Oroomieh v Victorian WorkCover Authority
[2023] VCC 2105
•20 November 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-23-00797
| BAHMAN OROOMIEH | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 and 13 September 2023 | |
DATE OF JUDGMENT: | 20 November 2023 | |
CASE MAY BE CITED AS: | Oroomieh v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2105 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – spinal impairment – causation – psychiatric impairment – pain and suffering only – range
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s335(2)(d)
Cases Cited:Mobilio v Balliotis [1998] 3 VR 833; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326; Peak Engineering & Anor v McKenzie [2014] VSCA 67; Dwyer v Calco [2008] VSCA 260; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Georgopoulos v Silaforts Painting Pty Ltd [2012] VSCA 179
Judgment: Leave granted to bring proceedings for damages for pain and suffering.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Angenent | Zaparas Lawyers |
| For the Defendant | Mr P Bourke | IDP Lawyers |
HER HONOUR:
Preliminary
1This is an application for leave to bring proceedings for damages pursuant to s335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) for injury suffered by the plaintiff in the course of his employment with DK Transport (Vic) Pty Ltd (“the employer”) from December 2016 to September 2018 (“the said period”).[1]
[1] Originating Motion dated 27 February 2023
2The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.
3The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s325(1) of the Act. There, “serious injury” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4The body function relied upon in this application is the spine.
5Section 325(2)(h) requires all psychological consequences to be ignored in determining the plaintiff’s application in relation to the physical impairment.
6The plaintiff also brings this application pursuant to clause (c) of the definition of “serious injury” for a psychiatric impairment, including development of anxiety and/or depression.
7Apart from being a serious injury, the injury must have arisen on or after 20 October 1999, before the plaintiff is entitled to recover damages.
8The impairment of the body function must be permanent.
9The plaintiff bears an overall burden of proof upon the balance of probabilities.
10By s325(1)(c) of the Act, the impairment must have consequences in relation to pain and suffering which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant or marked”.
11I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
12The judgment of the Court of Appeal in Mobilio v Balliotis & Ors[2] resolved the meaning of “severe”. Brooking JA, without suggesting the use of any particular adjective to mark the distinction, said that “severe” was used in the definition as a stronger word than “serious”.
[2] [1998] 3 VR 833, Winneke P agreed at 835
13I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak,[3] Haden Engineering Pty Ltd v McKinnon[4] and Ellis Management Services Pty Ltd v Taylor[5] in reaching my conclusions.
[3] (2005) 14 VR 622
[4] (2010) 31 VR 1 (“Haden Engineering”)
[5] [2013] VSCA 326 (“Ellis Management”)
14The plaintiff relied upon two affidavits, and he was cross-examined. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
15The plaintiff did not formally abandon his application under clause (c) but focussed on the physical impairment.[6]
[6] Transcript (“T”) 3
16The defendant’s case in relation to the clause (a) application was that any aggravation of cervical and or lumbar spondylosis from the work injury had ceased.[7] While the plaintiff might not be able to do heavy work, it was because of his degenerative condition. In any event, any impairment was mild.[8]
[7] T2, T111
[8] T120
Plaintiff’s evidence
17The plaintiff is presently aged forty-one, having been born in Iran in May 1982. After completing Year 12, he worked for about ten years as an air conditioning mechanic. .
18He went to Turkey in 2010 because he felt it was unsafe for him to remain in Iran.[9] While there, he had varicose vein surgery in 2011. It was not a success, and he has experienced altered sensation in his left thigh since, the nature of which has not changed.[10]
[9] T3
[10]T15, T25
19He migrated to Australia in 2012 and commenced employment with City Discount Tyres in October that year as a tyre fitter. The work was very physically demanding and particularly hard on his neck. He felt aches and pains from time to time, but simply worked through them. Since 2015, he has had pain because of this work.[11]
[11]T16
20Things changed significantly in 2016, when Daniel Loy purchased the business, and its name was changed to Kingsbury Tyre and Auto.
21After that time, the plaintiff felt significantly increasing neck and back pain. The neck pain radiated down between his shoulder blades, usually worse on the right, and sometimes all the way to his hands, usually the right.
22He also developed low back pain, which radiated from that area into the back of his thighs. He had some numbness in his toes.
23He received chiropractic treatment, and tried Voltaren and Nurofen, although the latter upset his stomach,[12] leading to the need for a gastroscopy.[13] He was taking Nurofen Plus in 2016 for his spinal pain, not his varicose veins.[14] After then, he just took normal Nurofen.[15]
[12]T21
[13]T27
[14]T24
[15] T27
24He continued to complain to Mr Loy and his father about his problems at work, but nothing was done. He often came home from work in a lot of pain and needed to rest so that he could continue working.
25In February 2016, he had neck and back pain, and also stomach pain and Major Depression. He had been admitted in a psychiatric ward but he could not remember when.[16]
[16]T19; Dr Habibian’s 12 February 2016 clinical note
26He did not report pain to his general practitioner (“GP”) Dr Habibian every time he had it.[17] Any time he told doctors he had spinal pain, they would say “well, change your job”.[18]
[17]T67
[18]T28
27The opiate addiction noted by Dr Habibian when he first saw the plaintiff in May 2015 was previous opium smoking in Turkey.[19]
[19]T30
28He took opium for ten months to July 2018 for pain relief. He did not mention this in his affidavits because his solicitors did not ask him. He took it in tablet form which he got from his friends.[20] In July 2018, he opened up to his GP about this issue.[21]
[20]T18
[21]T29
29He was worried and depressed at the end of 2018 because he told his wife of his opium problem. He was referred to The Talk Shop psychologists but did not attend.[22]
[22]T26
30He agreed he was not prescribed painkillers and did not see his GP for spinal pain between January and October 2018.[23]
[23]T35
Cessation of employment
31In September 2018, he had an altercation with Mr Loy’s father, who told him to “fuck off”. It was clear to the plaintiff that he was no longer wanted, and it was equally clear to him that pressing on at work was only making his neck and back worse. Despite going off work, his spinal pain did not get any better.
32As at October 2022,[24] neck pain interfered with activities such as driving. He had lost some movement of his neck and head. The pain was constant and burning and he also felt some weakness in his right arm with numbness in his index finger and thumb. He had sharp low back pain. It fluctuated with activity and still shot down the back of his legs and feet and could be very strong.
[24] Plaintiff’s first affidavit
33He had difficulties from a mental perspective about how his bosses treated him at work, and he was often anxious. He became depressed as a result of constant pain and even had suicidal ideas. His marriage fell apart in late 2020 and his wife and children left him.
