Nigrawi v Temple View Pty Ltd
[2022] VCC 1472
•12 September 2022 (Revised)
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| WORKCOVER List |
Case No. CI-20-05043
| AMEER NIGRAWI | Plaintiff |
| v | |
| TEMPLE VIEW PTY LTD (ACN 136 592 213) | Defendant |
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JUDGE: | HIS HONOUR JUDGE CLARK | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16, 17, 18, 19, 20, 23, 24 and 25 May 2022 | |
DATE OF JUDGMENT: | 12 September 2022 (Revised) | |
CASE MAY BE CITED AS: | Nigrawi v Temple View Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1472 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Rejection of claim for back injury – weekly payments
Legislation Cited: Workplace Injury Rehabilitation Compensation Act 2013
Cases Cited:St Mary’s School v Askwith [2011] VSCA 90; Popovski v Ericsson Australia Pty Ltd [1998] VSC 61; Downes v Maxwell Richard Rhys & Co Pty Ltd (in liq) [2014] VSCA 193; Dordev vCowan & Ors [2006] VSCA 254
Judgment: Judgment for the plaintiff.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | The plaintiff appeared in person | - |
| For the Defendant | Mr R Paoletti | Hall & Wilcox |
HIS HONOUR:
Introduction
1These proceedings concern the rejection of the plaintiff’s claim for compensation under the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) in respect of back and psychological injury, which the plaintiff alleges he sustained in the course of his employment with the defendant on 14 December 2019.
2The plaintiff seeks weekly payments of compensation from 15 December 2019, together with medical and like expenses.
3The plaintiff lodged a claim for compensation in accordance with the Act on 24 March 2020. By notice dated 23 April 2020, the defendant’s authorised insurer rejected the plaintiff’s claim on the basis that:
(a) the plaintiff did not sustain an “injury” within the meaning of the Act;
(b) the plaintiff did not sustain an injury arising out of or in the course of his employment;
(c) the plaintiff did not lodge his claim for weekly payments as soon as practicable after the incapacity arising from the claimed injury became known.[1]
[1]Amended Joint Court Book (“JCB”) 38-42
4The defendant, at the conclusion of the evidence, abandoned its reliance on paragraph (c).[2]
[2]Transcript (“T”) 610, Line/s (“L”) 20-23
5The issues to be determined are:
(a) whether the plaintiff had sustained an “injury” within the meaning of the Act which arose out of or in the course of his employment with the defendant in circumstances where the plaintiff’s employment with the defendant was a significant contributing factor;[3]
(b) if so, whether the plaintiff had and/or continues to suffer any incapacity flowing from such injury.
[3]St Mary’s School v Askwith [2011] VSCA 90 at paragraph [8]; Popovski v Ericsson v Australia Pty Ltd [1998] VSC 61 at paragraph [19]
6In the course of the hearing, the defendant advised that it did not seek from the Court a determination in respect to the second entitlement period.[4]
[4]T601, L19 – T602, L22, and T627, L22 – T628, L7
7The plaintiff appeared as a self-represented litigant. At the commencement of the hearing, the plaintiff sought leave of the Court for Mr Robert Webb to be appointed as his “McKenzie friend”. There was no objection from the defendant. Orders were made appointing Mr Webb as the plaintiff’s “McKenzie friend”.
8Mr Paoletti of counsel appeared on behalf of the defendant.
9As the plaintiff was a self-represented litigant, in order to ensure the plaintiff received procedural fairness, I undertook a more interventionist role than would normally be the case.[5]
[5]See the legal relevant principles set out by Osborn JA in Downes v Maxwell Richard Rhys & Co Pty Ltd (in liq) [2014] VSCA 193
The evidence
10The plaintiff gave evidence and was extensively cross-examined. The plaintiff called three of his general practitioners: Dr Hossein Yaraghi, Dr Seyed Movahedian and Dr Yasser Alaskary. The plaintiff also called Professor Richard Bittar, neurosurgeon, who had provided a medico-legal opinion. The defendant called Mr Varun Bhargava, a representative of the defendant, and Mr Abdul Sleiman, a co-worker. The defendant also called Mr Rodney Simm, orthopaedic surgeon, who had examined the plaintiff for medico-legal purposes. Additionally, there were twenty-seven exhibits tendered on behalf of the plaintiff and twenty-three exhibits tendered on behalf of the defendant.
The Plaintiff’s background prior to the commencement of employment with the Defendant
11The plaintiff is currently thirty-seven years of age. At the time of the alleged injury on 14 December 2019, the plaintiff was aged thirty-four years. The plaintiff was born in Iran. He attended school until Grade 4. From a young age, he helped his family in their roadside fruit stall. Eventually, the plaintiff opened his own roadside stall. While living in Iran, the plaintiff also undertook manual-labouring work in what could loosely be described as the building industry, and also worked as a shop assistant and cleaner.
12The plaintiff arrived in Australia by boat on 14 July 2013.[6] He was a refugee. He was initially detained at Christmas Island and then the Curtin Detention Centre, before ultimately making his way to Melbourne.
[6] JCB 204
13By reason of his refugee status, the plaintiff received Centrelink benefits in the form of Status Resolution Support Service (“SRSS”) benefits from Services Australia. This program provided a basic living allowance to eligible refugees while they awaited the determination of their immigration status. At some stage prior to the plaintiff’s employment with the defendant, due to a change in government policy, the plaintiff’s entitlement to receive such benefits was restricted. The receipt of benefit was assisted by the provision of medical certificates.[7]
[7]T157, L9 – T158, L9
14The plaintiff, in the twelve months prior to commencing work with the defendant, had, in addition to receiving SRSS benefits, worked for short periods of time in various labouring-type jobs.
15It is clear from the medical records that the plaintiff, prior to his employment with the defendant, had suffered lower back problems. The plaintiff’s pre-existing back condition was a key issue throughout the conduct of this case. It is appropriate, therefore, that I review in detail the plaintiff’s medical attendances, treatment and work in the period leading up to his employment with the defendant.
The Plaintiff’s pre-existing back issues and work prior to employment with the Defendant
16On 8 March 2018, the plaintiff consulted Dr Movahedian, general practitioner, complaining of lower back pain with radiation into his left leg.[8] Dr Movahedian noted that the plaintiff may be suffering from a “bulging disc?” and referred him for a CT scan.[9]
[8]JCB 151
[9] JCB 151
17The plaintiff re-attended Dr Movahedian on 15 March 2018. On that occasion, Dr Movahedian recorded:
“c/o few years history of recurrent low back pain with radiatin (sic) to left leg.”[10]
[10]JCB 150
18The CT scan undertaken 8 March 2018 had revealed, at the L4-5 level, a broad-based disc bulge with minimal canal stenosis and, at the L5-S1 level, a left-sided disc protrusion impinging on the descending left S1 nerve root with mild canal stenosis.[11] Dr Movahedian referred the plaintiff to the Neurosurgical Department at St Vincent’s Hospital, and he was placed on the waiting list. Ultimately, the plaintiff never attended this clinic.
