Endone 2-3 time a week.
5. Physiotherapist: he had been seen by a physiotherapist in the past, but was no longer attending.
6. Chiropractor: he was attending the chiropractor once weekly, funded by his insurers at the time of the evaluation.
7. Exercise program: he had been provided with a stretching program and engages once a day.
8. Hydrotherapy: he was attending a self-managed pool program, but was no longer attending at the time of the evaluation.
9. Dorset Rehabilitation Centre: the timing of the pain management program was difficult to assess He appeared to have ceased around late-2022. He was no longer attending.
10. Pain specialist: he was no longer seeing a pain specialist.[92]
[92] Exhibit D6, DCB 179.
86Addressing past history, the plaintiff told Dr Slesenger about:
· An episode of knee pain that was treated under the care of an osteopath.
· A right orbital skin cancer, which was removed.[93]
[93]Ibid.
87Dr Slesenger said that the plaintiff initially denied a past history of lower back pain. On review of the clinical records, however, he confirmed that he had episodic lower back pain prior to the injury, and was treated under the care of an osteopath and had also been managed under the care of a GP and undergone investigations, including CT scans. He said that his symptoms had responded to osteopathy and had resolved at the time of the accident.[94]
[94] Exhibit D6, DCB 179-180.
88In Dr Slesenger’s opinion, the plaintiff sustained a soft tissue injury in his right knee, with a patellar ligament sprain which had mostly resolved. He considered that the plaintiff’s right wrist symptoms were also attributed to a resolved soft tissue injury.
89Regarding the lumbar spine, Dr Slesenger thought that there had been an aggravation of pre-existing degenerative disease, which had also resolved. In Dr Slesenger’s opinion, the plaintiff would have been at risk of lower back pain regardless of the injury, and that his current impairment related to his pre-injury status and to degenerative disease.
90Dr Slesenger also expressed concerns about the mechanism of the accident.
91He recommended that the plaintiff could return to work with restrictions, such as no push, pull, carry, or lift over 15kg, avoiding squatting, kneeling, and walking over uneven ground. He advised against the plaintiff returning to unrestricted pre-injury duties, but believed that he could perform modified duties. He also recommended that the plaintiff undergo retraining and transition to a self-managed exercise program, considering factors such as age, residential location, past employment history, qualifications, computer skills, driving capacity, and support from a vocational assessor.
Dr Timothy Entwisle, Psychiatrist
92Dr Entwisle, provided a report to the defendant insurer dated 2 February 2023 following examination of the plaintiff.[95]
[95] Exhibit D7, DCB 205-210.
93Dr Entwisle wrote that the plaintiff presented with an adjustment disorder with depressed and anxious mood secondary to pain and incapacity.[96] He believed that from a psychiatric perspective, the plaintiff cannot return to work in preinjury duties and hours. However, he considered the plaintiff to have capacity (from a psychiatric perspective) for suitable employment on a graduated return to work basis. Dr Entwisle’s comment was expressed in relation to the suitable employment options identified in a Nabenet Report dated 14 December 2021.[97]
[96] Exhibit D7, DCB 208.
[97] Exhibit D7, DCB 209.
The Plaintiff Cross-Examined
Clinical Records of Peter Aghatanious, Osteopath
94Ms Cooper took the plaintiff through the clinical notes of Mr Aghatanious.[98] The plaintiff said he recalled attending Mr Aghatanious for right knee pain in 2014 for a period of about six months.[99] The clinical notes disclosed “no apparent cause, possibly soccer”. The plaintiff said it occurred while playing futsal.[100] He was treated with Voltaren. It was also recorded that he suffered from lower back pain, particularly when bending forward. The plaintiff agreed that he had a sore back and that it was tender to the touch and had been this way for approximately a month.[101]
[98] Exhibit D9, DCB 286-303.
[99] Transcript (“T”) 8, Line (“L”) L 1-2.
[100] Exhibit D9, DCB 288.
[101]T 8, L 19-22.
95The plaintiff again attended Dr Aghatanious in June 2014, when it was recorded that his lower back pain was much better, but he still felt pressure in the back of the knee and his upper back was very stiff.[102]
[102] Exhibit D9, DCB 289.
96The notes that Ms Cooper then took the plaintiff to were for his attendances on Dr Aghatanious in 2015 and 2016:
(a) On 6 March 2015, it was recorded that the plaintiff’s right knee had been quite good, but he had not yet played soccer.[103]
(b) On 9 October 2015, it was recorded that the plaintiff had a CT scan of his knee and it was noted that he had experienced ongoing pain for a month, had played indoor soccer and it was tender over the knee.[104]
(c) On 14 July 2016, the plaintiff’s record of attendance on Mr Aghatanious was of a complaint of lower back pain of 3 to 4 weeks duration. The note went on to record that the pain was, “gradually worsening in bed, wakes up sore, better after moving around.”[105]
[103]Exhibit D9, DCB 290.
[104]Exhibit D9, DCB 291.
[105]Exhibit D9, DCB 292.