34In March 2021, he was referred to Dr Shaykhi for counselling. He attended sessions until January 2022, mostly in relation to marital problems.[25]
[25]T44
35In June 2021, he was referred to Northern Spinal but did not attend. This was not because he could cope with his pain. He remembered he “missed an x-ray or something”. He had not had more physiotherapy in the past because all physiotherapy involved was shrugging his shoulders and it did not help much.[26]
[26]T46
36He did not see his GP for spinal pain from June 2021 to March 2022 because he was working.[27] When asked why he did not report pain when he saw Dr Habibian at various times, he asked, “How many times do I have to report that?”[28] He is not “kid to each time I’m going to doctors, I say ‘I’ve got pain. I’ve got pain. I’ve got pain.’ What do they want to say?” (sic)[29]
[27] T49
[28]T45
[29]T67
37He does not go to the doctor when he has pain from work because he does not cry all the time. He does not go crying to the doctor.[30] There is no point complaining about back pain.[31]
[30]T58
[31]T60
38As at October 2022, he was taking antidepressants and painkillers, Nurofen, Advil, Tramadol and Endone. He tried to limit use of Endone because it was very strong and he usually took it about three times a week.
39In cross-examination, he was confused about what medication was being prescribed in October 2022.[32]
[32]T31
40He only got one script of Endone and that was from a lady doctor in August 2019. During 2022, he got some Endone tablets from a friend’s wife. Dr Habibian told him not to take Tramadol that had been prescribed by Dr Baglar in August 2020.[33]
[33] T40
41He has been attending Narcotics Anonymous for counselling for alcohol and drug addiction since his wife left.[34]
[34]T41
Work
42While he deposed he did some Uber driving for a couple of months from late 2019, he had actually been working as an Uber driver from early 2018.[35] He felt that driving significantly flared-up his neck pain. Turning his head in the traffic became painful, and prolonged sitting also did not help his low back. The pain was so bad, he had to give that work away, which was very hard because he needed the money.
[35]T61
43Later, he realised he was going to struggle greatly to find work with his spinal injury, therefore he managed to create a new source of income doing some painting on a self-employed basis.
44He started his business in October 2020, using a website called Hi Pages, and he employed a couple of painters. He was mainly involved in the quoting work administration. He also did painting on lower levels where he did not have to reach up very much.
45He has not recovered from his spinal injuries and continues to have ongoing pain on a daily basis and has had to adapt his life to live with his pain and restrictions.[36]
[36] Plaintiff’s second affidavit
46He continues painting work as a contractor. He is usually hopeful for work five days a week but sometimes there is no work.
47Other labourers have worked for him, with one regular worker. He can do the smaller jobs. He does not take on ceiling work as it is too difficult.
48This contract work is physically unsuitable for him because many aspects of the work cause him increased pain. Even though he tries to be careful, he needs to work, and painting can put a real strain on his spine, especially if he does not take breaks. It is not really good work for him. However, his English is not great, and he has to do labouring work.
49He has particular problems with carrying tins of paint. His lifting capacity varies. He can carry 4-litre tins of paint in and out of his vehicle to jobs. Once, he had to unload a 10-litre tin, both in and out of the work vehicle, and then pour it into the paint trays.
50He presently works with pain. Sometimes he has no choice, “If I have to reach and I couldn’t borrow anyone I have to do something with my – for myself”.[37]
[37] T50
51Initially, he had a partner, Matt. His partner did not have a visa and had now gone to New Zealand. He did not mention his partner in his affidavits because he was scared his partner was not paying tax.[38] He started employing two other workers about four months ago.[39]
[38]T51
[39]T52
52He agreed in the first couple of years the business’s profit and loss statements made no mention of wages. He paid Matt out of the other receipts for the business – “It’s cash flow … if I’ve got any small amount that’s all I keep them for him – always like that I have been working like that.”[40]
[40]T57
53He works five hours and then goes home in the middle of the day.[41] He accepted testimonials had been posted on ‘Oneflare Airtasker’ commenting on how well his business was operating.[42]He agreed he told Dr Ingram earlier this year that the business was going well.[43]
[41]T59
[42]T69
[43]T55
Current condition
54He has suffered from ongoing persistent back and neck pain for a number of years and still has not recovered. He continues to suffer referred pain down his right leg and wears a compression bandage which assists. He takes daily medication. The pain fluctuates in intensity and is severe at times.
55His back is a greater problem in terms of pain. After a recent MRI scan, he discussed with his GP ongoing treatment due to numbness going down his leg. There was no discussion about referrals to specialists. He was only told to continue moving and to do stretches to avoid further injury, which he does every day.[44]
[44] Plaintiff’s second affidavit
56He agreed there was no sign of any numbness in his leg apparent on the November 2020 surveillance film. A couple of months ago, his leg went “full numb”, and Dr Habibian sent him for an MRI scan. He agreed that on 4 May this year, he told his GP about low back pain and discomfort, and right leg weakness/ numbness. The plaintiff was worried about the future from this year as his whole right leg is numb.[45] His right leg is getting numb because of his back problem.[46]
[45] T79
[46]T48
57Dr Habibian referred him for an L4 injection after the July 2023 MRI scan.[47]
[47] T80
58The plaintiff now takes Lexapro in the morning and during the day, along with four Advil and two Voltaren. He also takes two Voltaren at night to take the edge off his pain and try to get some sleep.[48] He is not allowed to take any strong tablets.[49]
[48] T78
[49]T84
59As a result of ongoing pain, financial pressures and emotional distress, his marriage broke down in about November 2020. He rarely sees his children, which is very distressing.
60He enjoyed being active outside work and still walks, even though it is painful. He used to ride his bike frequently, especially on weekends, but had only done so a few times because of pain. This was because crouching over the handlebars caused increased back pain. Riding over bumps did the same thing and increased neck pain and stiffness. His varicose veins were not too bad for him to ride a bike before he started having back pain.[50]
[50]T76
61He is capable of driving and shopping. He tries his best not to take on jobs outside 20 kilometres from where he lives and is lucky most of the work is local, but he does drive to work if work is further away, despite pain.
62He places a lot of importance on working and keeping busy and active, and that is why he is continuing to do his best. His body struggles with pain, but he presses on, trying to keep as mobile as possible.
63He has a very basic life now, where he works, socialises very little, and uses his spare time to walk, attend the pool and undertake basic pain management to get on with the next day.
64He has to figure out what he will need to do next, because unrestricted physical work is no longer an option for him. That was the type of work he was good at. It was the type of work he enjoyed, but it is also the type of work that hurts him every day.
