Mosavi v Victorian WorkCover Authority
[2025] VCC 690
•28 May 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
No. CI-23-05278
| MOHAMMAD POUR MOSAVI | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | His Honour Judge Pillay |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 27 May 2025 |
DATE OF JUDGMENT: | 28 May 2025 (ex-tempore) |
| CASE MAY BE CITED AS: MEDIUM NEUTRAL CITATION: | Mosavi v Victorian WorkCover Authority [2025] VCC 690 |
REASONS FOR JUDGMENT
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Subject: WORKPLACE INJURY
Catchwords: Workplace injury – whether the impairment consequences attributable to
extant work-related injury rise to the level necessary to satisfy the serious injury test – plaintiff retains a large occupational social and domestic capacity – daily reliance on pain medication
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited: Kelso v Tatiara Meats [2007] VSCA 267
Judgment: Application granted
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr N.J. Dunstan | Slater Gordon |
| For the Defendant | Ms K. Manning | Hall & Wilcox |
HIS HONOUR:
1 As is my usual practice, I propose to read brief oral reasons into transcript. The parties will then be given a revised copy of the transcript shortly thereafter. I will now begin my oral reasons.
2 Mohammad Pour Mousavi was born in Iran in 1971 after arriving in Australia as an asylum-seeker in 2011. He began working as a theatre technician at the Epworth Hospital. He suffered injury to his low back on 22 August 2016 while at work pushing a heavy trolley. While he managed to return to work for a number of years, the condition worsened in 2022. He now claims that that worsened injury has impairment consequences which satisfy s 325 of the Workplace Injury Rehabilitation and Compensation Act 2013 and entitle him to a determination that he has sustained a serious injury.
3 There are two real issues in dispute between the parties. The first was in relation to causation. Does Mr Pour Mosavi suffer from a work-related back injury which is extant as at the date of the hearing on 27 May 2025? If the plaintiff was successful on that, the major issue in dispute then arose namely whether the impairment consequences attributable to that extant work-related injury rise to the level necessary to satisfy the serious injury test.
4 For the reasons which follow, I find that the plaintiff does suffer from an extant work-related back injury and further that the impairment consequences which are attributable to that injury rise to the level necessary to satisfy the test in the Act.
5 The relevant history. The plaintiff was born in Iran in 1971. He worked there as a nurse in theatre. He has two children but he is now separated. He came to Australia as an asylum seeker in 2011. It appears that this was a boat arrival and he spent some time in immigration detention.
6 Between 2013 and 2015 he worked as a security guard. He then obtained work at the Epworth Hospital as an operating theatre technician on a full-time basis.
7 On 22 August 2016 the plaintiff was wheeling a heavy trolley through some doors when the door suddenly closed and he had to move the trolley unexpectedly. He suffered from immediate low back pain. He remained at work but after consulting with his doctor, he left work and consulted with a treating orthopaedic specialist, Mr de la Harpe. Radiological scanning at that time revealed no neural compromise however the plaintiff complained of low back pain with some radiation into his legs.[1]
[1]Plaintiff’s Cout Book (“PCB”) 28-33
8 He remained off work and began a course of physiotherapy. Mr de la Harpe then recommended he begin hydrotherapy and core stabilisation work and he managed to return to work about three days per week in about October 2016.[2]
[2]PCB 68-80
9 His evidence is that from the time of his injury to date, he has remained on daily medication being both anti-inflammatory such as Voltaren, plus pain medication such as Panadol with occasional use of stronger medication such as Mobic or Lyrica.
10 The plaintiff began full duties' work around late January 2017 in his old position at the Epworth Hospital.[3] He then began a course of study over three months during which he obtained accreditation as a registered nurse to work in Australia. His evidence was he obtained that qualification by study at Deakin University but also working full time at the Epworth Hospital.