[11]JCB 45
19The next relevant attendance with Dr Movahedian was on 21 May 2018. On that occasion, Dr Movahedian recorded that the plaintiff still had lower back pain and was awaiting neurosurgical review.[12] A Centrelink medical certificate was provided.[13]
[12]JCB 149-150
[13]JCB 150
20On 1 June 2018, the plaintiff consulted Dr Movahedian.[14] It was Dr Movahedian’s evidence that on this day “the physical examinations were normal [and] the neurological examination was normal”.[15] The plaintiff was advised to do “light duties” work and to return “in a month” for review.[16]
[14]JCB 148-149
[15] T464, L19-20
[16]T466, L20-22; JCB 149
21On 26 June 2018, the plaintiff consulted Dr Movahedian. On this occasion, Dr Movahedian recorded that the back pain was less than before, and that the plaintiff was attending the swimming pool for hydrotherapy. Dr Movahedian noted that the plaintiff “feels better”.[17] A Centrelink certificate was provided.[18] The physical examination was normal.[19]
[17]JCB 148
[18]JCB 148
[19]T466, L30 – T467, L1
22In or about July 2018, the plaintiff obtained work as a concreter with “Paul Concreter”. Referring to screenshots of pay records and the plaintiff’s own evidence, it appears that the plaintiff worked as a concreter for a period of about one-and-a-half to two months.[20]
[20]T42, L10-12; JCB 187-188
23On 4 October 2018, the plaintiff next attended Dr Movahedian. On this occasion, Dr Movahedian recorded the plaintiff was still suffering lower back pain with radiation to the left leg.[21] Dr Movahedian deposed that the plaintiff was also experiencing a “tingling” sensation, with “pins and needles” in his left leg.[22] On this day, the physical examination was not normal. Dr Movahedian noted that there was restricted straight leg raising of more than 50 degrees, but the neurological examination of the legs was normal.[23]
[21] JCB 148
[22] T467, L9-11
[23]T467, L12-15
24The plaintiff consulted Dr Movahedian on 12 October 2018 and 16 October 2018, complaining of ongoing lower back pain and seeking letters for Centrelink.[24]
[24] JCB 146-148
25The plaintiff next obtained work at “Poultry N More”. While there was no direct evidence on the start date, it would appear that this employment commenced at some time in or around October 2018. He said that he worked with this employer for about two months.[25]
[25]T43, L2-3
26On 1 November 2018, at about 9.00am, as a result of lifting a pallet in the course of this employment, the plaintiff suffered an exacerbation of his lower back condition.[26] The plaintiff continued working, but his pain got worse.[27] At approximately 2.00pm, an ambulance was called as the plaintiff was complaining of severe pain.[28]
[26] JCB 64
[27] T43, L5-6
[28]JCB 64
27The plaintiff gave evidence that after about two to three hours the pain settled and he returned home.[29]
[29]T145, L17-28
28The plaintiff attended Dr Movahedian the following day. It was recorded in Dr Movahedian’s consultation notes on 2 November 2022 that the plaintiff’s back pain “has almost improved”.[30] The plaintiff sought a letter from Dr Movahedian clearing him to return to work. It was Dr Movahedian’s evidence that, on this day, the physical examination was normal and the neurological examination was normal.[31]
[30]JCB 146
[31]T468, L24-26
29On 3 November 2018, the plaintiff consulted Dr Movahedian. On this occasion, the plaintiff advised Dr Movahedian that his back pain had settled and he was able to do his duties at work.[32]
[32]T469, L8-16
30The plaintiff returned to work at “Poultry N More” for an unspecified short period, before commencing work as a cleaner.[33] The plaintiff deposed that he worked as a cleaner for approximately “a month or so”.[34]
[33]T45, L24-26
[34] T45, L26-27
31On 4 April 2019, the plaintiff next consulted Dr Movahedian.
32On this day, Dr Movahedian recorded the plaintiff as having a long history of lower back pain which sometimes flares up.[35] It was Dr Movahedian’s evidence in respect to this entry:
“Because the patient had told me that he has a long history of low back pain, but sometimes he’s feeling good, sometimes he’s alright; he doesn’t have any pain. But sometimes it flares up. And yeah, that’s what he told me.”[36]
[35]JCB 145
[36]T471, L4-8
33At the time of the 4 April 2019 consultation, the plaintiff’s physical examination was not normal. The plaintiff’s right and left leg raising was limited to 60 degrees. However, the lower limb neurological examination was normal.[37] Again, a Centrelink certificate was provided.
[37]T470, L19-25
34This was the plaintiff’s last medical consultation prior to commencing work with the defendant.
What was the state of the Plaintiff’s back condition when he commenced employment with the Defendant?
35It was ultimately determined, a number of days into the hearing, that the plaintiff had commenced work with the defendant sometime in the week ending 14 April 2019.
36I find that the plaintiff had, throughout 2018 and early 2019, suffered from some lower back pain and referred pain in his left leg.
37Based on the plaintiff’s and Dr Movahedian’s evidence, I accept that from time to time the plaintiff had flare ups of lower back pain and suffered left leg radiculopathy. I also accept that the plaintiff’s back condition would improve to a point at which he was able to undertake work, albeit with a level of vulnerability.
Employment with the Defendant
38The defendant operated the La Famiglia Restaurant, which is located within the Epping Plaza complex. There are two aspects to this business. Firstly, a large restaurant. Secondly, a separate take-away pizza shopfront styled “Pizza Express”.
39The plaintiff was employed as a pizzamaker. The plaintiff worked in both the restaurant kitchen and in the Pizza Express shopfront.
40The hours which the plaintiff worked for the defendant were, for many days into the hearing, a matter of real dispute. The plaintiff’s truthfulness in respect to the hours which he worked and the nature of the duties which he undertook, was challenged by the defendant. Ultimately, it became clear that the plaintiff had in fact worked the type of hours which he had deposed. Indeed, as the trial progressed, it became clear that it had been the defendant who had initially misrepresented the hours which the plaintiff had worked, and his earnings.
41It is useful at this stage to reference the Schedule[38] which the defendant ultimately tendered on 24 May 2022, which sets out the hours which the plaintiff worked.
[38]Exhibit “B” of the defendant’s exhibits
Week ending
Total hours worked
14 April 2019
20
21 April 2019
21
28 April 2019
44.25
5 May 2019
26.25
12 May 2019
44.5
19 May 2019
29.5
26 May 2019
33
2 June 2019
43
9 June 2019
34.5
16 June 2019
35.25
23 June 2019
36
30 June 2019
22
7 July 2019
46.75
14 July 2019
36
21 July 2019
36.5
28 July 2019
52.5
4 August 2019
29.5
11 August 2019
45
18 August 2019
27.5
25 August 2019
35
1 September 2019
53
8 September 2019
35
15 September 2019
46.5
22 September 2019
35.75
29 September 2019
49.75
6 October 2019
44
13 October 2019
48
20 October 2019
55.25
27 October 2019
44.25
3 November 2019
44
10 November 2019
47.5
17 November 2019
33.75
24 November 2019
26
1 December 2019
52
8 December 2019
45
15 December 2019
35.25
22 December 2019
0
29 December 2019
0
42The above schedule is helpful in understanding the extent of the work which the plaintiff undertook during the course of his employment with the defendant. According to this schedule, the plaintiff worked a total of thirty-six weeks for the defendant in 2019. The most the plaintiff worked in any one week was 55.25 hours in the week ending 20 October 2019. Importantly, prior to the alleged injury on 14 December 2019, the plaintiff had worked forty-five hours and fifty-two hours in the preceding two weeks respectively.
43The plaintiff said that he was required to undertake a range of duties in his role as a pizzamaker. He explained these duties would typically involve a level of lifting, bending and twisting. Of particular importance, the plaintiff said that he was required to lift bags of flour which weighed 12.5 kilograms when he was making pizza dough. It was ultimately common ground that the plaintiff did, from time to time, have to lift 12.5-kilograms bags of flour.
44Having considered all of the evidence, I accept that the plaintiff’s work as a pizzamaker did require him to bend, twist and lift on a regular basis. I also accept that the plaintiff was required to, and did, lift 12.5-kilogram bags of flour from ground level. The work undertaken by the plaintiff can generally be described as falling into the category of being moderately physically demanding, although the plaintiff intermittently undertook heavier tasks.
45The plaintiff said that between April 2019, when he started work with the defendant, and October 2019, he had no back problems. Given the hours which the plaintiff was working, the nature of the work he was undertaking, and the lack of any medical attendances for back pain during this period, I accept that evidence.
46In or about October 2019, the plaintiff developed some intermittent low-grade back ache. This backache was not of the nature which required him to seek medical attention, though he did intermittently have days off to rest. The backache settled.
The events of 14 December 2019 at the Defendant’s workplace
47It was the plaintiff’s evidence that on the morning of 14 December 2019, when he commenced work, he was suffering no back pain or problems.