65He is on a waiting list for left leg vascular surgery.[51]
[51]T79
66The plaintiff agreed he was seen by Dr Habibian in December 2022 for his left shoulder and referred to the Austin Hospital Neuroscience Laboratory. He then said he was referred for his “nerve” not his left shoulder.[52]
[52] T49
Surveillance
67There was 25 minutes of surveillance film taken on 5 November 2020 commencing at 8.30am. The plaintiff was also shown at 11.14am and 11.29am.
68He and a friend were filmed moving the plaintiff’s wife and children’s belongings when she left matrimonial home. The plaintiff agreed he lifted various items which were handed up to him by his friend who was standing outside the truck, and the plaintiff then pushed the items around in the truck.[53]
[53]T66
69He denied the films suggested he had recovered. He explained the difficulties he has had as a refugee:[54]
“I don’t’ have anyone to help me out and if and if I have to carry on, I carry on. I don’t sit on the beach. I’ve got this pain for ages from that work and I didn’t say to anybody I couldn’t work, I couldn’t run, I couldn’t – I couldn’t and I didn’t say any lying to anyone. This caused problem. I got it from tyre fitting and wheel alignment from that shop. I can walk. I can’t use – for use a pushbike only for 500 metres or one K – max. That’s only my problem. I didn’t say any lying to- from previous from start till now. And you try to saying, you’re comfortable, you’re ok and you’re lying that’s to me disrespectful. I work really hard in that place.”[55]
(sic)
[54]T75
[55] T75-76
70On the day he was filmed removing the furniture, he was helping his wife. He was really nervous and flat. He then had to move the furniture back in at her place.[56]
[56] T82
Plaintiff’s medical evidence
Treaters
Dr Pakzamir, chiropractor, Gentle Family Chiropractic
71The plaintiff saw Dr Pakzamir from May to September 2015, having been referred by Dr Habibian.
72In May 2015, the plaintiff was complaining of chronic lower and upper back pain which had been worsening during the last few days. Painkillers had not been effective.
73Due to the nature and chronicity of his soft tissue and biomechanical injuries, the plaintiff’s prognosis was considered to be guarded.
Dr Habibian, GP, Bundoora Family Clinic
74Dr Habibian referred the plaintiff to Talkshop for depression and anxiety in November 2018. At that stage, the plaintiff was being prescribed Lexapro and Lyrica.
75He also referred the plaintiff to psychologist, Dr Barazandeh, in August 2019 for depression. A mental healthcare plan was completed that month to deal with the plaintiff’s depression.
76Dr Habibian wrote to the plaintiff’s solicitors in June 2022. He advised that the plaintiff had been suffering from low back pain, anxiety and depression, and also neck pain. The plaintiff’s present symptoms were right leg numbness and referred pain. The prognosis was uncertain.
77He thought the plaintiff was not able to work tyre fitting or able to do heavy lifting. He could do light duties, as he was working in his own business as a painter.
78Dr Habibian provided a similarly brief report in August 2023. In addition to matters previously noted, he also reported that low back pain had affected the plaintiff’s sleep and he was taking Voltaren. His recreational activities such as bike riding and running were also affected.
Dr Baglar, GP
79The plaintiff was seen by Dr Baglar for neck and lower back pain between 13 November 2018 and 17 August 2020 – three times in 2018, fourteen in 2019 and eight in 2020.
80He diagnosed cervical and lumbosacral spine strain with multilevel spondylosis and mild degenerative disc disease with bilateral C5 nerve root contact, and C5 nerve root contact in the neck. There was also bilateral L4-5 nerve root impingement.
81When last seen, he had the impression the plaintiff would not be able to return to his pre-injury employment or to any other employment of a similar physical nature. In fact, he would not be fit to return to any employment for which he would qualify by way of his education, experience and training.
82He did not think the plaintiff would be able to perform any household chores of a physical nature or any gardening activities, or recreation activities of a physical nature:
“To tell the truth, due to his low mood because of his pain and all those negative changes in his life, he was not in a mental state to enjoy or even to consider any recreational activities.”
83It was obvious the plaintiff had neck and lower back pain for which there was objective evidence, as reported by imaging studies. He sincerely believed the plaintiff’s employment contributed to his current medical and mental states.
Dr Barazandeh, psychologist
84Dr Barazandeh saw the plaintiff on referral from Dr Habibian in August 2019 for management of his depression and anxiety.
85He thought that the plaintiff was suffering from severe chronic pain caused by physical injury (neck and back injuries at work). His condition also resulted in depression and anxiety and he was using high dosages of painkillers.
86Symptoms of depression in the context of relationship problems, aftereffects of the work injury, and side effects of painkillers.
87In June 2020, Dr Barazandeh asked Dr Habibian to conduct a mental healthcare review.
88As at July 2020, Dr Barazandeh thought that the plaintiff’s main presenting issue was disappointment he had faced as a result of unemployment and pain.
Medico-legal
Dr Shahram Sadeghi, rehabilitation physician
89Dr Sadeghi saw the plaintiff in February 2019.
90The plaintiff was then experiencing neck and lower back pain between 7 to 8 out of 10 and mostly of a neuropathic type, including burning and sharp pain. He was also experiencing numbness and tingling in his right index finger and thumb. He also complained of right posterior thigh numbness.
91On examination, range of lumbar movement was mildly limited and very painful. There was mild limitation and pain in the cervical range of movement. There was severe tenderness in the lower spine, including bilateral paraspinal muscles.
92The plaintiff was suffering from aggravation of spondylosis and mechanical low back/cervical pain. Back and neck symptoms had resulted from the nature of his previous duties and, with his current symptoms, he was not able to reliably and consistently return to work.
93The nature of the plaintiff’s job had been a significant contributing factor to the development of the condition.
94The plaintiff was then unable to perform work activities reliably and consistently and this incapacity would continue for the foreseeable future if treatment did not address his pain.
Dr Hazem Akil, neurosurgeon
95Dr Akil first saw the plaintiff in July 2020 at his clinic.
96The plaintiff then continued to have right-sided lower back pain that sometimes radiated towards the right lateral thigh all the way to the knees of variable intensity.
97The plaintiff also had persistent neck pain. It was right sided in the cervical spine and extended towards the top of his right shoulder and involved the right scapular region. The pain was variable, although he felt discomfort all the time.
98The plaintiff was taking Tramadol for pain relief prescribed by his GP. He had stopped taking Nurofen because of gastric issues.
99On examination, there was limitation of back flexion and extension, the latter triggering more pain. There were no motor deficits in the lower limbs.
100The diagnosis was aggravation of lumbar and cervical spondylosis. Based on the history given, the plaintiff’s previous type of employment, the aggravation of both regions occurred because of his work duties.