97The plaintiff agreed with Ms Cooper that in 2016, he had experienced a sore back in the mornings but that it got better as he moved around.
98In November 2016, Mr Aghatanious recorded the plaintiff complaining about his right knee and a need to ice it. The plaintiff told Ms Cooper that this would generally be the case after playing soccer or having engaged in activities, such as “running around, things like that”,[106] by which he meant going for walks and running locally. The plaintiff said he had last done a 5km run around November 2019, after which he felt okay. He agreed that in 2016 he was experiencing difficulties with walks and running locally and needed to ice his knee.[107]
[106]T 11, L 6-7.
[107]T 11, L 19-22.
99In December 2016, Mr Aghatanious’ notes referred to the plaintiff wearing a knee brace that was of help, as he had been engaged in lots of walking for work the previous day.[108]
[108] Exhibit D9, DCB 293.
100In February 2017 Mr Aghatanious recorded, “right knee still sore, onset goalkeeper/soccer.”[109] In addition, the note included that the plaintiff had been unable to lift weights and he believed his knee was stopping him from lifting heavy things, but it depended upon the extent of pain the right knee was causing him.[110]
[109]Exhibit D9, DCB 294.
[110]T 12, L 19-20.
101The plaintiff agreed with the contents of a note from 1 June 2018, which recorded ‘nil’ for low back pain and an improvement in his right knee. It was also recorded that the plaintiff had experienced a sore back ache for a couple of months in 2018 and by June 2018 he “felt like it was going to give way”.[111]
[111]Exhibit D9, DCB 296, T 13, L 11.
102The plaintiff said he did not play soccer at all after 2019, a fact that Ms Cooper put to him was inconsistent with his first affidavit in which he said he had played in a father’s team of competitive indoor soccer.[112] The plaintiff conceded that he stopped playing soccer after the accident.[113] The plaintiff said the season ended and he did not recommence because of the work accident although he accepted this was also due to his knee causing him problems.[114]
Clinical Records Kieser Physiotherapy[115]
[112] T8, L 24-25, Exhibit P1, PCB 12.
[113]T9, L9.
[114]T9, L21-24.
[115]Exhibit D12, DCB 339-342.
103The plaintiff said that in late 2018, instead of seeing Mr Aghatanious, he went to Kieser Physiotherapy. The notes from the Kieser clinic recorded that the plaintiff continued to report difficulty getting out of bed.[116]
[116] Exhibit D12, DCB 342.
104The plaintiff agreed that his back “got a lot better” by the end of the Kieser treatment.[117]
[117] T 13, L 27-29.
105Ms Cooper identified a note dated 26 January 2019, that reported that the plaintiff had no major issues to report and that he needed to engage in regular exercises to keep his back in shape.[118] The plaintiff said that he engaged in “hands on training with the physio” during this time,[119] but was not able to return to Kieser after this, as, “it was a bit expensive. I couldn’t afford it.”[120]
[118]Exhibit D12, DCB 339.
[119] T 14, L 3-11.
[120]T14, L16-17.
GP’s Clinical Records
106Ms Cooper directed the plaintiff to an absence of clinical notes from Sunshine Medical Clinic between 2014 and 2020. The plaintiff recalled that although he was not seeing Dr Tan during this period, he was attending another practitioner in Epping.[121] However, despite seeing a physiotherapist and osteopath during this time, the plaintiff did not think he saw the doctor in Epping concerning his back.[122]
[121] T 14-15, L 31-8.
[122] T 15, L16-20.
107Ms Cooper put to the plaintiff that he saw Dr Tan due to pain in his lower back several times in the first half of 2020, commencing in January 2020. He was prescribed Endone in May 2020 for low back pain. He agreed that the treatment options that had been discussed, were lifestyle modifications that he might need to make. Dr Tan also discussed options such as paracetamol, physiotherapy, chiropractic, steroids, acupuncture and specialist referrals.
108On 9 June 2020, Dr Tan discussed with the plaintiff the results of a CT scan for which the plaintiff had been sent and that showed, L3/4, L4/5 some disc bulges but no nerve impingement.
109The plaintiff again attended Dr Tan on 12 June 2020, with the note of attendance recording the purpose of the visit as lower back injury, and Dr Tan having recommended physiotherapy, steroid injection, pain management, acupuncture, psychology, exercises, mobilisation and analgesia.
110On 15 June 2020, Dr Tan referred the plaintiff to an osteopath for four sessions and a physiotherapist for one session. Lifestyle modifications were apparently discussed with a clinician nurse.
111The plaintiff agreed he had attended Dr Tan on 5 August 2020, complaining of insomnia and he also agreed he had suffered insomnia prior to the work-related injury.[123] The plaintiff was prescribed Temazepam to assist his sleeping.
[123] Exhibit D8, DCB 282; T 17, L 11-16.
112In the middle of 2020, the plaintiff was also attending Mr Aghatanious who on 7 July 2020 recorded “LBP for about 6 months, gradual build up”.[124] The plaintiff agreed with Ms Cooper that he had “been having lower back pain for about six months by the middle of 2020.”[125]
[124]Exhibit D9, DCB 298.