[3]PCB 68
11 He then began employment as a theatre nurse at the Peter MacCallum Hospital in 2018. He moved from there to another smaller cancer hospital and then from there in October 2018 he began work at the Northern Hospital at the Broadmeadows' Clinic as it was closer to his home and also because he was required to be on his feet less than at other operating theatres which had more complex surgeries.
12 The plaintiff's work situation has remained the same since this time. However, in mid-2022 he returned to his treating doctor because of his worsening lower back pain and was referred for a CT scan.[4] There was no specific reason for this worsening pain according to his treating doctor.[5]
[4]PCB 32-44
[5]PCB 44
13 After a radiological investigation, he was referred back to Mr de la Harpe in April 2023. He recommended that he have a cortisone injection and that was performed in mid-2023. He struggled with that procedure and gave evidence that it did not have any long-lasting effect.
14 Mr de la Harpe then wrote to the WorkCover insurer recommending laminectomy surgery at the L4/5 level. The Medical Panel opined in September 2024 that surgery was not a reasonable medical and like expense.
15 The plaintiff has not had that surgery nor has he gone onto the public waiting list to have that surgery. He said that is because he was not guaranteed to have his specialist, Mr de la Harpe, perform the procedure.
16 Turning to the first issue. Does the plaintiff suffer from a work related back injury which is extant? The defendant put this matter in issue, but accepted fairly that the support for that position was limited to the opinions of Dr Slesenger and also Dr Romas. I do not accept Dr Slesenger's opinion. This is because he opined in 2016, the only time when he has examined the plaintiff. This is some 9 years ago. It takes no account of the plaintiff's worsened condition in 2022, or the subsequent radiology, or importantly, the opinion of the treating medical specialist, that there is now some evidence of neural compression.[6]
[6]PCB 69
17 His initial report considered that the plaintiff had sustained an injury in August 2016. However, it is only in his supplementary report of 2017, which was made after viewing some video surveillance of the plaintiff in November 2016, that he came to the opinion that any such injury had resolved.
18 That opinion once again takes no account of events subsequent to November 2016, or has any regard to the fact that the plaintiff has required ongoing medication, treatment and orthopaedic investigation.
19 Furthermore, Dr Slesenger has had no regard to the treating doctor's opinions, particularly that of Dr de la Harpe, who has had a long-term clinical interest in the plaintiff. Furthermore, Dr Slesenger is not an orthopaedic specialist, and I consider in this regard greater weight ought to be afforded to the orthopaedic and neurosurgical opinions, particularly from Dr de la Harpe, but also Dr Carey and Associate Professor Bittar.
20 As for Dr Romas, while his opinion is more recent, I consider his opinion to be an isolated one. For example, it is particularly contradicted by the Medical Panel opinion comprising both orthopaedic and neurosurgical opinion.[7]
[7]Defendant’s Court Book (“DCB”) 45; PCB 107
21 Further, Dr Carey makes clear that the initial injury in August 2016 has never resolved, and what is currently present is a continuation of the deterioration of that initial injury.[8] This is similarly the opinion of Associate Professor Bittar.[9]
[8]DCB 125-126
[9]PCB 85
22 Lastly, as I have said great weight should be accorded to Mr de la Harpe's opinion that the plaintiff has a work-related back injury which is extant.[10]
[10]PCB 69; PCB 78
23
It can be seen from that brief review that Mr Roma’s opinion is isolated, and I do not accept it. As such I accept that the plaintiff sustained, on 22 August 2016, an aggravation of pre-existing degenerative changes in the lumbar spine causing degenerative and mechanical back pain without discrete
radiculopathy.
24 Furthermore, I find there has been a deterioration of that condition in 2022, with some nerve root compression. This accords with the findings of Mr de la Harpe, whose opinion I place great weight upon.[11]
[11]PCB 69
25 Turning then to the issue of the impairment consequences which are caused by the low back injury. The defendant first put in issue the reliability of the plaintiff's affidavit evidence.