48In the course of his work at Pizza Express during the morning of 14 December 2019, the plaintiff had to lift a 12.5-kilogram bag of flour from under a table. It was during this lift that he alleges he suffered injury to his back.
49The plaintiff explained to the Court that he had bent over with his arms outstretched and was lifting the 12.5-kilogram bag of flour towards his chest when the injury occurred.[39] It was in the process of this lift that the plaintiff suffered what he described as an “electric shock sensation”.[40]
[39]T229, L16 – T230, L15
[40]T229, L16 and 26. See also T53, L18-21; T76, 25-28 and T79, L30-31
50After the incident, while the plaintiff was suffering from back pain, he endeavoured to keep working. However, at around midday, while he was cleaning the dough machine, the pain in his back became unbearable and he ceased work.[41] The plaintiff explained:
“… I continued up until maybe 12 o’clock just doing some minor duties, but with pain, and in the afternoon I was cleaning the dough machine, and it was around that time when the pain became unbearable. And then I left with my hand placed on my lower back because I was in pain and I saw my boss who was having a cigar outside and I told him I’ve hurt my back, and he’s basically responded by saying, ‘When are you coming back?’ And then we exchanged messages on the phone.”[42]
[41]T54, L12-20
[42]T54, L15-24
51That the plaintiff left his workplace is clear. However, the circumstances of the plaintiff’s interaction with his co‑workers and/or management at that time is contentious.
52Firstly, referring to the evidence of Mr Sleiman, a co‑worker called by the defendant. Mr Sleiman was working in the vicinity of the plaintiff on 14 December 2019. In respect to the circumstances of the plaintiff leaving the workplace, it was Mr Sleiman’s evidence:
Q:“And how did it come to pass – did you see him leave that day?---
A:Well, it was just a quick – it was a quick – quick one. I was making a pizza while he was cleaning the pizza machine dough.
Q:Yes?---
A:And I followed – I turned around just like a glance, he put his hand on his back and he just walked out.
Q:Did he say anything to you?---
A:Not a word.”[43]
[43]T580, L3-9
53Mr Sleiman confirmed the plaintiff’s evidence that he placed his hand on his lower back and left the restaurant. This is consistent with the plaintiff’s evidence.
54Referring now to the evidence of Mr Bhargava, the plaintiff’s boss. Mr Bhargava denied that the plaintiff, on 14 December 2019, advised him that he had hurt his back. Indeed, it was Mr Bhargava’s evidence that he did not have any interaction with the plaintiff on 14 December 2019.[44]
[44]T549, L17
55I pause at this stage to make specific comment in respect to the evidence of Mr Bhargava. There were many aspects of his evidence which I found to be unsatisfactory. In the course of giving evidence, Mr Bhargava sought, and was granted, a certificate pursuant to s128 of the Evidence Act 2008. Mr Bhargava had falsely prepared and lodged PAYG statements with the Australian Taxation Office. Mr Bhargava had deliberately understated the payments which had been made to the plaintiff and the hours which he had worked. There were other inconsistencies in his evidence. I cannot be confident of the truthfulness of Mr Bhargava’s evidence. Mr Bhargava is a person who I find is prepared to be dishonest.
The Plaintiff’s consultations with Dr Yasser Alaskary
56The plaintiff, after ceasing work sometime around midday on 14 December 2019, consulted Dr Alaskary at the Epping Medical Clinic at or about 5.39pm.[45]
[45]JCB 182
57It is appropriate that I review the clinical notes of Dr Alaskary of 14 December 2022, and the days following. In the course of the hearing, much was made by the defendant of these clinical notes. Under “History”, on 14 December 2022, it was recorded:
“PT has chronic low back pain about 18/12 after injury while working in concrete.
Radiates down Leg.
PT saw GP in Weirrbee (sic), where he used to live earlier in the year and told apparently disc prolapse.
Referred for physio and neurosurgeon.
Now moved here wants to F/U here.
No red flags.
Examination
SLR L40+ VE stretch test, R40.”[46]
(My emphasis.)
[46]JCB 182
58The plaintiff was referred for a CT scan.
59The defendant maintained this history provided support to their submission that the plaintiff’s lower back problems, as he presented on that day, related to injuries sustained prior to working with the defendant and, in particular, while undertaking concrete work.
60The plaintiff consulted Dr Alaskary two days later, on 16 December 2019. The clinical notes for that consultation record:
“History:
ongoing pain
reports pain worse after did carrying at new job
CT prelim[i]nary report: compromise[d] left L4 nerve root, contacting left S1 nerve root
Plan:
await formal report
consider CT guided steroid injection and referral to neurosurgeon
pt want to claim WC - will need to discuss with work.”[47]
[47]JCB 182
61Moving now to Dr Alaskary’s viva voce evidence. Dr Alaskary did not resile from the history recorded in his notes of 14 December 2019. However, Dr Alaskary explained the challenges which he faced when communicating with the plaintiff, given language issues and, in particular, different dialects. Dr Alaskary emphasised that his priority on that day was the plaintiff’s pain and his clinical presentation.[48] When asked to explain the reference in his clinical notes on 16 December 2019 to the plaintiff’s pain being worse after carrying out his new job, it was Dr Alaskary’s evidence that it was not unusual to “flesh out the history in more detail in subsequent consultations”.[49] When asked to explain further what he meant by this, he advised:
“… people will come in and you will take a brief history to get an overview of what’s wrong with them. You’ll organise for appropriate testing and then you will visit them again and rehash out the history to make sure that you’ve not missed anything and in that second or sometimes even third consultation more things can come to light and in view of the investigations we would have had at the time I would try and match up the history with what I was seeing on the investigation.”[50]
[48]T508, L29-30
[49]T510, L18-19
[50]T513, L5-13
62I accept Dr Alaskary’s explanation that he did not obtain a full history on 14 December 2019. I accept that the plaintiff had, no later than 16 December 2019, advised Dr Alaskary that he had hurt his back in the course of his employment with the defendant.
63Referring now to Dr Alaskary’s clinical examination. What is of importance to me, is Dr Alaskary’s findings in the course of his examination on 14 December 2019. In particular, on examination, the plaintiff’s straight leg raising was limited to 40 degrees only, and there was a positive stretch test. This is consistent with nerve irritation. On that day, Dr Alaskary considered the plaintiff’s clinical presentation warranted a referral for CT scanning. A CT scan was undertaken on 16 December 2019. It was noted:
“CONCLUSION
Left foraminal protrusion of L4/5 disc with mild compromise of exiting L4 nerve root. Small left paracentral protrusion of L5/S1 disc with calcification contacting left S1 nerve root.”[51]
(My emphasis.)
[51]JCB 46
64This conclusion can be contrasted to the results of the scan undertaken back in 2018 and referred to in paragraph 17 of this judgment.
65On 17 December 2019, the plaintiff again consulted Dr Alaskary. On examination, Dr Alaskary found straight leg raising was restricted to 40 degrees bilaterally and the sciatic stretch test was positive.[52] Dr Alaskary referred the plaintiff to the Northern Hospital for a CT-guided steroid injection of the L4 nerve root on the left. Endep was prescribed. A medical certificate was issued.[53]
[52] JCB 181
[53]JCB 181
66On 18 December 2019, the plaintiff again attended Dr Alaskary. It was recorded that the plaintiff was unable to work due to pain.[54]
[54]JCB 181
67I accept that the clinical findings of Dr Alaskary, and the history provided by the plaintiff, are consistent with the plaintiff’s evidence of suffering a lumber spine injury on 14 December 2019.