[125] T 18, L 2-7.
113The plaintiff said that the pain had improved on treatment, but that prior to the accident, in September 2020 he was suffering from pain down his right leg.[126] He accepted that his knees were also playing up again pretty seriously before the accident had occurred.[127]
[126] T 18, L 24-26.
[127] T 19, L 5-7.
114When questioned by Ms Cooper about particular activities impacted by the pain in his knees, the plaintiff said he would not be able to go fishing and running but he disputed that it was impacting him at work despite the need for him to do a lot of walking and driving.[128]
[128] T 19, L 8-22.
115The plaintiff agreed with Ms Cooper that “at the time this incident occurred, you’d just recovered from a sort of episode of lower back pain…. [and] your knee pain was pretty bad”.[129]
[129] T 19, L 26-29.
116The plaintiff could not remember if he was taking any medication before the accident.
Return to Work
117Ms Cooper questioned the plaintiff about return to work efforts. The plaintiff could not explain why he did not return to work when certified fit to do so by Dr Tan on 19 October 2020 for the short period of 19 October 2020 to 23 October 2020 on a three hours a day, two days a week basis and performing light duties with no heavy lifting of more than 5kg and no repetitive bending of the lower back or use of his right wrist.[130]
[130] T 20, L 8-23.
118Ms Cooper also put to the plaintiff that he was certified by Dr Tan on 21 October 2021, for the period 25 October 2021 to 4 November 2021 as fit for light duties, three days a week, two hours a day, working from home and that was shortly before his employment was terminated.[131] Ms Cooper pointed out to the plaintiff that Dr Tan continued to certify him fit on this basis until 29 April 2022.[132] However, despite these certification periods, the plaintiff said he did not believe he had been capable of working.
[131] T 20, L 24-31.
[132] T 21, L 2-4.
119Following the termination of the plaintiff’s employment, Nabenet engaged with the plaintiff for a period of six months. The plaintiff agreed Nabenet was looking for work for him, but he said he subsequently received a phone call advising him that they were going to stop looking for work for him, as they could not find anything suitable.[133]
[133] T 21, L 5-17.
120Ms Cooper directed the plaintiff to an email from Nabenet dated 2 March 2022, providing an update on his progress in job seeking.[134] It related that the plaintiff’s progress had been slow, his capacity was limited, and that discussions had occurred with him regarding a part-time working from home position.[135]
[134]Exhibit D4, DCB 146.
[135]Ibid.
121Shortly after the injury in late 2020, the plaintiff recalled his employer saying he could do some work from home. This did not eventuate. He explained that there was a “setup issue,”[136] because he did not have a desk at home and would have needed to use the kitchen table.[137] He said he would have been required to pack up his laptop and paperwork, before dinner each night.[138] The plaintiff said that after raising these set up issues at home the employer “decided to take everything back and said, ‘We’re not going to risk Martin Meli working at home’”.[139]
[136]T 22, L 12.
[137] T 22, L 13-16.
[138] T 22, L 12-21
[139]T 22, L 28-29.
122The Nabenet email of March 2022, referred to a further working option that arose during the currency of the period of time in which Dr Tan was certifying the plaintiff with a work capacity. It included that, “they discussed some work from home, and one in particular was in the field that Mr Meli was previously employed in and the employer was offering part-time hours.”[140] The plaintiff said he had no recollection of this. It went on to advise that the plaintiff said he could not consider the work, even though it involved working from home and was part-time, because he did not think he could sustain the duties. The plaintiff told Ms Cooper that despite Dr Tan certifying him fit at that time with a capacity for some limited work, he did not think he was able to do so.[141]
[140]Exhibit D4, DCB 146.
[141] T 23, L 23-29.
123When questioned by Ms Cooper about his current restrictions, the plaintiff said that his sitting tolerance was 30-45 minutes, standing was roughly the same, and driving was 30-40 minutes.[142] The plaintiff agreed that he was able to go to the shops and to push a trolley. However, he was not able to do a full shop, and usually just picks up bits and pieces.[143]
[142] T 23-34, L 30-13.
[143] T 24, L 23-29.
124In terms of household duties, the plaintiff said that on a daily basis he drops his children off at school, which is about a 20 minute round trip, and picks them up and takes them to their extracurricular activities, whether it be sport such as karate or maths tutoring, and he cooks dinner three times a week.[144] He helps with cleaning up but sometimes he “can’t and the kids help or [his] wife helps”.[145]
[144] T 29, L 4-8
[145] T 25, L 25-27.
Surveillance
125Ms Cooper directed the plaintiff to surveillance footage of him taken on 21 April 2023. The duration of the footage played was 10 minutes and 37 seconds. The plaintiff was observed attending his children’s karate outdoor class.[146] In the footage, the plaintiff was recorded standing for a period of time and watching the class, before he proceeded to lay down on his side, propping himself up with his elbow.
[146] Exhibit D11.