26 The defendant's pointed to the discrepancy between the first and second affidavits. It is well known in applications such as these that it is for the plaintiff to provide affidavit evidence which is comprehensive and detailed to support the application. That affidavit material is filed at the time when the application is made to the Authority for serious injury certification. It is an important document and it is well understood that it is important for it to be detailed and comprehensive so a proper assessment can be made by the Authority.
27 However, in this case the defendant pointed to the fact that the first affidavit omitted significant detail which only then found its way to the second affidavit.
28 The first affidavit in this matter was sworn on 11 May 2023. In it the plaintiff omitted three significant matters which found their way into the second affidavit sworn on 25 March 2025. These were in relation to the effect of the injury on his sleep, his ability to play social volleyball and complete domestic tasks.
29 None of these matters were in the first affidavit. When it was put to the plaintiff that these were significant omissions he simply indicated that he had forgotten to put these matters in, and said they were, "my bad." [12]
[12]Transcript (“T”) 41, Line (“L”) 30
30 While the plaintiff was not pressed significantly as to these omissions, I consider the omissions particularly serious, and specifically in relation to the impact on his sleep and domestic activities these are overall significant matters. They quite clearly go to the severity of the impairment consequences caused by the low back injury. In circumstances where he had deposed in the first affidavit to the limits on his sitting and standing and driving, why the impact on his sleep was not also disclosed is unclear.
31 Similarly, as to why the domestic tasks were not discussed, when he had mentioned difficulties with his social life is also not clear.
32 I consider that the failure to comprehensively depose to matters in his first affidavit suggest there some real unreliability as to whether his affidavit material is as comprehensive as it should be.
33 Further to this, in his first affidavit he had deposed in the following terms. I quote:
“I have been advised that if my back injury worsens that I will need to
discontinue my duties as a theatre nurse.”[13]
[13]PCB 15 at paragraph [25]
34 When he was taken to this in cross-examination, he for the first time stated that he had become so concerned with his ability to work as a theatre nurse that he had begun a real estate agents' course online and completed some components offered before giving it up.
35 I consider this goes to a central matter in the plaintiff's claim which ought to have been disclosed. That is the fact that he might have had to give up his chosen career and pursue something entirely different because of his back injury.
36 Why it was that this only emerged in the course of cross-examination despite two affidavits and numerous histories to a variety of doctors is entirely unclear. It furthered my impression that the affidavit material was not as comprehensive as it could be.
37 On this point of his occupational capacity two further matters arise. In his affidavit material he had raised the fact that he had wanted to work as a cardiac nurse but that was foreclosed to him because of his back injury.[14]
[14]PCB 15 at paragraph [26]
38 However, there was little detail as to what different work a cardiac nurse might do save for the plaintiff indicating that such nurses are on their feet for eight to ten hours at a time. He gave evidence that he could simply not do that.
39 His affidavit material did not say that and no medical history contained that detail or ban on such activity. It was in the course of this cross-examination that the plaintiff also revealed that his employer has permitted him to use a chair while in the theatre to sit occasionally when longer procedures were occurring. He gave evidence in cross-examination that he would occasionally sit down for five to ten minutes and this would help his back pain. This then allowed him to complete the rest of the theatre procedure on his feet. None of this was in his affidavit material nor was it contained in any of the histories taken by the doctors.
40 Once again, these matters are central to his occupational capacities which he says are impacted by his low back injury. Why these matters were not put in his affidavit was unexplained. And the evidence produced from him in cross-examination suggests that something less than a full story was being communicated to the court.
41 This is shown by the evidence that the plaintiff gave in relation to his taking of medication. It will be recalled that the plaintiff's evidence was that he took medication daily. In his first affidavit he swore, and I quote:
“I am currently taking Voltaren 50 milligrams twice per day, Panadol up to three
times per day, and Mobic occasionally.”[15]
[15]PCB 15 at paragraph [32]
42 In his second affidavit he deposed, and I quote:
“My current treatment regimes involves taking Voltaren 50 milligrams times twice daily and taking Panadol as needed, usually about four tablets at least three times a week.” [16]
[16]PCB 18 at paragraph [8]
43 Voltaren tablets of 50 milligrams require prescription. It appears agreed between the parties that there are only two Voltaren scripts in the last two years. One on 30 October 2023 and another on 29 January 2025.