101The prognosis was poor. The plaintiff was unable to return to his previous work. It would be difficult to find suitable employment.
102Dr Akil re-examined the plaintiff in August 2023 on Zoom.
103The plaintiff continued to have the same back and neck complaints. He also felt his right leg could get numb, especially after walking roughly under one kilometre, prompting his GP to request a new MRI scan.
104Dr Akil’s view remained that the plaintiff had aggravation of cervical and lumbar spondylosis on the balance of probabilities, given the description of his job as a tyre fitter. The plaintiff’s job was a significant contributing factor to his current condition and the prognosis was poor.
105There were restrictions which would last for the foreseeable future in relation to the plaintiff’s work. He could not return to pre-injury duties in an unrestricted way.
Dr Eman Awad, occupational physician
106Dr Awad examined the plaintiff in June 2023 via Telehealth.
107The plaintiff then reported an area of numbness and paraesthesia on the right side of his neck, radiating to the right arm and chest wall. Pain was constant. There was intermittent pain in the neck, which he scored 6 out of 10.
108There was constant back pain at 7 out of 10, and increased activity radiates to his right leg intermittently, associated with numbness.
109The plaintiff was currently medically fit for his role as a painter with the adjustments he has put in place, but would be permanently restricted from any heavy manual work.
110On the balance of probabilities, the plaintiff’s workplace with repetitive heavy lifting, bending, pushing and pulling was likely to have caused and aggravated his back and neck spondylosis.
111The plaintiff should be permanently and medically restricted from his pre-injury duties due to the heavier nature of the lifting and awkward body postures. He was currently managing with his employment full time, and there were no medical objections to him undertaking this role. He had a partial incapacity, finding it difficult to climb ladders, and would find it difficult to carry very heavy items above 10 kilograms. His prognosis was guarded.
Dr Nicholas Ingram, psychiatrist
112Dr Ingram examined the plaintiff in July 2020.
113The plaintiff was then suffering from a Chronic Adjustment Disorder with Depressed Mood and Anxiety which had come as a result of his chronic pain and inability to work. If it was accepted that his pain was related to his work, then his depression was also related.
114The prognosis for the plaintiff’s psychiatric condition largely depended on the prognosis for his pain.
115The plaintiff would find it difficult, from a psychiatric basis, to work full time because of his depression and the effect it had on his motivation, concentration and energy levels. He could manage part-time work if he could find a job that he could do, given his physical limitations.
116On re-examination in June 2023, Dr Ingram’s diagnosis was similar. The plaintiff’s depression had improved since last seen because he was working. However, he still had not resolved the separation from his wife and lack of access to his children. It was likely that this only came about because of his injury and the fact he was not able to work.
Investigations
117Following a lumbar spine x-ray in October 2018, it was reported there was a very slight curvature of the lumbar spine convex to the left and spondylitic lipping at L2-3 and L4-5. Disc space heights were relatively maintained apart from minor disc space narrowing at L2-3. There was no lumbar vertebral body fractures or significant facet arthropathy. Sacroiliac joints were unremarkable.
118It was reported an MRI scan of the cervical spine in November 2018 demonstrated mild disc bulging at C4-5 causing mild central canal stenosis and bilateral nerve root contact in the foramina.
119It was reported an MRI scan of the lumbar spine on 23 November 2018 demonstrated multilevel spondylosis and mild degenerative disc disease. No significant central canal stenosis was found. Bilateral L4 nerve root impingement was seen.
120It was reported a lumbar MRI scan of July 2023 revealed multilevel pathology with facet arthropathy. Acquired foraminal stenosis was present, particularly on the right at L4-5 with L4 radicular compression. It was suggested the plaintiff may benefit from an epidural block or right L4 nerve root block.
Defendant’s medical evidence
Treaters – other conditions
121A number of medical reports were tendered relating to the plaintiff’s gastrointestinal issues in 2017 and also depression.
122Dr Habibian noted in the plaintiff’s medical history when he referred him to the Austin in September 2015, as he was suffering from fatigue and tiredness – “May 2015, depression, Hepatitis B carrier and opiate addiction.”
123Dr Habibian referred the plaintiff to Mr Shaykhi for depression and anxiety in March 2021. Past history noted at May 2015: opiate addiction, Hepatitis B carrier and depression; August 2017, gastroscopy; July 2018, drug abuse, and 15 February 2021, depression and anxiety. He was then being prescribed Lexapro.
124More relevant reports related to the plaintiff’s varicose veins condition.
125The plaintiff underwent a venous doppler right and left leg in June 2016. In the right leg, there was a right incompetent anterior thigh accessory vein. In the left, there was incompetent superficial femoral vein and incompetent tributary as described.
126Dr Freeman, vascular registrar at St Vincent’s Hospital, wrote to Dr Habibian in October 2016, having seen the plaintiff in the Vascular Outpatient Clinic that day.
127The plaintiff had presented with left thigh pain which had been present for about a month or two after vein stripping surgery, which was performed in Turkey in 2011. He noted the plaintiff had a background of opioid abuse and may have altered pain perception thresholds. The pain was constant and did not appear to have any aggravation or relieving factors. It was not interfering with the plaintiff’s work.
128The recent ultrasound was suggestive of recurrence of his varicose vein disease.
129Dr Freeman thought there should be a trial of compression therapy before considering any further surgery and it would be appreciated if the general practitioner could refer the plaintiff to a chronic pain team, if not already, as this may be a neuropathic lesion.
130It was proposed to review the plaintiff in the clinic in three to six months, and a compression stocking was prescribed. Lyrica might be an appropriate trial medication.
131Dr Goh, vascular surgeon at St Vincent’s Hospital, wrote to the plaintiff’s GP in May 2017 advising that the plaintiff had significant pain in the left leg after the varicose vein surgery, and there had been a recent ultrasound. He thought it unlikely a repeat operation of the residual varicosities would help with pain and may make things worse. He had prescribed Lyrica, 27 milligrams, to see if that would help with pain and planned a review in six months.
132Doppler venous studies of both legs were performed in July 2021.
133Dr Habibian referred the plaintiff to Mr Jason Chuen, vascular surgeon, on 14 November 2022. The reason for referral was suffering from right leg pain and discomfort, had a history of varicose surgery/leg swelling. The test organised was “doppler bilateral leg veins for CVD with compression”.
134Dr Habibian referred the plaintiff to the neuroscience laboratory at the Austin Hospital on 1 December 2022. The presenting problem was left and right arm and hand, pins and needles, at night worse. An NCV was requested. The history was, “On 14 June 2021, neck and low back pain, Hepatitis B carrier, and fatty liver, 28 March 2022, a past history of neck pain”.