126Ms Cooper suggested that the plaintiff did not exhibit any signs of discomfort in the footage.[147] The plaintiff denied this, and said he did experience discomfort and was experiencing back pain.[148] Although the plaintiff agreed that he was not visibly seen to be stretching, wincing in pain or showing overt signs of discomfort, he attributed this to the fact he was able to alter positions whilst on the ground viewing the karate class.[149] The plaintiff accepted that there were a range of positions he can move through when lying down.
[147] T 25, L13-13.
[148] T 26, L 16, T 27, L 13-14.
[149] T 27-28, L 23-10.
The CoWork Report
127Ms Cooper examined the plaintiff about some of the information pertaining to his past work experience and attributes that had been recorded in a CoWork vocational assessment report dated 27 November 2023.[150] The plaintiff agreed that he had “quite a lot of business experience”, including managerial experience, customer service experience and that he can work a computer at a basic level (email, word, excel).[151]
[150] Exhibit D2.
[151] T 30, L 22-31.
128Ms Cooper asked the plaintiff about his perceived capacity for the job of an Internal Salesperson/Customer Service Officer identified by CoWork.[152] The plaintiff said he did not believe he could perform the job because it would require “a lot of concentration, which with [his] depression and memory and concentration, [he didn’t] think [he could] do that at the moment.”[153] He also said that separately, he believed his physical restrictions notably his back, would be a problem.[154] However, he agreed that if he could sit and stand as needed, it would be of assistance and that he could possibly do a few hours a week or a few hours a day.[155] However, he disagreed that if provided with an appropriate ergonomic set up, he could work in the job full time.[156]
[152] Exhibit D2, DCB 80.
[153] T 31, L 10-25
[154] T 31, L 26-28.
[155] T 31-32, L 29-3.
[156] T 32, L 10-13.
129Ms Cooper questioned the plaintiff about the job of a Purchasing Officer identified by CoWork.[157] The plaintiff said he did not think he could perform that job either. He explained that this was due to his depression, diminished concentration and pain, and because he did not possess experience in all of the skills required for the position. However, he thought he might be able to do “maybe a few hours a day”, but he could not concentrate for a full day.[158]
[157] Exhibit D2, DCB 84
[158] T 33, L 13-14.
130The plaintiff was asked why despite believing that he could undertake at least a few hours of work a day, he had not sought out any part-time employment. He said it was because Dr Tan was currently certifying him unfit to work. He agreed with Ms Cooper’s suggestion that it was “fair to say that Dr Tan is certifying you unfit for work because you've told you don't think you can work?”.[159] The plaintiff went on to say, that he had not applied for any jobs because he does not think he is up to it.[160]
[159] T 34, L 7-9.
[160] T 34, L 27-28.
Re-Examination
131In re-examination the plaintiff was directed to the CoWork report, and particularly to the skills required for the job of a retail supervisor position. The plaintiff said that he did not have the Australian Qualifications Framework (“AQF”) Certificates referred to, and nor did he know what they were.[161]
[161] T 35, L 1-7.
132The plaintiff said that he lacks experience in preparing financial documents, reports, budgets, marketing plans or strategies and which are listed as tasks associated with the role.
Defendant Submissions
133Ms Cooper submitted that the plaintiff has capacity for identified suitable employment in two jobs identified, with him possessing an unrestricted capacity for full time employment in both.[162]
[162] T 43, L 11-13, 25, 28.
134Ms Cooper addressed the plaintiff’s back injury and submitted that the defendant disputes that the plaintiff has proved that there is a significant organic basis justifying the extent of his reported pain. Ms Cooper submitted that if the plaintiff had proved the existence of a significant organic basis justifying the extent of his reported pain, then he has not proved that it is a result of his work injury as opposed to the pre-existing condition of his back.[163]
[163] T 44, L 9-13.
135Ms Cooper submitted that despite the plaintiff claiming that the fall had caused an aggravation of pre-existing injuries, Dr Slesenger concluded that any aggravation had resolved, and that the plaintiff possessed a capacity for a graduated return to working full time hours over a period of 6-8 weeks with some limitations in pushing, carrying of lifting over 15kg, avoiding squatting and kneeling and avoiding walking on uneven ground. Ms Cooper noted that Dr Thomas had expressed a relevantly similar opinion.
136Ms Cooper submitted that the resolution of the aggravation was supported by the radiological findings, and there had been essentially no change in the scans between pre and post-injury.[164]
[164] T 46, L 19-31.
137Ms Cooper submitted that Dr Akil’s opinion of the plaintiff’s work capacity of a potential 15 hours a week based on the thoracic and lumbar spine alone, was questionable because he was not provided with the suitable employment options that had been identified by CoWork.[165]
[165] T 64, L 9-11.
138Ms Cooper referred to the report of Mr O’Brien who diagnosed non-specific back pain.
139Ms Cooper commented that Dr Slesenger and Dr Thomas had flagged that the plaintiff’s emotional state may be affecting his perceived pain level, however, she conceded that such matters were not within their expertise.