44 The plaintiff gave evidence that in fact he could get over the counter Voltaren tablets of 25 milligrams and he would simply double the dose to get to 50 milligrams which is why he had deposed as he had.
45 In that circumstance however it is entirely unclear why he would bother getting a script at all. It seems to me that the affidavit material makes the strong suggestion that prescription medication of 50 milligrams was being taken to imply the condition was serious. However the wording in the affidavit is somewhat ambiguous and I accept that this is not a definitive implication of the words used.
46 Similarly, the plaintiff had deposed to on occasion taking Mobic to break up his Voltaren dosage. However, it appears that up to March 2025 Mobic had only been prescribed on 20 June 2022 and again on 24 August 2022 when 30 tablets with three repeats were prescribed. It is unclear then whether the plaintiff was required or could take Mobic during the course of 2023, 2024 or at any time during 2025. I conclude from that that it is entirely unclear how often the plaintiff does currently take Mobic.
47 The plaintiff was also challenged on his physical restrictions. He was taken to the report of Mr Bittar,[17] in which he has recorded a history of failing to being able to walk for than ten minutes, sit for 15 minutes or stand for 30 minutes and could only lift less than ten kilograms in weight.
[17]PCB 83
48 However, the plaintiff in his affidavit had deposed to having much greater ranges of function which he had described as sitting for two hours, standing for 45 minutes and having a limited driving capacity.[18] It was put to him that this was to further the impression to Mr Bittar that he had a serious injury.
[18]PCB 15 at paragraph [31]
49 The plaintiff described away that inconsistency and explained it could be because he described to Mr Bittar his state of function without medication. This is not reflected in Associate Professor Bittar's report.
50 Video surveillance was also show of the plaintiff. Video from November 2016 shows the plaintiff at a Kurdish function doing set up duties, dancing and socialising and then packing down duties. On my viewing of the evidence, the plaintiff moved freely and in an entirely unrestricted and at times energetic manner. It will be remembered that at that time the plaintiff was on part-time hours and light duties from his job as a theatre technician.
51 The activities shown on the video stand in contrast to the work that he would have been able to do and perform as a theatre technician however which seems to have involved heavy work at least in moving beds.
52 The second video was taken in November 2024. That video lasted for only two minutes and it was conceded was isolated from some 15 hours of surveillance. The plaintiff accepted that it showed him returning home most likely after a day off of work.
53 After that, he gets out of his car and walks towards the front door when an errant chicken appears in the front yard. In a vigorous display, he attempts to throw his lunch bag at the chicken and then run after it to chase it away. The plaintiff is seen bending, in a short run and throwing during the course of this short two-minute video. I record my assessment that the plaintiff appeared to move in an entirely unrestricted, and at times an energetic manner in chasing this errant chicken over the course of this two minutes.
54 Of course I recognised that this is an extremely small snapshot of the overall surveillance and the plaintiff's life in generally and so I temper any conclusions that could be drawn from that very brief episode of film.
55 Overall, having reviewed those matters which the defendant pointed to as to why the plaintiff was an unreliable witness prone to exaggeration and at times embellishment, I would accept the defendant's submission to a degree. I certainly accept that the plaintiff was not as comprehensive as he could have ben in disclosing the effect on, for example, his sleep and his volleyball and his domestic tasks. However, I consider these matters to be well-covered by his second affidavit, his treating doctors' recordings and so were not deliberately concealed.