Ongoing interaction with the Defendant
68Returning now to the plaintiff’s interaction with his employer. It was Mr Bhargava’s evidence that, in the days after the incident, there was no response by the plaintiff to multiple phone calls made to him seeking information about his medical condition.[55]
[55]T549, L21-23
69Mr Bhargava’s evidence in this regard can be contrasted with the plaintiff’s evidence and materials tendered by him. On 14 December 2019, and the days following, the plaintiff sent numerous text messages to various people at the defendant’s workplace referencing his back injury and inability to work.[56] Firstly, the plaintiff, by text message at 3.57pm on 14 December 2019, advised Mr Sam Daaboul, a supervisor at the defendant’s workplace, that he had ceased work because of a “back problem” and that he was going to the doctor.[57]
[56] JCB 265-271
[57]JCB 270
70Secondly, the plaintiff also sent a text to “Serg”, who the plaintiff described as being another of the bosses at the restaurant. This text was sent at 4.14pm on Saturday, 14 December 2019, advising “I’m sorry search (sic) I can’t work my back a problem”.[58]
[58]JCB 269
71While the plaintiff may not have returned Mr Bhargava’s phone calls in the days immediately following 14 December 2019, the plaintiff clearly did advise people at his work that he could not undertake the evening shift on Saturday, 14 December 2019, and that he was consulting a doctor because of his back problems.
72Further, the plaintiff sent multiple text messages on 15 December 2019 outlining his ongoing back problems.[59]
[59]Plaintiff Exhibits 2 and 3 at JCB 268-271
73I reject the assertions made by Mr Bhargava, and the attacks made on the plaintiff’s credit, that he did not provide advice in respect to his back problems and his attendances on his doctor.
74I also make reference to a meeting between the plaintiff and Mr Bhargava which occurred sometime around 18 December 2019. At this meeting, the plaintiff showed Mr Bhargava a copy of the CT scan which had been undertaken, and there were discussions about the plaintiff’s ongoing back problems and the possibility of going through “legal channels”.[60] It was Mr Bhargava’s evidence that, at the conclusion of this meeting, he followed the plaintiff out of the restaurant and saw him “running away”.[61] The plaintiff denied that he ran away after leaving this meeting.[62]
[60]T550, L21
[61]T550, L31
[62]T554, L13-17
75I do not accept Mr Bhargava’s evidence that the plaintiff ran from the restaurant.
Findings of fact, 14 December 2019
76I accept that:
(a) on the morning of 14 December 2019, the plaintiff commenced work as normal, and was undertaking his normal work duties without impairment;
(b) in the course of his work, the plaintiff bent and lifted a 12.5-kilogram bag of flour from under a table;
(c) in the course of undertaking the lift, the plaintiff suffered an “electrocution sensation”;
(d) subsequent to suffering the “electrocution sensation”, the plaintiff suffered lower back pain and, as the morning progressed, that pain worsened;
(e) by about 12 midday, the pain had become “unbearable”;
(f) as a result of the escalating pain, the plaintiff ceased work and left the workplace;
(g) the plaintiff, by text, advised his work that he was suffering back pain and was consulting a doctor;
(h) at 5.39pm, the plaintiff consulted Dr Alaskary. Dr Alaskary, on examination, found there was limited straight leg raising and that the sciatic stretch test was positive;
(i) the above findings are indicative of nerve root irritation;
(j) the subsequent CT scan revealed an L4-5 disc prolapse.
The medico-legal opinions
77There were two specialists called to give evidence at the hearing: Professor Bittar, neurosurgeon, who had reported on behalf of the plaintiff; and Mr Simm, orthopaedic surgeon, who reported on behalf of the defendant. While both specialists provided medical reports,[63] on the question of whether the plaintiff had suffered injury on 14 December 2019, it was their viva voce evidence which provided the greatest assistance to me.
[63]Professor Bittar at JCB 97-103 and Mr Simm at JCB 124-134
78It is well recognised that medico-legal opinions are, on the whole, only as good as the accuracy of the factual material upon which they are based.[64] That was certainly the case in this matter.
[64]Dordev vCowan & Ors [2006] VSCA 254 at paragraph [14] (per Chernov JA, with Maxwell P and Neave JA agreeing)
79It is in this context that I will move to those parts of the evidence of Professor Bittar and Mr Simm which I found to be of the greatest assistance to me when determining this case.
80Firstly, dealing with Professor Bittar. It was his evidence, when questioned about the events of 14 December 2019:
Q:“What I’m about to put to you – and Mr Paoletti will jump up and object if he things I’m being unfair or overstep the mark, but if we accept that the plaintiff had been working as a pizza maker since May, had received no treatment, there was an incident on 14 December when he was bent lifting a 12.5 kilogram of flour and there is that finding on the CT scan and he has made the complaints that you’ve recorded and you have the finding of a straight leg raise restriction by the general practitioner, what conclusion so you make – what’s your professional opinion in respect to the relevance of all of that in respect to the plaintiff having suffered an injury or not suffered an injury?---
A:I mean I think that he almost certainly sustained an injury. I think the long period of time where there was no treatment sought, no complaints to the GP and he presented to the GP quite frequently for a while up till about 2019, I think we’ve got a significant change on the imaging. We have a change on the imaging which correlates well with his symptoms and with the examination findings. I think you’d have to say there was an injury and you’d have to say that injury was most likely the process at L4/L5. You know, was L5/S1 also involved? It may have been injured but I would be suggesting that the L4/5 foraminal disc prolapse is most likely the cause of that deterioration.”[65]
(sic)
[65]T268, L8 ꟷ T269, L2
81It was Professor Bittar’s opinion that the plaintiff had suffered an L4-5 disc prolapse on 14 December 2019. While Professor Bittar did not rule out the possibility that the L5-S1 disc was also injured, it was his opinion that the L4-5 foraminal disc prolapse was the most likely cause of the plaintiff’s presentation on 14 December 2019.
82Professor Bittar’s evidence was well tested by the defendant. Various scenarios were put to Professor Bittar by Mr Paoletti. Specifically, Mr Paoletti put to Professor Bittar that the plaintiff did not suffer injury on 14 December 2019, but, rather, suffered a flare up of the pre-existing back condition which he had suffered in 2018 and early 2019. Professor Bittar was shown the film of the plaintiff taken in late 2021. Mr Paoletti also put to Professor Bittar that, based on the film and credit issues, the L4-5 disc prolapse did not occur on 14 December 2019. Further, it was suggested that the L4-5 disc prolapse occurred at the time of the 1 November 2018 incident, when the plaintiff was working for “Poultry N More”.
83While Professor Bittar conceded that he could not rule out the L4-5 disc prolapse having occurred at an earlier time, it was his ultimate opinion that the L4-5 disc prolapse, on the balance of probabilities, occurred at the time of the 14 December 2019 incident. It was his evidence:
Q:“What I have to grapple with, Professor Bittar, is this. If that scenario were to be accepted, is it more likely than not that he has suffered an injury in the form of an L4-5 prolapse on or around – on the 14th of December, or is it more likely that he would’ve suffered it for example, as postulated by Mr Paoletti, on the 1st of November, and had had that L4-5 prolapse all the way through for the next 13 months? And in particular, given the findings we referred to of the straight leg raising and the like. On the balance of probabilities, what’s more likely? When is it more likely in your opinion that that prolapse at L4-5 occurred?---
A:Well, I – I think it’s more likely the prolapse occurred when the injury – the incident happened in mid December 2019. I think that his presentation after that – we saw some – not only in my examination of some L4 signs, which would not have been present before; but also during his presentation I think to the Alfred Hospital, it was noted that he – he had some neurological changes consistent with that, from memory.
So I – I think on balance, that’s the more likely scenario. Could it have happened before? Yes, it could’ve happened before. It’s more likely, I think to have happened when he had the lifting – lifting incident. I mean if that had have happened to a significant degree when he presented to his general practitioner after the pallet lifting incident – he appeared to have been getting better a day or so after that, from – from my interpretation of the notes.
So whatever happened then would’ve been unlikely to have been a significant issue, otherwise he wouldn’t have – I don’t think he would’ve gotten better so quickly. I think it’s more likely back then when he lifted the pallet, that it – there was a soft tissue type injury. Whereas his symptoms seemed to persist for a longer period of time after the incident in December 2019.