140Ms Cooper highlighted the plaintiff’s pre-existing right knee condition, noting that five days before the work injury, the plaintiff attended his osteopath Mr Aghatanious, complaining of problems with both knees. Ms Cooper submitted that although the plaintiff had not emphasised the knee injury in his application, any consequences to his knee were not serious.[166]
[166] T 52-53, L 28-22.
141Ms Cooper submitted that the plaintiff's psychological injury was not assessed as stable and is not a barrier to returning to work and that although caution was warranted in adopting Dr Ingram's opinion in its entirety, Ms Cooper noted that Dr Ingram referred to the availability of further unexplored treatment options.[167]
[167] T 55, L 12-24.
142Ms Cooper submitted that Dr Entwisle’s opinion should be preferred to Dr Ingram’s, as it was more consistent with the plaintiff’s own evidence, specifically in relation to a work capacity.[168]
[168] T 61, L 1-13, 16-18.
143When asked by me how Mr Entwisle’s diagnosis of “adjustment disorder with depressed and anxious mood”[169] although sufficient to rule the plaintiff out of his pre-injury duties, was not thought to be so as regards a capacity to return to work, Ms Cooper contended that Mr Entwisle associated the psychiatric condition with the plaintiff’s obvious distress and unhappiness at being terminated from his employment.[170]
[169] Exhibit D7, DCB 209.
[170] T 56, L 27 - T 57, L 16.
144Ms Cooper submitted that the report by Dr Chan should be disregarded, as he provided no path of reasoning for the conclusion that the plaintiff has no capacity for employment and, moreover, there is a risk that the report amounted to a ‘copy-and-paste’ as a different patient’s name was referred to in one section of the report.[171]
[171] T 62, L 9-18, Exhibit P9, PCB 87.
145On the matter of the plaintiff’s credit, Ms Cooper submitted that whilst it was not put against the plaintiff that he was dishonest, there was a clear basis that he perceived himself as more disabled than he actually is.[172]
[172] L 63, L 25-29.
Plaintiff Submissions
146Mr Valiotis submitted that the plaintiff has no capacity for employment, whether in his pre-injury job or in the employment options identified by the defendant, and that this is attributable either to his lower back, or psychological condition.[173]
[173] T 2, L 14-18.
147Mr Valiotis submitted that the plaintiff led a mostly normal life with only minor interruptions due to his pre-accident injuries. The plaintiff’s evidence had been that he was working in an unrestricted capacity with no psychological issues before the injury but had a problematic right knee. The plaintiff was able to provide for his family, which he can no longer do because of the work-related accident.[174]
[174] T 65, L 13-22.
148Mr Valiotis relied on the certification by the plaintiff’s GP, Dr Tan that he is unfit to work.
149Mr Valiotis submitted that the plaintiff’s credibility is relevant. The plaintiff described daily back pain that fluctuates, and such a presentation should reasonably be regarded as impacting his ability to attend work reliably and consistently, and which renders him unsuitable for employment. [175]
[175] T 67, L 23-25, T 68, L 15-21.
150Mr Valiotis referred to the evidence of Mr O’Brien, who referred to the plaintiff’s condition as non-specific chronic back pain, that I should treat as intended to mean as of organic origin.
151Mr Valiotis relied upon the report of Dr Akil, who, upon reviewing the plaintiff’s radiology results and after conducting a clinical examination, concluded that the plaintiff’s condition is compatible with "aggravation of a pre-existing lumbar spondylosis. The fall aggravated the spondylosis in his spine."[176]
[176] Exhibit P8, PCB 80.
152Mr Valiotis submitted that although the radiology results do not reveal the impact on soft tissue, the opinions of Dr Tan, Dr Akil, Dr Chan, and Mr O’Brien should be sufficient to persuade the Court to make a finding of total incapacity for work due to the work-related incident.[177]
[177] Ibid.
153Regarding the psychological condition, Mr Valiotis referred to the report of Dr Kokkinias and the opinion provided by Dr Ingram who found that the plaintiff’s condition is present, stable and permanent, and is secondary to his chronic pain and physical limitations.[178]
[178] T 80, L 17-1.
Reasoning
154I am required to address the injuries the plaintiff suffered under paragraph (a) and separately under paragraph (c) of the definition of serious injury. I will first deal with the plaintiff’s claim for the grant of a certificate for pain and suffering and separately, any loss of earnings, due to a permanent severe mental or permanent severe behavioural disturbance or disorder.
155There is no evidence that the plaintiff suffered from any emotional disturbance or disorder before his injury.
156Dr Kokkinias believes that the plaintiff suffers from a major depressive disorder as a result of his employment injury, subsequent ongoing pain, loss of function, loss of his role, and grief issues associated with the same, and that he is not able to currently work given both the physical and psychological complications of his injury. Dr Kokkinias was unable to state with accuracy whether this state of affairs will continue indefinitely. He was hopeful that the plaintiff’s prognosis was positive, but given the chronicity of symptoms, Dr Kokkinias thought this was unfortunately looking less likely. Dr Kokkinias did not separate out and isolate the plaintiff’s mental condition as the basis for the inability to work, but rather conflated the plaintiff’s physical and psychological conditions.