135There was a further referral to the neuroscience laboratory at the Austin Hospital on 4 May 2023, the presenting problem being right leg weakness/numbness, right arm pain/weakness. An upper and lower limb NCV study was requested. Lexapro, 20 milligrams, was the current medication.
Dr Habibian, Bundoora Family Clinic
136The plaintiff was first seen on 11 May 2015 when it was noted, “Known case Hepatitis B, back pain after moving heavy tyre …”. There was a further complaint of back pain the following day.
137Other spinal pain entries in 2015 were on 24 September - “neck pain for a while” and on 28 October, low back pain, neck pain, visited chiropractor no benefits, lifting more than 70 kilogram tyres several times.
138Twice in February 2016, the plaintiff attended complaining of low back and neck pain. In March, there were issues with the left leg varicose vein, in May, depressed mood and feeling down. Lexapro and Zoloft prescribed.
139On 31 July 2016 – there was a note of lower limb pain, tenderness calf muscles and 19 August – neck spasm since last two days. “It is (sic) happened in the workplace” – acute severe neck pain, was in hospital as well. Tramadol prescribed.
140During 2017, there were only five attendances and no mention of any neck or lumbar pain.
141On 28 January 2018 – working in Uber. Has been suffering from depression and anxiety. Stopped Lexapro. Feeling isolated. Low back pain and discomfort. There were a couple of attendances later in 2018 with abdominal pains. The reason for contact was gastroenteritis.
142In July 2018, the reason for contact was drug abuse, withdrawal drug. The plaintiff opened the conversation of taking opium. Withdrawal symptom after stopped. No suicidal idea plan and intention.
143On 4 October 2018 – feeling better for not using any opium. Weekly using marijuana. Had argument with his boss and lost his job. Working with Uber, had argument and ended up losing his job. Low back pain and discomfort. Feeling pain. Diagnostic imaging requested with an x-ray of the lumbosacral spine. On 10 October, been suffering from low back pain and depression and recommended for spinal physiotherapy.
144On 29 October 2018, depression much better. Visited chiropractor, neck pain and discomfort, burning sensation, right arm pain and discomfort, on and off marijuana. Following that examination, diagnostic imaging was requested in terms of the cervical spine/right shoulder, neck – “radiculopathy?”
145On 8 November 2018, marijuana use, neuropathic pain and sinusitis. On 13 November, the plaintiff was feeling upset. Had back pain and discomfort. Family issue at this stage. He said all of the pain is because of work and he said the workplace not caring.
146On 14 November 2018, not able to work regarding neck pain and discomfort. Drove with Uber and had a car accident and not able to work. Had another doctor for WorkCover.
147On 29 November 2018, he had an issue with his wife as she found out he used opium and he had been suffering from depression. There was then a mental healthcare plan.
148On 14 January 2019, low back pain and discomfort. Not on any drugs at the moment. Lyrica was ceased. On 7 February, low back pain and discomfort. On 22 February, still neck pain and discomfort on Centrelink. Not on any drugs at the moment.
149The next attendance for spinal issues was 7 August 2019. The reason for contact was cervical radiculopathy, neck pain and left arm pain – in worse pain ever. Tramadol not helping. Endone was prescribed.
150There were a number of attendances later in 2019 and in 2020, including a drug test in September 2020.
151In June 2021, low back pain and neck pain were noted and a referral was made to Northern Spinal. There were also visits for mental health issues at that time.
152The next visit relating to any spinal pain was 28 March 2022 “neck pain and discomfort”. There was an attendance for varicose veins in November 2022. On 1 December, the plaintiff was seen for left upper arm pain and discomfort.
153The next note of spinal pain was low back pain and discomfort, right leg weakness and numbness on 4 May 2023, with a letter written to the neuroscience laboratory. On 22 May 2023, body pain and discomfort was noted.
Defendant’s medico-legal evidence
Mr Chandrasekaran, orthopaedic surgeon
154Mr Chandrasekaran examined the plaintiff on 27 March 2023.
155The plaintiff told him that his neck pain developed about three years after commencing employment. He attributed this to the repetitive activity of checking wheel alignments by sliding under a car and unlocking tyre nuts in an awkward position.
156The plaintiff said his low back pain started two years after starting work, and he attributed it mainly to fitting truck tyres weighing 25-100 kilograms, which he said he would be required to repeatedly lift up to forty times a day. He worked six days a week from 8.00am to 5.30pm.
157The plaintiff complained of constant neck pain which he rated at 5 out of 10 but could go up to 8 out of 10 with exacerbating activities. He rated his lower back pain as 6 out of 10, raising to 8 with various exacerbating factors. That pain was associated with intermittent right leg numbness when he walked more than one kilometre.
158The plaintiff stated he was independent in personal hygiene tasks and did household duties at a slower rate. He had a driving tolerance of about 45 minutes, walking 10 minutes, and standing, 20 minutes.
159The plaintiff advised that he was working full time in his own self-employed painting business, mainly doing quotes, with his cousin doing the majority of manual work. However, he did, at times, paint walls, restricting himself to the lower half.
160On examination, there was some restriction of lumbar and cervical movement, which was associated with mild pain but no involuntary guarding. In the lumbar spine, sensation was preserved. There was a full range of shoulder motion.
161Radiological examinations included a cervical MRI scan in November 2018, which was reported to show mild disc bulging at C4-5, causing mild central canal stenosis and bilateral nerve root contact in the foramen.
162In November 2018, a lumbar MRI scan was reported to show multilevel spondylosis and mild degenerative disc disease. There was no significant central canal stenosis. There was bilateral L4 nerve root impingement.
163The findings of mild spondylosis at both levels would be consistent with the plaintiff’s age, as well as his work background, which included repetitive heavy lifting.
164Mr Chandrasekaran diagnosed spondylosis and mild degenerative disc disease without significant central canal stenosis in the lumbar spine. There was mild cervical spondylosis with a mild disc bulge at C4-5, and a mild central canal stenosis. Clinically, there was no evidence of radiculopathy.
165The effects of the aggravation had now ceased. The plaintiff was no longer lifting heavy tyres, which would be a major exacerbating factor.
166The plaintiff’s spondylosis at both levels was likely to be significantly exacerbated while employed as a tyre fitter. However, the exacerbating factors had now largely been removed and, as such, his previous employment was unlikely materially contributing to his current incapacity or impairment. That was more related to the natural history of his condition.
167The current level of impairment was likely to continue for the foreseeable future, and the degenerative disease at both levels was likely to become progressive.
168He did not comment specifically on the plaintiff’s current work capacity, simply describing a “current incapacity impairment”.