We started to see some neurological signs that were more consistent with L4-5. So I think on that basis, I’m comfortable that it was more likely that that was the cause of the L4-5 disc prolapse. … .”[66]
[66]T297, L6 ꟷ T298, L14
84Moving to the evidence of Mr Simm. Mr Simm, in his reports, did not accept that the plaintiff had suffered injury on 14 December 2019, or, indeed, at any time in the course of his employment with the defendant.
85In the course of Mr Simm giving his viva voce evidence, significant time was spent undertaking an analysis of the plaintiff’s pre-existing issues and the relevance, or otherwise, of the radiological findings.
86On the issue of whether or not the plaintiff suffered injury on 14 December 2019, Mr Simm was ultimately prepared to accept the possibility that the plaintiff did suffer injury on 14 December 2019. It was his evidence:
HIS HONOUR:
Q:“If we just recap, Mr Simm – the plaintiff has worked as a pizza maker since mid April 2019. He’s had no treatment from the time he started at the pizza shop through to this consultation on the 14th of December. He has the incident as described lifting the bag of flour. There’s the findings on the CT scan of the 16th, which you’ve commented on?---
A:Yes.
Q:And we have this finding of this on straight leg raising limitation - - - ?---
A:Yes.
Q:- - - which you say is indicative of irritation of the sciatic nerve. Putting all those together, what does that tell us; does that tell us that it’s an - what I have to determine in this case is whether the plaintiff - one of the issues I have to determine is whether the plaintiff sustained an injury at work on 14 December?---
A:M’mm. M’mm.
Q:Putting those matters together does it make it more likely than not that he suffered an injury by way of aggravation on that day, or not?---
A:I think putting it all together it probably does suggest that he suffered an injury on that day. That answer is on the understanding that the sequence of events was as you have described it, a lifting incident, an electric shock like feeling, increasingly severe back and leg pain. A visit to the doctor. Positive straight leg raising test. And then a CT scan that did confirm there was disc pathology with the potential to be consistent with his symptoms of back and leg pain.”[67]
(My emphasis.)
[67]T351, L10 ꟷ T352, L6
87When I put to Mr Simm a similar proposition which I had put to Professor Bittar the previous day, Mr Simm agreed, based on that scenario, that he would accept the plaintiff did suffer a lumbar disc injury on 14 December 2019. It was his evidence:
HIS HONOUR:
Q:“… So, the question I’m putting, I will try and put this word for word to what I put to - - - ?---
A:Yes.
Q:- - - Professor Bittar yesterday. So, if we accept the plaintiff had been working as a pizza maker since May, had received no treatment. There was an incident on 14 December when he bent lifting - was bending and lifting a 12.5 kilogram bag of flour. There are the findings on the CT scans and relevantly the MRI scans that we’ve discussed. He’s made the complaints recorded. There’s been findings of the straight leg raising abnormalities on 14 December, and that restriction found by the general practitioner. What’s your professional opinion in respect to the relevance of all of that put together, and the possibility or the probability that the plaintiff had suffered an injury on 14 December as a result of the lifting of the flour?---
A:He suffered an injury. He was predisposed to that injury by changes which had been symptomatic and which were established. These changes rendered him prone to experiencing pain from little or from major trauma, minor or major trauma, so a lifting incident as described could be sufficient to do, as we suggested earlier, disrupt the fibres of the disc and cause it to protrude. I believe on that day if it occurred as you put to me, that he probably suffered a lumbar disc injury in the presence of a compromised lumbar intervertebral disc which caused him pain and contributed to him going to the doctor.”[68]
(My emphasis.)
[68]T361, L11 ꟷ T362, L7
88Moving to the timing of the L4-5 disc prolapse, it was Mr Simm’s evidence:
HIS HONOUR:
Q:“…
… And the second proposition, which isn’t dissimilar but, Mr Paoletti, is found at court book, sorry, transcript 297. And I pre-empted what I have to grapple with, Mr Simm, is this, that if that scenario is accepted is it more likely than not that he suffered an injury in the form of a L4/5 prolapse on or around 14 December as opposed to have suffered an L4/5 prolapse at an earlier time, perhaps back in 2018 and Mr Paoletti had suggested perhaps the lifting of the pallet incident back on 1 November.
Given that he had worked as the pizza maker from April 2019 through to 14 December, on the balance of probabilities when do you think the L4/5 disc prolapse occurred?---
A:Well, I have no idea. As I said earlier, it may have been present but not interpreted on the original CT scan in March 2018. It was evident on both the CT scan and the MRI scan after he had the exacerbation of pain in December 2019 but that doesn’t mean that it necessarily relates to that particular date but it would seem that it wasn’t present before he commenced employment with the employer. It was reported after his period of employment and after he presented with back pain and it would be reasonable to conclude that that pathological process of protrusion of the L4/5 disc on the left occurred somewhere during that period of employment and possibly as a result of the lifting strain.”[69]
[69]T362, L8 ꟷ T363, L3
89For completeness, I accept that Mr Simm continued to maintain that if the incident of the lifting of the 12.5-kilogram bag of flour had not in fact occurred on 14 December 2019, then the employment did not lead to injury on that date, and the plaintiff’s complaint of lower back and left leg pain on 14 December 2019 would have been due to pre-existing back issues.[70]
[70]T374, L4-7
Did the Plaintiff suffer a lumbar spine injury on 14 December 2019?
90Based on the whole of the objective evidence, I accept that the plaintiff did suffer a lumbar spine injury on 14 December 2019 at the time he lifted the 12.5-kilogram bag of flour.
91I find that the lumbar spine injury included a disruption of the fibres of the L4-5 disc, with a consequential protrusion.
92I accept that, by reason of the lumbar spine injury suffered on 14 December 2019, the plaintiff was incapacitated for work from 15 December 2019.
93I now move to the question of the plaintiff’s ongoing incapacity.
The Plaintiff’s ongoing treatment and presentation in January 2020 and February 2020
94On 13 January 2020, the plaintiff first consulted Dr Yaraghi at the Epping Clinic. On that date, Dr Yaraghi obtained a history:
“low back pain and radiculopathy onto left leg for a bout 1 month
stating that it happened at work.
mild disc protrusion L4-5 and L5-s1
Examination:
positive SLR left side o 20 degreepositive slump left side”[71]
(sic)
[71]JCB 180
95On 15 January 2020, the plaintiff again consulted Dr Yaraghi. On 23 January 2020, Dr Yaraghi recorded:
“Examination:
Unable to bend over
positive slump and SLR in left side
Antagesic gait
Reason for contact:
Back ache
radiculopathy onto left gluteal area and numbness in toesL4 and S1 nerve compression on CT.”[72]
(sic)
[72]JCB 180
96On this occasion, Dr Yaraghi also noted:
“He also has anger, short temper, nervousness.”[73]
[73]JCB 180
97On 23 January 2020, Dr Yaraghi referred the plaintiff to Mr Farzin Shaykhi, clinical psychologist.
98On 23 January 2020, the plaintiff presented at the Emergency Department of the Northern Hospital at 16:11 hours.[74] On this occasion, on examination it was recorded the plaintiff was suffering “significant pain”[75] on a history of presenting complaint that “injury at work last month, was lifting a sack of flour and had sudden onset of pain”.[76]
[74]JCB 80-82
[75]JCB 81
[76]JCB 80
99On 28 January 2020, Dr Yaraghi recorded:
“History:
Psych: Poor sleep. Early morning wakening. Low self esteem. Irrational fear …
…
feels down, social withdrawal, isolationangedonia.”[77]
(sic)
[77]JCB 179
100On 3 February 2020, the plaintiff underwent a CT-guided injection of Dexamethasone and Xylocaine infusion into the left nerve root.[78] This was undertaken at Healthcare Imaging Bundoora.