157In his November 2023 report, Dr Ingram expressed the opinion that the plaintiff was incapable of working at present not only in his pre-injury employment, but in any employment because of his depression, and the effect that this has on his motivation, concentration and energy levels, and that he regarded the incapacity for employment from a psychological perspective as likely to be indefinite, unless there was an improvement in his depression. He diagnosed a major depressive disorder. He went on to state that it was possible that there will be some improvement for the plaintiff with changes in antidepressants and, therefore, he was unable to say that the plaintiff’s depression was stable. In regard to work, Dr Ingram thought that the plaintiff’s limitations in employment were largely related to his pain, but he also expressed the opinion, that the plaintiff would be unable to work because of his depression and the effect that this has on his motivation, concentration and energy levels.
158The plaintiff deposed that he is prescribed and takes Zoloft 200mg daily and Mirtazapine 30mg daily for depression. He sees his psychiatrist, Dr Kokkinias, once a month, and his psychologist, Ms Costa, once a fortnight. That is a significant commitment.
159Dr Entwisle’s opinion was that the plaintiff presented with an adjustment disorder and anxious mood secondary to pain and incapacity, and the effects of what was at the time of his examination, the recent termination of the plaintiff’s employment.
160Dr Entwisle said he did not believe the plaintiff could return to his pre-injury duties or modified duties and hours from a psychiatric perspective, but he also said that the plaintiff does have a capacity for suitable employment on a graduated return to work.
161I have to say, that I found Dr Entwisle’s reporting unhelpful, because unfortunately it did not expose the reasoning that led him to conclude that although the plaintiff does not possess a capacity for pre-injury duties and hours, nonetheless, he does have a capacity for suitable employment on a graduated return to work basis. What Dr Entwisle had regard to in arriving at his disparate findings about the effect of the plaintiff’s mental capacity not precluding him for suitable employment but doing so for pre-injury duties and hours, and what he had in mind as constituting a graduated return to work and whether it would be to part time or full time hours, is unclear. I do not attribute the distinction in work capacity and the plaintiff’s current mental state as being due to the loss of his job and its termination and that has since resolved, such that there is a recovered capacity for suitable employment. That state of affairs is at odds with evidence of the plaintiff’s present condition, including prescribed medication and the need for ongoing professional attendances on his psychologist and psychiatrist.
162I prefer Dr Ingram’s psychiatric report that prior to his injury the plaintiff had been a fairly outgoing and open person, whereas he now finds it difficult to connect to other people at all, and has no idea about his future. I also accept Dr Ingram’s account on examination of the plaintiff, that he was depressed and was tearful on several occasions and there was a decrease in his engagement and reactivity. There was a preoccupation by him with his limitations and loss of independence and depressive themes, although Dr Ingram found the plaintiff was insightful of his situation.
163Overall, I am satisfied the plaintiff has proved the existence of a permanent severe mental or permanent severe behavioural disturbance within the meaning of paragraph (c).
164I am unwilling to prefer Dr Entwisle’s opinion concerning the plaintiff’s capacity for suitable employment for the reasons given, and I prefer the reasoning of Dr Ingram, that the plaintiff is incapable of working at present not only in
pre-injury employment, but in any employment because of his depression and the effect that this has on his motivation, concentration and energy levels. Because Dr Ingram expressed the opinion that the plaintiff’s incapacity for employment from a psychological perspective is likely to be indefinite, unless there is an improvement in his depression, I am nonetheless satisfied the effect is that the plaintiff’s mental state is permanent. Although Dr Ingram queried stability because of a possibility that there will be some improvement for the plaintiff with changes in antidepressants, there have been alterations to the plaintiff’s prescribed medications over time, and yet he continues to present with the diagnosis and effects of a severe depression as Dr Ingram identified. I am not willing to assess the possibility of an improvement in the plaintiff’s depression due to potential future modifications to medications, as a sufficiently sound basis to not be satisfied that the plaintiff’s condition is permanent.165Although Dr Ingram did think that the plaintiff’s limitations in employment were largely related to his pain, separately he expressed the opinion that the plaintiff would be unable to work because of his depression and the effect that this has on his motivation, concentration and energy levels.
Loss of Earnings Calculations
166Because of my preference for and adoption of the plaintiff’s account of his mental state that includes a lack of concentration and my preference for Dr Ingram’s opinion, the following is largely an academic exercise.
167The plaintiff is aged 43 and has been out of the workforce since October 2020.
168The plaintiff claims that the best reflection of his “without injury” earnings is in the 2019 financial year.[179] Ms Cooper said that “essentially we agree on the without injury earnings figure.”[180]
[179]PCB 21.
[180] T 43, L 7-8.
169The gross income is $86,736.00 or $1668.00 gross weekly earnings. 60 per cent is $52,041.60 or $1,000.80 gross weekly earnings.