169The prognosis was guarded. The plaintiff was independent of activities of daily living and work capacity and, therefore, the impairment was mild.
170Treatment would largely consist of a self-based exercise program.
Dr David Elder, occupational physician
171Dr Elder examined the plaintiff in July 2023.
172The plaintiff confirmed the general nature of the duties working as a tyre fitter was extremely heavy work. He said he developed low back pain under the previous owner, but did not really seek any medical care for that, and the neck pain came on essentially due to the wheel alignment task.
173On examination, the plaintiff described ongoing constant neck pain radiating into the right arm, and sometimes his arm could feel numb. That was global rather than any particular nerve root or peripheral nerve. He also continued to complain of right sided low back pain. If he walked for more than one kilometre, his right leg would become globally numb.
174The plaintiff confirmed that he was not really seeking any medical care now at all, and was not taking any medication. He was not taking over-the-counter medication and he self-funded the pool, where he went three times a week.
175In terms of activities of daily living, the plaintiff could drive for about five minutes before he had to get out and stretch, and therefore limited painting jobs that he took on so that they were not too far from home. He had no choice but to do all household chores. When not at work, he was very socially isolated and had lost most of his friends. His sitting, walking and standing tolerance was about 45 minutes to an hour. He was independent in self-care, although he did have some difficulty drying his feet.
176Since October 2020, the plaintiff had been a full time domestic house painter. He had various other employees who all have their own ABN. He was unable to do ceiling and above-head height work.
177After losing his job as a tyre fitter, he worked as an Uber driver for about two months, but then had a relatively minor accident. He did not submit a TAC claim.
178On examination, there was decreased range of motion in the cervical and lumbar spine, and there was right sided cervical and trapezius, and right sided low lumbar spasm. Sensation and power were normal.
179The diagnosis was mechanical low back pain and cervical spine pain with no clinical evidence of radiculopathy.
180Employment was still materially contributing to the plaintiff’s physical incapacity. The nature of the duties as a tyre fitter were “extremely heavy” and “certainly were consistent with the development of mechanical low back and neck pain”.
181It was likely that the plaintiff’s current level of physical impairment would continue.
182The plaintiff was capable of performing full-time work in the painting industry, but Dr Elder did not believe he could return to the heavier work of tyre fitting.
183There was no evidence to suggest functional overlay, exaggeration or psychosomatic factors.
184The prognosis was for continuing symptomatology at a similar level.
185The plaintiff was undertaking self-management and that was within best medical practice for mechanical low back and neck pain. If the plaintiff did not wish to take medication, then that was entirely reasonable and appropriate.
Dr Peter Doherty, consultant psychiatrist
186Dr Doherty examined the plaintiff in June 2023.
187On mental state examination, there was not much to find from an objective viewpoint.
188There had been a longstanding problem with depression which pre-existed the issues the plaintiff claimed occurred in the subject employment. He continued antidepressant medication and his predominant complaint was one of pain.
189The diagnosis was a Chronic Adjustment Disorder, which was reasonable in relation to work-related issues if considered alone, without consideration of the longstanding pre-existing depressive problem. Such an Adjustment Disorder was largely remitted currently. He did not think there was a pain-related psychiatric condition.
190The depressive issues were present before the relevant employment and continued after.
191Any exacerbation caused by the claimed neck and low back pain, in combination with the negative workplace experiences or the circumstances of the sacking, remitted long ago.
192There was presently no significant psychiatric impairment. The plaintiff was currently fully employed, settled socially, and taking an antidepressant, and he was not attending a psychologist or psychiatrist. Even the low level of psychiatric impairment currently present would fade over time.
Overview
193It is accepted that the plaintiff suffered injury to his spine during the course of his employment as a result of the heavy nature of his duties as a tyre fitter. This concession was made despite the rejection by the defendant of the plaintiff’s claim for statutory benefits on the basis there was no compensable injury.[57]
[57] T112
194As counsel for the defendant stated:
“The defendant does not quibble with the likely aggravation during the course of employment of underlying cervical and lumbar spondylosis, but what is reflected in the period is minimal complaint and treatment in relation to those matters alongside fairly significant complaint and treatment in relation to other matters being mainly the varicose veins problems, the epigastric problems and to some extent the depression.”[58]
[58] T87
195Having made this concession, the issue then is whether the plaintiff’s employment continues to contribute to his spinal condition or whether any spinal issues are due to degeneration. If work related, are the consequences of any spinal impairment serious and permanent, after excluding non-related conditions?
196All medical examiners considered the plaintiff suffered an aggravation of lumbar and cervical spondylosis as a result of his heavy work duties. Save for Mr Chandrasekaran, they all accept the plaintiff’s heavy work still plays a role in his spinal condition. Mr Chandrasekaran’s view to the contrary is simple. The plaintiff aggravated the spinal condition when tyre fitting. When he stopped that work, the aggravation stopped.
197Counsel for the defendant submitted Mr Chandrasekaran demonstrated a path of reasoning with a history of the symptoms, treatment history – the lack thereof, findings on examination and the investigations. Lifting of heavy tyres had caused the aggravation. That activity had stopped, so the aggravation had stopped. Further, Mr Chandrasekaran thought the current incapacity or impairment was more related to the natural history of the condition.[59] Any aggravation from the employment had long ceased.[60]
[59] T91
[60] T87
198In response, counsel for the plaintiff criticised Mr Chandrasekaran’s view – “There is no analysis, no path of reasoning, and at best it is an ipse dixit proposition without any proper reasoning.”[61] Further, it was submitted Mr Akil and Dr Awad could be relied upon because they had a history of ongoing pain since the work, with no pain before.[62]
[61] T141
[62] T142
199In reply, counsel for the defendant submitted that the evidence of plaintiff’s activities in 2020 and the recent radiology “franked” Mr Chandrasekaran’s opinion and filled in the gaps in relation to any path of reasoning, rather than no path of reasoning in relation to those experts relied upon by the plaintiff who bears the onus as to why the aggravation persists five years after the cessation of employment.[63]
[63] T155
200In my view, Mr Chandrasekaran’s analysis was somewhat simplistic and without proper foundation. While the plaintiff may have had a degenerative spine, that condition was asymptomatic before working with the employer and was then aggravated by the heavy nature of his tyre fitting work as the defendant conceded.
201It is difficult to understand Mr Chandrasekaran’s view that the mild spondylosis at both levels would be consistent with the plaintiff’s age, as well as his work background, which included repetitive heavy lifting.