[78]JCB 49
101On 5 February 2020, the plaintiff was admitted to The Alfred hospital. He remained an inpatient at The Alfred hospital until 14 February 2020. An MRI scan undertaken 6 February 2020 confirmed a “small left L4-5 foraminal/far lateral disc protrusion, without narrowing of the left neural exist foramen” and also a “small posterior annular fissure at L5-S1. Minimal left foraminal disc bulge at L5-S1.”[79] The MRI scan concluded that the small protrusion was causing minor contact on the left L5 nerve root in the subarticular recess.[80]
[79]JCB 50
[80]JCB 50
102On 13 February 2020, the plaintiff underwent a CT nerve root injection into the left L5 neural exit foramen.[81]
[81]JCB 52
103I accept that, throughout January and February 2020, the plaintiff continued to suffer the consequences of the work-related lumbar spine injury. I accept that the medical treatment which the plaintiff received in this period is consequential to his work-related spine injury.
The Plaintiff’s psychiatric injury
104Having accepted that the plaintiff did suffer an injury to his lumbar spine on 14 December 2019, I now move on to my assessment of whether or not the plaintiff suffered a work-related psychiatric injury.
Mr Farzin Shaykhi, clinical psychologist
105In February 2020, the plaintiff was referred to, and first consulted, Mr Shaykhi.
106Mr Shaykhi provided a report dated 21 August 2021.[82] Mr Shaykhi reported, at the time of the initial consultations, the plaintiff was suffering with symptoms of depression and anxiety, including anhedonia, severe low mood, poor motivation, feeling irritable and empty, suicidal ideation, frustration, anger/emotional outbursts, extremely poor sleep and social withdrawal, as well as excessive worry, restlessness and anxiety, along with panic attacks, accompanied by cognitive changes.[83] Mr Shaykhi concluded the plaintiff’s psychological injury was linked to his lower back symptoms and the workplace incident.
[82]JCB 62
[83]JCB 67
107Of particular concern to me is the 12 March 2020 consultation. On this day, the plaintiff attended at Mr Shaykhi’s rooms an hour early. Mr Shaykhi noted that the plaintiff was extremely frustrated with his situation and was increasingly experiencing suicidal thoughts and risk taking behaviours.
108The plaintiff, since this time, has continued to consult Mr Shaykhi on a regular basis.
Dr Sam Asadi, psychiatrist
109On 27 May 2020, the plaintiff first consulted Dr Asadi, at the referral of Dr Yaraghi. Dr Asadi has provided a report dated 23 August 2021.[84]
[84]JCB 112
110On 27 May 2020, Dr Asadi obtained a history from the plaintiff that he had been suffering from psychological problems since the time of his back injury in December 2019, while lifting a sack of flour.[85] Dr Asadi obtained a history of psychological distress, including pre-occupation with negative thoughts, the feeling of being useless, worthless and hopeless, panic attacks, supressed mood, anxiety and irritability. Dr Asadi made a diagnosis of Adjustment Disorder with Mixed Anxiety and Depressed Mood, secondary to a work-related injury and chronic back pain.[86]
[85]JCB 114
[86]JCB 115
111Dr Asadi consulted the plaintiff again on 25 June 2020, 23 April 2021 and 25 June 2021 (noting that the plaintiff continued to consult Mr Shaykhi). At the time of the provision of his report, Dr Asadi concluded that the plaintiff was unfit for work by reason of his psychological condition, which was secondary to his work-related injury.
Did the Plaintiff develop a secondary psychiatric injury?
112I accept that the plaintiff, secondary to his lumbar spine injury, did develop a psychiatric injury. I accept that the plaintiff was suffering from this psychiatric injury no later than March 2020. I accept the opinions of Mr Shaykhi and Dr Asadi. I accept the diagnosis of Dr Asadi made in May 2020 that the plaintiff was suffering an Adjustment Disorder with Mixed Anxiety and Depressed Mood. I also accept Mr Shaykhi’s history that the plaintiff was suffering suicidal ideation, depression and anxiety and irritability, along with panic attacks and cognitive change.
Rejection of the WorkCover claim
113In April 2020, the plaintiff received, from the defendant’s authorised insurer, the notice rejecting his worker’s compensation claim. The rejection notice dated 23 April 2020[87] referred to, extensively, a circumstance investigation report provided by the Macil Group Pty Ltd (“Macil Group”). The notice contained a number of allegations of fact and assertions which were adverse to the plaintiff. A number of these adverse facts and assertions ultimately proved to be incorrect. The plaintiff, not unsurprisingly, found the contents of this notice very distressing.
[87]JCB 38-42
The Plaintiff’s ongoing treatment and his use of crutches
114In June 2020, the plaintiff was an inpatient at the Broadmeadows Rehabilitation Hospital for approximately three weeks.[88]
[88]JCB 170
115On 16 July 2020, Dr Yaraghi noted that the plaintiff was using crutches.[89]
[89]JCB 168
116Throughout 2020, the plaintiff continued to consult Dr Yaraghi and Mr Shaykhi, and had a further consultation with Dr Asadi. On 23 December 2020, the plaintiff was again noted by Dr Yaraghi to be using crutches.[90] On that day, Dr Yaraghi noted that neurological examination was difficult due to pain levels.
[90]JCB 161
117On 4 January 2021, Dr Yaraghi again made reference in his clinical notes to the plaintiff’s use of crutches. On this occasion, he noted “fear avoidance behaviour”.[91] The use of crutches was a regular entry in Dr Yaraghi’s clinical records in early 2021. Indeed, in his viva voce evidence, Dr Yaraghi confirmed that, throughout 2021, the plaintiff presented to his clinic “almost all the time with the crutches”.[92]
[91]JCB 160
[92]T436, L7-8
The film
118Surveillance videos dated 4 August 2021, 31 August 2021 and 10 November 2021 were tendered by the defendant.[93] Put simply, the video of 4 August 2021 showed the plaintiff using a crutch and moving in a restricted manner. The video of 31 August 2021 showed the plaintiff walking through a carpark. The video of 10 November 2021 showed the plaintiff attending a service station, getting into his car and driving. The view of the plaintiff for a large portion of this video was obstructed. In the latter two videos, the plaintiff was not using crutches. I accept that the plaintiff’s presentation in the latter two videos was quite different to that of 4 August 2021 and his presentation to Dr Yaraghi over a period of about twelve months.
[93]Exhibit “D”
119The plaintiff was shown the videos and cross-examined about the contents. The plaintiff sought to explain the discrepancies in his presentation by reason of the fluctuating nature of his lumbar spine injury and his use of medication.[94] While I accept there may be variability in pain and impairment from day to day or week to week, and by reason of the use of painkilling medication, I am not persuaded that this provides a complete answer. Firstly, there was a very significant discrepancy between the plaintiff’s presentation on 4 August 2021 to that of 31 August 2021, which is a relatively short period of time. Secondly, I note the plaintiff’s consistent presentation to Dr Yaraghi using crutches.
[94]T226, L2-7
120The film was provided to Mr Simm and Dr Timothy Entwisle, psychiatrist, who assessed the plaintiff on behalf of the defendant. Both provided supplementary reports.
121I find Mr Simm’s observations in response to the film, in the context of this case, helpful. Mr Simm reported that the plaintiff, at the time of his assessment in May 2021, presented with “quite extreme illness and pain behaviour”.[95]
[95]JCB 134
122Having viewed the film, Mr Simm suggested that the plaintiff was greatly amplifying his pain and disability when undergoing formal assessment for his claimed injury.[96] I accept the plaintiff was amplifying his pain. Mr Simm went on to state:
“Claimants such as this are their own worst enemies. This man may have a legitimate ongoing complaint of underlying organically based pain, but he does not trust the system and finds it necessary to present in an extreme and unconvincing manner.”[97]
(My emphasis.)
[96]JCB 134
[97]JCB 134
123I will come back to Mr Simm’s observations and specific comments in respect to the plaintiff’s trust of the system later in this judgment.