170The CoWork report identified the following employment options that were put to the plaintiff:
· Internal Salesperson/Customer Service Officer; and
· Sales and Marketing Manager.
171The incomes applicable to each job was:
· Internal Salesperson $68,796 F/T - $34,398 (H/T)[181]
· Purchasing Officer $82,680 F/T - $41,340 (H/T)[182]
[181]Exhibit D2, DCB 80.
[182]Exhibit D2, DCB 84.
172Ms Cooper in the course of final address, sensibly recognised that the defendant’s position was an “all or nothing” proposition, that is, in order to defeat the plaintiff’s claim for a loss of earnings, I would need to be satisfied that the plaintiff possesses a capacity for the identified suitable employment on a full-time basis.
173For the reasons I have given, I am satisfied that the plaintiff does not possess a work capacity due to his injury under paragraph (c) and, therefore, his application for a certificate for a loss of earnings loss must succeed.
174However, even had I been satisfied that the plaintiff has a retained capacity for half full time hours, that is, in the order of up to 19 or 20 hours per week in suitable employment, the plaintiff’s application for a loss of earnings would still have succeeded based on the figures.
175Because I am satisfied that the plaintiff has proved a loss of earning capacity due to a permanent severe mental or permanent severe behavioural disturbance, this will result in him being granted leave to commence proceedings for both pain and suffering damages and loss of earning capacity damages.[183] I also note that the following matters have additionally informed the conclusion I have arrived at.
[183] Advanced Wire & Cable Pty Ltd and VWA v Abdulle [2009] VSCA 170, [63].
176In measuring whether an injury is serious, in Dwyer v Calco Timber (No 2)[184] Ashley JA said:
Finally, I agree with the submission for the respondent that in assessing whether the impairment consequences of injury are serious, one should consider not only what symptoms there are and what the worker is precluded from doing, but also what limits there are to symptoms and to inhibitions upon activities. It is true that impairment is concerned with what has been lost. But the significance of what has been lost, which bears upon the seriousness of consequences, may be informed, to an extent, by what is retained.[185]
[184][2008] VSCA 260, (“Dwyer”).
[185] Ibid [27].
177The significance of the plaintiff’s impairment consequences in terms of what has been lost when informed, to an extent, by what has been retained satisfies me they are serious.
178I am satisfied that the plaintiff presented with no prior history of emotional disturbance. His lot has changed much for the worse. He takes Zoloft 200mg daily and Mirtazapine 30mg daily for depression. He sees his psychiatrist, Dr Kokkinias, once a month, and his psychologist, Ms Costa, once a fortnight. The plaintiff’s account given to Dr Ingram of the emotional reactions from his depressed state was not challenged. The plaintiff is not old, and the prospect of a permanent depression of the order that has been described, and that I accept prevails, is more than a significant cross to bear and is severe. He has also satisfied the narrative test.
179Given my finding that the plaintiff has proved an entitlement to certificates for both heads of loss relying on under paragraph (c) of the definition of serious injury, it is strictly unnecessary that I address the claim for the grant of certificates based on paragraph (a) of the definition. However, had it been necessary to do so, I would separately have been satisfied that the plaintiff proved that the work injury caused him to suffer a permanent serious impairment to the spine due to an aggravation injury he sustained at work.
180The defendant certainly established that the plaintiff presented with a troublesome spine before his injury. Ms Cooper directed the plaintiff to the history that made good that state of affairs. However, I think the point of relevant distinction is that there is nothing to gainsay the plaintiff’s evidence, and the submission advanced by Mr Valiotis, that despite his pre-injury presentation, the plaintiff was able to continue his employment and engage in the very many and varied activities of daily and family life he had described, and that as well, his recreational activities were not interfered with or lost, to the extent the plaintiff said has prevailed since the injury. I see no reason to doubt the plaintiff’s evidence overall.
181The plaintiff said that pain significantly impacts his ability to sleep, and he often experiences poor sleep due to pain. He noted that he frequently wakes up with pain in his lower back accompanied by spasms in his right leg. He takes Melatonin most nights.
182The plaintiff said he is restricted in driving for extended periods, and that driving for more than 30 minutes exacerbates symptoms in his back, right sciatica, and right knee. Additionally, he referred to limitations in prolonged standing, sitting, and walking, and also difficulty navigating stairs.
183I accept that his injury has affected his ability to interact and play with his daughters. He said he used to go on 5km school fun runs with them, but now struggles to lift them up at bedtime.
184I accept that the plaintiff can manage school drop-offs and collections and supervises his children at home. He can ferry them to karate and tutoring although with the latter activity, he goes home before returning to collect them, rather than waiting for them. The footage seen of the plaintiff on the ground and altering his position while his little ones went about their karate, is at least indicative of the need for him to alter positions even when supine, in order to obtain and retain some degree of comfort.