56 Rather I consider it likely to have been an omission by the legal practitioner who assisted the plaintiff in including relevant matters which are routinely seen in affidavit material in such applications as these. Those deficiencies should not be visited on the plaintiff who ultimately deposed to them well prior to trial. The other matters, however, in relation to the failure to disclose the impact on his occupation capacity are more significant given that the plaintiff had not alluded to them despite mentioning for example, his difficulties working as a theatre nurse.
57 It is difficult to understand why these maters were not included and I consider the plaintiff's evidence on these points overall was unreliable. The video evidence from 2016 is somewhat dated and I place less weight on it than that shown from November 2024. However, that evidence demonstrates over a short space of time that the plaintiff has greater range of motion and energy than his affidavit material reveals.
58 However, that must be tempered by the fact the plaintiff has disclosed quite clearly that he works 40 hours a week in a job which involves him doing some physical tasks. In that setting, the second video is of little moment.
59 To sum up then I consider the plaintiff 's evidence in some parts is not as comprehensive and he has embellished in respect of the impact the injury has on his occupational capacity. However, save for these matters, I accept the plaintiff's evidence.
60 Turning to consideration of the impairment consequences which can be found to have been caused by the low back injury. Most importantly, I find that as a result of the low back injury, the plaintiff has required since late 2016 continuous ongoing medication in the form of non-steroidal anti-inflammatory and Panadol. The dosage of this is Voltaren 50 milligrams twice per day, and Panadol up to three times per day some three times per week. I find that Mobic is currently not being taken given the last script as nearly two-and-a-half years ago.
61 I find that the plaintiff experiences constant low back pain with pain also into the back of the thigh and calf, worse on the left. This is the basis for the pain medication which I accept that he takes. The pain he experiences and the requirement for medication is supported by his treating orthopaedic specialist, Mr De La Harpe, in is report of 6 February 2024, and in particular in answer to Question 4 at p.79. This is supported by the fact that he has recommended the more invasive lumbar injection to cope with this escalating pain situation, since the deterioration in 2022. It is recognised that this gave only temporary relief, and hence, Mr de la Harpe considered that surgery was the most appropriate course.
62 The significance of this is that there has been an attempt at conservative measures in the form of medication, physiotherapy and hydrotherapy which has not been successful. Faced with the escalating situation, minimally invasive procedures have been tried, but have similarly not been successful.
63 In that setting surgery is now thought appropriate by Mr de la Harpe. It is not a step taken lightly, and indicates the severity of the condition, and this supports the need for ongoing medication at the levels that the plaintiff deposes to.
64 The necessity of surgery is not quibbled with by Dr Carey. It is positively endorsed by Associate Professor Bittar.[19] I pause to note that Mr Bittar clearly appreciates that the plaintiff is no longer a theatre technician, but a nurse. He clearly rules out the plaintiff being able to work as theatre technician, given it is heavier duties than a nurse. This supports the notion that the severity of the plaintiff's condition has had an effect on his overall work capacity, but more importantly underpins the need for medication.
[19]PCB 85
65 However, given the unreliability that I have found in respect of the plaintiff's evidence as to his work capacity, I do not find that he has lost the ability to perform the work of a cardiac nurse. No doctor has remarked upon it, and the plaintiff's overall evidence as to why specifically that role was closed to him, is not clear. This is in the setting of his failure to disclose the fact that modifications have been required at his current employment to allow him to continue to work in theatre at all, and given the late breaking evidence about the real estate course.
66 Just to conclude as to his pain consequences, I also record that the plaintiff's treating doctor agrees with Dr de la Harpe's opinion of a worsening state of the back over the last few years.[20] I accept that material, and as I have set out find that the plaintiff has constant low back pain, extending into the legs, worse on the left, which requires daily pain medication, which has been the case now for several years and shows no signs of abating.
[20]PCB 40; PCB 64
67 I further accept that the plaintiff's sleep is interrupted as he deposed to. I accept that his back pain wakes him up two to three times a week, and he has difficulty going back to sleep.