124Referring now to Dr Entwisle. On 4 August 2021, Dr Entwisle assessed the plaintiff on behalf of the defendant. In his first report of 9 August 2021, Dr Entwisle diagnosed the plaintiff as suffering from an Adjustment Disorder with Depressed and Anxious Mood.[98] In this initial report, Dr Entwisle qualified his opinion in respect to the work relationship. Dr Entwisle noted the rejection of the plaintiff’s WorkCover claim, having been provided with the materials in this regard. Dr Entwisle concluded that the employment was a significant contributing factor to the plaintiff’s mental injury, should it be accepted the plaintiff suffered a workplace injury.[99]
[98]JCB 141
[99]JCB 141
125After seeing the film, Dr Entwisle noted that the film was inconsistent with the plaintiff’s presentation and that his use of the crutch put into issue the work relatedness of the plaintiff’s psychiatric condition.[100]
[100]JCB 143
126In the course of the trial, the video surveillance was shown to both Professor Bittar and Dr Yaraghi.
127Dr Yaraghi agreed with the defendant’s proposition that the plaintiff was amplifying his pain and disability.[101]
[101]T431, L14-17
128Professor Bittar also agreed with the proposition that the plaintiff had amplified his pain and disability.[102]
[102]T294, L19-22
129It was in the context of the video surveillance that Mr Paoletti put to Professor Bittar it was a possibility that the employment with the defendant was not a significant contributing factor to the plaintiff’s lower back injury. Professor Bittar conceded that was a possibility.[103] However, Professor Bittar, later in his evidence, maintained that the plaintiff had suffered a lumbar spine injury on 14 December 2019 and, in particular, an L4-5 disc prolapse.[104]
[103]T295, L5-12
[104]T297, L6 – T298, L14
130The pain amplification which the various doctors, and indeed the Court, accepts the plaintiff as displaying, must be put into context.
131As set out earlier in this judgment, I do accept that the plaintiff suffered a lumbar spine injury as a result of the 14 December 2019 work incident. In particular, an L4-5 disc prolapse.
132I accept that the plaintiff, by reason of the level of pain which he was suffering, underwent a series of nerve root injections and was an inpatient at The Alfred hospital and the Broadmeadows Hospital.
133I also accept that the plaintiff developed a psychiatric condition which was secondary to his work-related lumbar injury. This psychiatric condition had developed prior to the service of the rejection notice by the authorised insurer. I accept that, prior to the service of that notice, the plaintiff was displaying a range of florid psychiatric symptoms, including suicidal ideation.
134Thus, prior to being notified that his claim had been rejected, the plaintiff had been hospitalised, undergone a series of nerve root injections, and was receiving psychological treatment for what were significant psychiatric symptoms.
135It is in this context that the plaintiff received the rejection notice, which was based on the circumstance investigation report. No medico-legal assessments had been organised, nor any medical materials or reports were received at the date of the rejection of the claim. This notice did, however, reference various materials and statements which I have found to be untrue. The authorised insurer determined that the plaintiff did not suffer any diagnosable back or psychological condition based on the circumstance investigation report completed by the Macil Group.
136I accept Mr Simm’s analysis that the plaintiff, by the time Mr Simm assessed him, did not trust the system. This is not unsurprising given the contents of the rejection notice and my findings in respect to fact and injury. It is in this context that the plaintiff presented in an extreme and, to an experienced medico-legal assessor, unconvincing manner. I also note such observations are consistent with the notations Dr Yaraghi made and recorded in his clinical records prior to the film surveillance being undertaken.
How significant is the finding that the Plaintiff amplified his symptoms?
137I accept that the plaintiff, between mid 2020 and August 2021, did display pain amplification and exaggerated his symptoms.
138Does this finding necessitate a conclusion by the Court that, by August 2021 and/or November 2021, the plaintiff had recovered from the lumbar spine injury and/or the psychiatric injury which I have previously found he suffered by reason of his employment, and/or was the plaintiff in fact fit for work?
139It is appropriate, at this time, that I record my observations and assessment of the plaintiff when he gave his oral evidence. Such observations are, of course, made in the context of the plaintiff being a self-represented litigant, who was not only a witness in the hearing, but was also undertaking the role of advocate.
140I observed the plaintiff giving his evidence and being cross-examined over the course of 17, 18 and 19 May 2022. I conclude that, in general terms, the plaintiff gave his evidence in a straightforward manner. If criticism can be made of the plaintiff, it was that he was keen to ensure that the Court was not left in doubt about his ongoing pain, restriction, and distress. However, I did not form the view that his presentation or evidence was so excessive or exaggerated to be unreliable. Rather, it highlighted his blending of the role of witness and advocate.
141I have formed the view that the impact to the plaintiff of his lower back injury which he sustained on 14 December 2019 has been profound. He lost his ability to work in the job which he had undertaken for eight months. He lost his capacity to support himself. He was suffering significant pain.
142I accept the plaintiff’s psychiatric distress as genuine.
143I accept that the plaintiff’s psychiatric injury has impacted upon his judgement and the way he has presented to doctors.
144While not condoning the plaintiff’s presentation to his general practitioner, Dr Yaraghi, and at the time of the video surveillance in August 2021 and to the medico-legal assessors, I accept that the plaintiff’s pain amplification occurred in circumstances where he was suffering a significant psychiatric condition and had no trust for the process.
145I adopt Mr Simm’s observations that, in the circumstances, where the plaintiff did not trust the system, he found it necessary to present in an extreme and unconvincing manner.
What are the Court’s conclusions, having considered the film and objective evidence?
146The question remains, just what significance do I place on the film? As I have already noted, the film shows the plaintiff walking, getting in and out of a car, and driving. The film does not show the plaintiff engaged in strenuous activities.
147It was submitted by the defendant in closing submissions that, while the surveillance footage did not depict the plaintiff undertaking tasks such as skydiving, lifting a 100-kilogram object or “a box of something”,[105] the film was significant in the context of its impact on the medical witnesses and their conclusions.
[105]T688, L28 ꟷ T689, L5
148Indeed, it was conceded by Professor Bittar and Dr Yaraghi that the film was inconsistent with the plaintiff’s presentation and did cast doubt in respect to the nature and extent of the plaintiff’s injuries.
149The defendant submitted that the film established:
(a) that the Court should not accept the plaintiff’s version of events;
(b) the plaintiff did not suffer injury in the course of his employment with the defendant on 14 December 2019;
(c) any worsening of the plaintiff’s spinal condition on 14 December 2019 was due to a pre-existing condition;
(d) the plaintiff did not suffer a work-related psychiatric condition; and
(e) that by August 2021, the plaintiff had recovered from any injury suffered on 14 December 2019.
150The issues raised by the defendant have merit.
151However, I conclude that the film is not fatal to the plaintiff’s case. I reach this conclusion because:
(a) The film shows the plaintiff undertaking activities which I find are not inconsistent with him suffering from an organic lower back injury and/or psychiatric injury;
(b) I accept Mr Simm’s summation that the plaintiff may have a legitimate ongoing complaint of underlying organically-based pain, but does not trust the system, and found it necessary to present in an extreme and unconvincing manner;
(c) I accept that, on 14 December 2019, the plaintiff suffered an organic lumbar spine injury and, in particular, an L4-5 disc prolapse;
(d) I accept that, by March 2020, the plaintiff had developed a psychiatric illness which was related to his lumbar spine injury. That illness was of significant consequence and impacted on the plaintiff’s judgement and behaviour;
(e) The film, in itself, is not inconsistent with the plaintiff suffering:
(i)an ongoing lumbar spine injury;
(ii)an L4-5 disc prolapse;
(iii)ongoing psychiatric illness;
(f) The film, of itself, does not establish that the plaintiff has recovered from either the lumbar spine injury, or his psychiatric injury, but rather shows him undertaking normal day-to-day activities which are not inconsistent with injury (although they are inconsistent with the plaintiff’s presentation to his doctors using a crutch).