202I accept the plaintiff has continued to experience back and neck pain and related restrictions since ceasing work. The removal of the aggravating activity does not result in that activity not contributing to the plaintiff’s ongoing pain. I do not accept removing the offending activity makes degeneration the cause of any ongoing pain and restriction. Mr Chandrasekaran did not explain his view why this was the case. As counsel for the defendant conceded, this was a very hard argument for defendants, also relying on what was shown on the surveillance video and the fact the plaintiff had recovered to be able to start his own business in 2020.[64]
[64] T91
203As Mr Akil and Dr Awad opined, the plaintiff had no spinal pain before undertaking heavy physical work with the employer. As a result of this work, as the defendant admitted, the plaintiff has aggravated this underlying condition and continues to suffer from that aggravation – a view shared by Dr Elder, who examined the plaintiff on the defendant’s behalf earlier this year – and is unable to undertake heavy physical work.
204While increasing right leg symptoms make the plaintiff’s situation worse, the incapacity for heavy work has been present since the work injury.
205Although radiculopathy has been a recent finding on the July 2023 MRI, there is no requirement for such a finding for the diagnosis of aggravation of lumbar and cervical spondylosis.[65] No medico-legal examiner found radiculopathy in making this diagnosis.[66]
[65] T146
[66] T115
206Further, if it is the case that increasing right leg problems relate to varicose veins, as counsel for the defendant submitted,[67] although the evidence in that regard is unclear, the plaintiff’s incapacity for heavy work predated the onset of any problem in that regard.
[67] T107
Credit
207As Maxwell P said in Haden Engineering:[68]
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[68]Supra at paragraph [12]
208Counsel for the defendant attacked the plaintiff’s credit on the basis that his evidence of his medication intake was “all over the place”.[69] The issue was what he was taking and for what, and whether it was for the unrelated conditions and when he started and when he finished. The plaintiff was not still taking Tramadol or Lyrica when he swore his October 2022 affidavit listing them in his current medication.[70]
[69] T121
[70] T96
209It could also not be accepted the plaintiff takes over-the-counter medication.[71] More recently, he tells doctors he is taking no medication.[72]
[71] T122
[72] T99
210Further, it was submitted the surveillance film was evidence of the plaintiff’s recovery in that he appeared to be physically unrestricted in the November 2020 film.[73]
[73] T130
211In response, counsel for the plaintiff submitted the plaintiff was a frank, honest and a calm witness. No doctor thought he was exaggerating. In fact, Dr Elder said he presented in a straightforward way.[74]
[74] T133
212It was submitted the plaintiff had made numerous concessions under cross-examination, namely ongoing left leg pain from the varicose veins, wanting to see a psychologist, Mr Shaykhi, because of his marriage breakdown and using the technology on his App to restrict work to a 20-kilometre radius.[75]
[75] T135
213It was also submitted any question marks over the reliability of certain passage of the plaintiff’s evidence in relation to medication does not impugn his credit.[76]
[76] T153
214In terms of the surveillance film, it was submitted November 2020 was a very emotional time for the plaintiff. He had just split up with his wife. He has never said he cannot do things, but says he does so in pain and has to take medication.
215While there was an inconsistency in terms of the plaintiff’s evidence in relation to his medication intake,[77] I otherwise found him to be a credible and reliable witness and accept he was simply confused in relation to this issue.
[77] T133
216I was not concerned by any activity undertaken by the plaintiff shown on the film. I do not accept it showed he had recovered as counsel for the defendant submitted. The plaintiff was not shown performing any particularly strenuous or heavy activity. This was clearly a very emotional and difficult time for him, helping his wife move out of their home after they separated at the end of 2020. The plaintiff was being assisted with any heavy lifting and was simply moving items around in the back of the van after they had been handed up to him.
217In my view, the plaintiff has, since his arrival in Australia as a refugee in 2012, shown a strong work ethic, getting a job within months, and has done his best to continue working, with ongoing spinal pain resulting from his work with the employer. He is somewhat of a stoic. I accept his explanation that he did not regularly complain of pain to his GP because there was little point as he had to continue working and had undergone the treatment that was suggested with little improvement.
218As Nettle JA commented in Dwyer v CalcoTimbers Pty Ltd (No 2),[78] he suspected:
“… but for the way the appellant has been prepared to put up with his pain and suffering and get on with his business as best he can, the respondent may well have not disputed his claim … But it would be unfortunate and in my view wrongheaded if in future such an applicant were treated less favourably than another who, being of less strength of character, simply resigned himself to his injury.”
[78] [2008] VSCA 260 at paragraph [4]
Consequences
219Counsel for the plaintiff submitted ongoing pain was clearly a consequence from the plaintiff’s perspective. There was necessity for medication and ongoing treatment for persistent back and neck pain. The Court was urged to accept the plaintiff takes over-the-counter medication, despite inconsistencies in his evidence.[79]
[79] T151
220Counsel for the defendant submitted the plaintiff’s complaints of pain were not borne out objectively because of lack of treatment, failure to attend specialist referral and inconsistencies in his evidence as to his medication intake.[80]
[80] T128
Pain
221The evidentiary basis of the pain assessment would ordinarily comprise, inter alia, what the plaintiff says about the pain (both in Court and to doctors).[81]
[81] Haden Engineering (supra) at paragraph [11]
222The plaintiff complains of constant and burning neck pain and also some weakness in his right arm, with numbness in his index finger and thumb. He also has sharp low back pain which can be very strong, fluctuating with activity, at times shooting down the back of his legs and feet. He continues to suffer pain on a daily basis. His back is the greater problem.
223During 2023, the plaintiff has given a similar description of his symptoms to medico-legal examiners – Dr Akil, Dr Awad, Dr Elder and Mr Chandrasekaran. He also told some of them his right leg could go numb, especially after walking about one kilometre.
224I accept the plaintiff has continued to suffer constant back and neck pain of varying severity since the injury. He is still a relatively young man with many years left in the workforce.
225In Stijepic,[82] Ashley and Beach JJA noted, when judging the pain and suffering consequences for the appellant, by comparison with other cases, it is relevant to look at the likely period for which those consequences would be experienced. It was noted, all things being equal, impairment consequences which a man or woman would have to put up with for forty years might well be judged more serious than the same consequences which a man or woman may have to put up with for a much shorter period of time.
[82] Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181 at paragraph [43]
Treatment
226What the plaintiff does about the pain (for example, medication, rest, seeking medical treatment) is also relevant to the assessment of pain and suffering.[83]
[83] Haden Engineering (supra) at paragraph [11]
227Although it was conceded there were GP attendances with complaints of work related spinal pain from 2016, in general terms, counsel for the defendant submitted the lack of attendances by the plaintiff on Dr Habibian for spinal issues from June 2021 and his failure to take up the specialist referral to Northern Spinal[84] was not indicative of him experiencing the significant level of spinal pain which he describes.