185I accept that the plaintiff has lost any capacity to engage in fishing without it being accompanied by pain, and he has lost his capacity to undertake any share of the tasks associated with his annual camping holidays with friends. He used to enjoy fishing on friends' boats, but has found it painful the few times he said he went out after his injury. He is restricted in gardening and undertaking any of the associated landscaping he deposed is required at his home, and he cannot cook as he once did, although this largely seems to be reflected in a reduction in the frequency he cooks dinners rather than a complete loss of that capacity.
186The plaintiff is prescribed Endone 10mg for pain management, that he takes as needed and that he said can be as frequent as three times a week when pain is severe.
187Having regard to each of the reductions and interferences identified, the plaintiff’s continuing need for strong pain relief, I am satisfied that the same is the result of and caused by the aggravation to the plaintiff’s spine resulting from the work injury, and in particular to his low back. I assess the aggravation itself as more than significant and it is severe, in terms of its pain and suffering consequences for the plaintiff.
188I am also satisfied that the plaintiff has proved a requisite loss of earning capacity due to the aggravation injury to his spine and when excluding the effects of the injury under paragraph (c) of the definition.
189I have paid regard to the state of the certification by the plaintiff’s GP. True it is, that there have been periods of time during which Dr Tan certified the plaintiff fit for light duties, such as three hours a day for two days a days a week with restrictions on lifting and bending of the lower back, and likewise certified him on working from home shortly prior to his employment ending with the employer. I think it is problematic to make anything of note that is adverse to the plaintiff because of the set up difficulties he referred to in relation to the suggested option to work from home. That was not as I understood the evidence, a real job, but one it was hoped the employer could facilitate for the plaintiff and it transpired before his employment ceased with it. I do not assess his evidence about it, and the practical matters he referred to, as evincing a desire by the plaintiff to prefer to stay at home performing domestic activities rather than by attempting to obtain suitable employment. There is nothing I was directed to in the evidence in terms of the plaintiff’s pre-injury background to suggest such a mentality on his part.
190Dr Tan’s opinion is that based on the plaintiffs spine, he has no current capacity for pre-injury duties or for suitable alternative employment. Dr Chiem was of a like opinion and because of the plaintiffs chronic pain, he was pessimistic there would be a recovery to the extent necessity for a return to work. Like conclusions were expressed by Dr Chan. By contrast, Dr Thomas effectively concluded that the plaintiff presented with no organic explanation for pain and had a capacity for suitable employment. He also offered the opinion that the plaintiff’s ongoing pain complaints are not in keeping with the normal mechanism of injury, and he said, in a somewhat didactic tone that “An injury occurs, treatment is instigated and pain resolves. This has not occurred.”[186]
[186]Exhibit D5, DCB 168.
191Although referring to a pre-existing lumbar condition, Dr Thomas did not suggest it was the cause of the plaintiff’s presentation, and he said he was essentially at a loss to explain the plaintiff’s account of pain and restriction, and yet because of it, and despite believing that the plaintiff has a capacity for suitable employment, he said that employment would need to be accompanied by a number of restrictions, and consist of work that was “back friendly”. Presumably this was due to the state of the pre-existing spine. Overall I found it difficult to follow the path of reasoning in his reports.
192Dr Slesenger thought only that the plaintiff had suffered an aggravation of
pre-existing degenerative lumbar spine disease, but that this aggravation had resolved. His opinion appears to have been coloured to some extent by his concerns about the mechanism of injury although why that was so, was not explained. He further added that the plaintiff would have been at risk of lower back pain regardless of the injury and, therefore, “his current impairment related to his pre-injury status and to degenerative disease.”[187] In terms of work, he considered the plaintiff to possess a capacity for suitable employment but also with series of restrictions based on the state of the plaintiff’s non work injury and resolved back. I am not satisfied that Dr Slesenger offers a basis that should lead me to conclude that the aggravation had ceased, or when it ceased, and despite the opinion that the state of the plaintiff’s spine put him at risk sans work injury, that does not inform the nature and extent the aggravating injury of itself accounts for the state the plaintiff has found himself in. I am not satisfied there has been a resolution.[187]Exhibit D6, DCB 181.
193For the reasons I have endeavoured to explain, I am not able to adopt the opinions expressed by either Dr Thomas or Dr Slesenger. I regard the functional limitations experienced by the plaintiff caused by his lower back aggravation, the pain accompanied by it, the need for strong pain relief, the disturbed sleep, and its poor prognosis, as a sufficiently sound basis to conclude that the plaintiff has no capacity for work or for suitable employment on a reliable and consistent basis.
194I would also have been satisfied that the plaintiff proved that in the identified jobs relied on by the defendant, he lacks the necessary qualifications and skills for aspects associated with them about which the plaintiff testified in re-examination, and that because of his aggravated impairment to the spine, it is not reasonable to anticipate the plaintiff could be trained and equipped to perform those roles on a reliable and consistent basis. Moreover, even should I have found otherwise I am not satisfied the plaintiff has a realistic capacity for full time hours in the roles referred to, and that even on a part time basis, he satisfies the claim for a certificate for both pain and suffering and loss of earnings.
195I will hear the parties on the form of final orders and costs.
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