152I do not accept the defendant’s submission that by August 2021 and/or November 2021, the plaintiff had recovered from his work-related injury and/or was fit for work.
Does the Plaintiff continue to suffer work-related injury and incapacity?
153The most recent medical report adduced in evidence was from the plaintiff’s treating psychologist, Mr Shaykhi, of 7 April 2022. It was Mr Shaykhi’s assessment and opinion, at that time, that the plaintiff continued to suffer a Major Depressive Disorder and Generalised Anxiety Disorder with panic attacks. It was Mr Shaykhi’s opinion that the plaintiff required ongoing psychological support, together with psychiatric review, to monitor his medication and condition. In respect to work, it was Mr Shaykhi’s evidence:
“… [The plaintiff] is in my opinion currently not fit for pre-injury duties; however, he is determined to work towards returning to work and to exploring possible alternative duties despite the limited range of options that would appear to be available to him.”[106]
[106]JCB 68
154I accept that the plaintiff continues to suffer a work-related psychiatric condition which impacts upon his capacity for work.
155In respect to the plaintiff’s lower back injury, I am reliant, to a significant degree, upon the plaintiff’s evidence in respect to the ongoing state of his pain, symptoms and capacity. Regrettably, there were no updated medical reports adduced in evidence one way or the other. The defendant invited me to draw an adverse inference in this regard. In the circumstances where a party has legal representation, such a submission would have a level of attraction. However, the plaintiff is a self-represented litigant, and there were, despite his best efforts, Mr Webb’s best efforts, and indeed the cooperation provided by the defendant’s solicitors, difficulties in the way the matter proceeded at hearing.
156As previously noted, I had the benefit of observing the plaintiff giving evidence over three days and being thoroughly tested in cross-examination. My observations of the plaintiff’s presentation, in the context of the medical evidence, and my findings already referred to in the course of this judgment, lead me to conclude that the plaintiff does presently continue to suffer ongoing lower back pain and restriction, and referred left leg pain. I accept that he has suffered such lower back pain and restriction and referred left leg pain since 14 December 2019, and I accept the injury which occurred at work on that day continues to be a significant contributing factor to the plaintiff’s presentation.
Summary of findings
157I summarise my findings in this manner.
Pre-existing back condition
158I accept that prior to commencing work with the defendant, the plaintiff had suffered a lower back condition with referred left leg pain.
159This pre-existing back condition was variable in nature. There were times when it “flared up” and the plaintiff suffered pain and restriction. However, the condition would settle and the plaintiff was able to undertake work.
160It is important to note that between 3 November 2018 and 14 December 2019, the plaintiff had only one medical consultation for his lower back condition. That was on 4 April 2019. On that day, he had symptoms.
Work with the Defendant
161I accept that between starting work with the defendant in the week ending 14 April 2019 and October 2019, the plaintiff had no lower back pain or restriction. In this period, the plaintiff was undertaking work which was moderately physically demanding.
162Between October 2019 and 14 December 2019, the plaintiff suffered some intermittent low-grade back ache which had settled by 14 December 2019.
163I accept, as a part of his work duties, the plaintiff was required, from time to time, to lift 12.5‑kilogram bags of flour, which were stored under a table.
164I accept that, prior to 14 December 2019, the plaintiff:
(a) “loved” his job;
(b) had a sense of purpose in life and was earning, to him, good money;
(c) was not suffering any psychiatric injury.
The events of 14 December 2019
165I accept that, on 14 December 2019, when the plaintiff commenced work, he was not suffering lower back pain and was undertaking his normal duties in an unrestricted manner.
166I find, on 14 December 2019, the plaintiff lifted a 12.5-kilogram bag of flour. While undertaking this lift, the plaintiff suffered an “electrocution sensation”.
167I accept that, at this time, the plaintiff sustained injury to the structures of his lumbar spine.
168I accept that, subsequent to this incident, while the plaintiff endeavoured to continue work, his lower back pain progressively worsened until it became “unbearable”. At, or about midday, the plaintiff ceased work and left the restaurant.
169Later, on 14 December 2019, the plaintiff attended Dr Alaskary. At the time of this consultation, the plaintiff’s straight leg raising was reduced and there was a positive stretch test. This was consistent with nerve irritation.
Did the Plaintiff sustain injury on 14 December 2019?
170Having considered all of the objective evidence and, in particular, the evidence of the plaintiff, Dr Alaskary, Professor Bittar and Mr Simm, I accept that the plaintiff did suffer injury to his lumbar spine on 14 December 2019.
171I accept that the plaintiff’s employment was a significant contributing factor to the lumbar spine injury which the plaintiff suffered on 14 December 2019. In particular, I find the plaintiff’s employment was a significant contributing factor to the development of the L4-5 disc prolapse and nerve root compression.
Incapacity for work
172I accept that, by reason of the plaintiff’s lower back injury, he was incapacitated for work from 14 December 2019.
Psychiatric injury
173I accept that by February/March 2020, the plaintiff was becoming increasingly psychiatrically distressed. I accept that by 12 March 2020, the plaintiff had developed a diagnosable psychiatric injury which was secondary to the plaintiff’s lower back injury.
174I accept that the lumbar spine injury suffered by the plaintiff on 14 December 2019 was a significant contributing factor to the development the plaintiff’s psychiatric injury.
Pain amplification
175I find that the combination of the plaintiff’s ongoing pain and restriction flowing from his lumbar spine injury, the nature and extent of the plaintiff’s psychiatric injury, and the plaintiff’s lack of trust for the system, all contributed to the development of the plaintiff’s pain amplification.
The film
176I accept there was a discrepancy between the video surveillance and the plaintiff’s presentation to doctors, particularly in respect to his use of a crutch. In this regard, I accept Mr Simm’s analysis referred to in paragraph 121 of this judgment.
177I do not accept that, by reason of the film, I should conclude that the plaintiff did not suffer an organic lumbar spine injury on 14 December 2019 and/or a psychiatric injury.
178I note that the film does not show the plaintiff doing more than walking, getting in and out of a car, and driving. I do not find these activities inconsistent with the plaintiff suffering an ongoing lumbar spine injury and/or ongoing psychiatric injury.
Current state of the Plaintiff’s injuries
179I accept that the plaintiff continues to suffer lower back pain and restriction and ongoing left leg pain. I accept that the lumbar spine injury which the plaintiff sustained on 14 December 2019 was, and still is, a significant contributing factor to the plaintiff’s lower back pain and restriction, and referred left leg pain.
180I accept that the plaintiff continues to suffer psychiatric injury. I accept, in particular, the opinion of Mr Shaykhi. I accept the plaintiff’s psychiatric state is secondary to the plaintiff’s lumbar spine injury, and that the work injury was, and continues to be, a significant contributing factor.
181I accept that, by reason of the plaintiff’s lower back lumbar spine injury and/or psychiatric injury, the plaintiff continues to have an incapacity for work.
Conclusion
182Having considered all of the objective evidence, I find that the plaintiff did suffer a lumbar spine injury on 14 December 2019, and developed a secondary psychiatric injury.
183I find that the plaintiff’s injuries have incapacitated him since 14 December 2019. That incapacity for work continues.
184I propose to make orders order that the plaintiff be paid weekly payments of compensation from 15 December 2019 to date, and to continue, in accordance with law. Further, that the defendant pay reasonable medical and like expenses.
185I shall hear from the parties in respect to the form of the orders and costs.
Orders of the Court
(1)The defendant pay the plaintiff weekly payments of compensation at the applicable rate from 15 December 2019 to date, and to continue in accordance with the Workplace Injury Rehabilitation and Compensation Act 2013.
(2)The defendant pay the plaintiff reasonable medical and like expenses from 15 December 2019 to date, and to continue in accordance with Workplace Injury Rehabilitation and Compensation Act 2013.
(3)The defendant pay the plaintiff’s costs in the proceeding on Magistrates’ Court of Victoria scale “G”, to be taxed by the Cost Court in default of agreement.
(4)The proceeding is otherwise dismissed.
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