[84] T128
228Further, the plaintiff’s evidence of his medication intake was unsatisfactory and it should not be accepted he is now taking any painkilling medication at the present time or that he previously took opium for painkilling purposes in 2018.[85]
[85] T97
229While there may be some gaps in treatment, counsel for the plaintiff submitted the plaintiff is a stoic who has consistently maintained he suffered spinal pain from tyre fitting.
230It was submitted the plaintiff had been getting on with his life as best he could. It was understandable that he has had issues with medication because of his addiction. He had not received any help from physiotherapy and he now does pool hydrotherapy, three times a week, which costs him $100 a month.[86]
[86]T81
231I accept the plaintiff is a stoic. His explanation for his particular difficulties as a refugee was convincing. Limited treatment in recent years has not been of any real assistance and he is trying to cope with his spinal condition himself. Problems with addiction may explain reluctance to take heavier medication, but I accept he takes painkillers, Voltaren, on a daily basis and has been prescribed stronger painkilling medication at times for his spinal issues. As Dr Elder described, the plaintiff‘s current self management is within best practice for mechanical low back and neck pain.
Work
232Counsel for the defendant submitted the plaintiff has retained the ability to move on and work, going successfully into his own business, having told Dr Ingram the business was going well. The financial records indicate the business has been growing. There is no affidavit from co-workers corroborating any difficulties the plaintiff has had in the business.[87]
[87] T129
233To the extent the plaintiff cannot return to heavy lifting employment, it was submitted the culprit is degenerative change, and that his spinal condition would continue to be exacerbated if he did return to that sort of employment.[88]
[88] T129
234It was submitted it was probably the case that because of the plaintiff’s degenerative condition, heavy work was always inappropriate for him. It exacerbated his back. Because of the underlying condition, he was at risk of further degenerative change.[89]
[89] T114
235The plaintiff’s case was that he suffered an aggravation of lumbar and cervical spondylosis as a result of his heavy duties with the employer. The work-related aggravation continues. It was submitted the plaintiff’s evidence was clear that he can and does work, but he does so with pain, quoting rather than painting. He has no choice but to work and does so with difficulty and restrictions.[90]
[90] T135
236In my view, it is difficult to understand the defendant’s argument that there are no relevant work consequences, having admitted the causal connection between tyre fitting and the plaintiff’s spinal problems.[91]
[91] T108
237The consensus of medical opinion is that the plaintiff cannot do heavy unrestricted work. While Mr Chandrasekaran did not comment specifically on this issue, he seemed to acknowledge there is an incapacity for heavy work but attributes it to degeneration.
238Despite his inability to undertake heavy work, the plaintiff is getting on with his life, running his own business. He is a stoic. He is managing as best he can in his own business where he can organise his own jobs. However, he is limited in the full range of painting activities involved, including height work on ladders and heavy lifting, and needs to employ other workers to do these tasks. His focus is largely on quoting and the administrative side of the business.
239I accept the plaintiff suffers from ongoing spinal pain but has to work because he cannot afford not to.[92] He started his own business in 2020 out of financial necessity, not because he had recovered, as counsel for the defendant submitted.
[92] T153
240The plaintiff’s work capacity is clearly restricted from a pain and suffering perspective. Loss of ability to undertake heavy physical work is relevant to an assessment of pain and suffering consequences.[93]
[93] Ellis Management (supra) at paragraph [35]
Other consequences
241The plaintiff does not appear to have been a man with any hobbies or particular recreational activities before his injury. However, he did ride a bike and now has difficulty doing so because of his spinal condition.
242I accept that there are some limitations on the plaintiff’s ability to maintain sustained postures and walk and he has difficulty lifting heavy weights.
243There is also some restriction in his ability to drive long distances and he has to limit his work jobs accordingly. He stopped Uber driving because of problems turning his head when driving.
244While there are different accounts of the cause of the plaintiff’s sleep problems, Dr Habibian recently reported low back pain has affected the plaintiff’s sleep and he is taking Voltaren at night.
Unrelated condition
245In Peak Engineering & Anor v McKenzie,[94] Maxwell P described the difficulty faced when a separate injury is also producing pain and suffering consequences for the claimant, as well as the relevant injury.
[94] [2014] VSCA 67 (“Peak Engineering”)
246In such circumstances:
“The Court must decide whether the consequences of the original injury are ‘more than significant or marked, and ... at least very considerable’. For that purpose, it is necessary — so far as the evidence permits — to identify the consequences properly referable to the original injury, and to exclude the consequences referable to the subsequent injury.”[95]
[95] At 1
247The President found that the judge was:
(a) bound to identify, and exclude, the continuing consequences for the plaintiff of any non compensable injury; and
(b) when the consequences properly referable to the relevant injury were identified, identified them as “serious”.[96]
[96] At 2
248Counsel for the defendant submitted in terms of Peak[97] a major problem for the plaintiff was his left leg varicose vein problem, both pre and post the incident – “The only consequence remaining was the inability to return to heavy manual employment, but others, like mobility, seemed to relate to his legs.”[98]
[97] Peak Engineering (supra)
[98] T123
249It was submitted the plaintiff has not disentangled. He is waiting for further surgery for his left leg, which has been the dominant problem throughout.[99]
[99] T130
250Counsel for the plaintiff submitted the Peak[100] point was dealt with in relation to the left leg because the plaintiff had been having problems in this regard since the varicose veins operation in Turkey in 2011 yet he was still able to run, work and do other various activities.[101]
[100] Peak Engineering (supra)
[101] T150
251I accept this submission. The plaintiff was able to engage in heavy work with the employer and lead a relatively normal life, including riding a bike, without significant mobility problems, despite an ongoing varicose vein condition, until he hurt his spine working for the employer.
252As Dr Freeman, vascular registrar at St Vincent’s Hospital confirmed in October 2016, the plaintiff’s left thigh pain was not interfering with the plaintiff’s work.
253Taking into account all the evidence, excluding the consequences of any unrelated varicose vein issues, I am satisfied that the consequences of the plaintiff’s work related spinal impairment are serious as at the date of hearing.
254As these spinal symptoms have continued since their onset in 2016 without significant improvement, I am satisfied the impairment is permanent.
255Accordingly, I grant leave to the plaintiff to bring proceedings for damages for pain and suffering.
Psychiatric impairment
256Having granted leave pursuant to clause (a), I am not required to consider the psychiatric impairment claim.[102]
[102] Georgopoulos v Silaforts Painting Pty Ltd [2012] VSCA 179
257In any event, this application was not a strong one and submissions in relation thereto were very brief.
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