68 It was suggested that similar to being able to sit during theatre operations, as long as he could stretch he could ease his back pain and then fall back to sleep. I do not consider that comparison to be apt. It is well known that once sleep is broken it is not easy to resume sleep, even where the source of physical discomfort or distraction has been removed. This is because the sleep cycle acts often independently from external sources of discomfort, so that sleep might be difficult to find, even when someone has no physical ailment.
69 As the defendant in this case accepted, this matter is finely balanced. This is because the plaintiff has retained a large number of capacities which must also be brought to account. For example, the plaintiff is able to work as a theatre nurse 40 hours per week, and occasionally takes overtime.
70 Those shifts are 10 hours at a time, four days per week. I accept that the plaintiff then has a three day break to recover. However, the fact is that the plaintiff has been working in this manner for some years, and it appears regularly taking overtime.
71 Though he gave evidence of minor modification to his work duties, to accommodate his back injury he does not describe any great modification at all. In that role I accept that he has to do some manual tasks, is on his feet and leans over to clean and sterilise equipment, and to hand it to surgeons.
72 In addition to these, I find that the plaintiff has the ability to holiday normally. This is demonstrated by his numerous recent holidays. To Türkiye for some four weeks in 2023 - sorry, then in 2024 he travelled to Europe on a 22 day tour where he was on a bus travelling to 15 European cities. Then in December 2024 he had a further holiday to Thailand where he went to Bangkok and Pattaya.
73 While he deposed to taking extra medication to cope with these flights, I consider that he was able to holiday and enjoy those trips. The fact of being able to go to the 15 European cities by bus also speaks to his ability to endure such activities and not be deterred from them, despite having previously experienced problems on the flight to Turkey, which he took in 2023. Overall, the discomfort was clearly not enough to deter him from further holidays.
74 In addition to that, I do not accept that the plaintiff is restricted in domestic tasks to any great extent. I above refer to the restrictions which Associate Professor Bittar considered relevant to him and these precluded repetitive tasks of bending, lifting, twisting or stooping. In domestic tasks where he can take a break and spread them out, potentially over this three days of weekends, most of the repetitive tasks can be avoided.
75 Similarly, while Mr de La Harpe considers that there is a five kilogram lifting restriction, I do not consider this would impact his ability to perform domestic tasks to any great extent.
76 I further accept that he can socialise reasonably normally. This is because he can obviously sit and stand and vary his posture over the course of a social gathering either at a wedding or a dinner or with meeting friends for coffee similar to what he does at work.
77 Coming to synthesise these matters it is relevant to note what the Court of Appeal said in Kelso v Tatiara Meats:
“The endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of ‘very considerable’ consequence.”[21]
[21][2007] VSCA 267 at paragraph [199]
78 Added to this is the fact that despite his injury, the failure of conservative treatment, and the denial of the request for surgery, the plaintiff has persevered at work. This indicates a willingness to stoically get on as best he can. It is relevant that his treating doctors all consider him genuine in his complaint as do Mr Carey and Associate Professor Bittar.
79 This supports my finding as to the acceptance as to his pain levels, need for medication, and the severity of his condition and impairment consequences I have described above.
80 Here while I found that the plaintiff retains a large occupational capacity, social and domestic capacity, he is someone who has to endure daily pain requiring medication for now eight years. That is worsening and he is a candidate for surgery.
81 Much was made of the fact that he has not elected to go onto the public waiting list for his surgery. But the fact that he requires such surgery speaks to the severity of his condition as does the requirement for ongoing pain medication at this level.
82 I accept also that his pain is constant and affects his sleep. While that is not a daily occurrence, it is a significant disruption to a person's normal life.
83 While matters such as these are not free from doubt, in this circumstance having accepted the plaintiff's evidence as to his pain, medication, and impacts on his sleep, I find that he has sustained a serious injury for the purposes of the Act.
84 I will make a determination in his favour.
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