Pilehvar v Victorian WorkCover Authority
[2017] VCC 1137
•21 August 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-16-02888
| AMIR PILEHVAR | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 31 July and 1 August 2017 | |
DATE OF JUDGMENT: | 21 August 2017 | |
CASE MAY BE CITED AS: | Pilehvar v Victorian WorkCover Authority | |
| MEDIUM NEUTRAL CITATION: [First revision 22 August 2017] | [2017] VCC 1137 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – impairment to the lumbar spine – organic basis – unrelated condition – pain and suffering – loss of earning capacity
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Kelso v Tatiara Meat Co Pty Ltd [2007] 17 VR 592; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Dressing v Porter [2006] VSCA 215; Meadows v Lichmore Pty Ltd [2013] VSCA 201; Peak Engineering & Anor v McKenzie [2014] VSCA 67
Judgment: Leave granted to bring proceedings for damages for pain and suffering and loss of earning capacity.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D J N Purcell with Mr M Fogarty | Maurice Blackburn |
| For the Defendant | Mr R H Stanley | Wisewould Mahoney Lawyers |
HER HONOUR:
Preliminary
1 The plaintiff was employed by the F and J Metal Fabrications (Australia) Pty Ltd (“the employer”) as a labourer. On or about 18 January 2013, he suffered injury to his lower back in a lifting incident at work (“the incident”).
2 This is an application for leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”).
3 The application is made under ss(a) of the definition contained in s134AB(37) with the body function being the lumbar spine. An application under ss(c) for a psychiatric impairment was withdrawn at the commencement of the hearing.[1]
[1]Transcript (“T”) 1
4 Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.
5 The impairment of the body function must be permanent, in the sense that it is likely to continue into the foreseeable future.
6 The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, ss(19) and ss(38)(e) of s134AB of the Act impose specific burdens in relation to a claim for loss of earning capacity.
7 By s134AB(38)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments, can fairly be described, at the date of the hearing, as being “more than significant or marked”, and as being “at least very considerable”.
8 I 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.
9 In this application, where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of 40 per cent or more, both at the date of hearing and permanently thereafter.
10 Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured.
11 Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the 40 per cent loss has been established.
12 Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
13 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[2] and Grech v Orica Australia Pty Ltd & Anor[3] in reaching my conclusions.
[2](2005) 14 VR 622
[3](2006) 14 VR 602
14Only the plaintiff was called to give evidence and he was cross-examined. Also in evidence were medical reports and other material. I have read these tendered documents, together with the transcript of the proceedings. I shall not refer to all of that material in the course of this judgment, but rather to those parts of the evidence and reports which I consider necessary to give context to, and explain the conclusions reached in my judgment.
The Plaintiff’s evidence
15 The plaintiff is thirty five, having been born in August 1982 in Iran. He is presently in receipt of Newstart benefits and lives with his brother.
16 The plaintiff completed secondary school and qualified as an accountant in Iran. The accountancy course was mainly theory, and written rather than involving computer use. He passed all the course requirements.[4]
[4]T42
17 The plaintiff then completed an unpaid internship before having trouble with the government in Iran. He was briefly detained and interrogated for several days and subjected to slapping and psychological mistreatment.
18 As a result, the plaintiff fled Iran, eventually ending up in Australia, having spent a year in a detention centre at Christmas Island.
19 On his arrival in Australia, the plaintiff spent a year in detention in Darwin. After his release in about February 2012, he was then in community detention in Epping for four months.[5] On 31 May 2012, the plaintiff was granted a refugee visa.[6]
[5]T17
[6]T18
20 The plaintiff had psychological difficulties being in detention, and found it a very difficult time. During that period, he spoke to a counsellor or psychologist. He believed he also had some medication but could not recall the name thereof.
21 The plaintiff was cross-examined extensively about his experience in Iran and subsequent detention in Australia.
22 The plaintiff confirmed his affidavit evidence and explained he was subjected to slapping and psychological mistreatment for two or three days by the people who arrested him. It was not a pleasant experience for sure. He agreed he became so fearful he would be further tortured, that he fled Iran.[7]
[7]T9
23 As the plaintiff told Dr Weissman, psychiatrist, there was mistreatment and lots of problems in detention – “things happened, events, incidences and all the psychological problems, and it was hard”. He agreed it was horrible and that he was seeing people self-harm and suicide, which caused him to be psychologically upset and require treatment in Christmas Island.[8]
[8]T10
24 When he came to Darwin, the plaintiff required ongoing psychological treatment and psychiatric medication. That situation continued after his release from detention when he was under the care of Foundation House.[9]
[9]T10
25 The plaintiff remembered he missed his family, as his counsellor, Will, at Foundation House recorded when he first saw the plaintiff in late 2012.[10] The plaintiff agreed he was then having some challenges and difficulties with settling in Australia and finding it tough.[11]
[10]Will Fearnley-Sandler report of 28 January 2013, paragraphs 175-178 of this Judgment
[11]T11
26 Further, at that time, the plaintiff was having nightmares and problems with sleep relating to his experience in detention but ever since he started working with the employer, work gave have him a purpose and caused him to get very tired, and he was able to sleep better. Being busy with work decreased his psychological and mental problems. He felt much, much better until he was injured at work. The work injury actually aggravated all his mental and psychological conditions and problems.[12]
[12]T12
27 Whilst working, the plaintiff was going to Foundation House less frequently. However, after the work injury, he attended a lot more frequently on a regular basis.[13]
[13]T12
28 The plaintiff agreed, as Will noted, that while he was working, he had low mood and mental problems, but stressed that after the work injury, this situation worsened a lot.[14]
[14]T12
29 The plaintiff could remember seeing general practitioner, Dr Sebti, in November 2012, but he could not recall the details of their meeting. He could remember discussing with him the physical pressure of his work.[15] He told Dr Sebti the work was very taxing and every morning he was waking up with body ache and cramp.[16]
[15]T15
[16]T22
30 The plaintiff did not know why he would speak to his general practitioner regarding his mental condition, because he was seeing Foundation House. He simply could not remember the details of his conversation with Dr Sebti.[17]
[17]T15
31 Maybe at that time, the plaintiff was suffering from frequent flashbacks in relation to his very painful experiences in the camp, but he could not recall the details. He was having flashbacks, but he was occupied and busy with his work and the flashbacks were decreasing.[18]
[18]T16
32 The plaintiff agreed he was then having problems sleeping but they were decreasing drastically, simply because he was working eight hours a day and he was pretty busy with his work.[19] He also agreed he was anxious two weeks before the said date, but his anxiety was not as severe as before. His medication was decreasing and it was about to be stopped because of his improvement; however, after the work injury, the medication was increased.[20]
[19]T16
[20]T17
33 The plaintiff did not think he had seen any other doctor after he was released from detention before he saw Dr Sebti in late 2012. The plaintiff was then taking medication that he was prescribed at the detention centre.[21]
[21]T17
34 The plaintiff needed the job with the employer to cover his living costs – “work was work”. He did not think he complained to Will about being in a lower social position in that job. It was his first job; he was not familiar with work in Australia. He then thought he had to do heavy lifting and later on realised this was not the case.[22]
[22]T22
35 The plaintiff denied that he was working in a job he did not like and that was worsening his psychiatric condition. The work made him very occupied, so he was not dwelling on things as he did previously, and work helped him with his mental condition. After injury, and as a result thereof, everything got worse and the injury aggravated his mental condition.[23]
[23]T22
36 In re-examination, the plaintiff confirmed he needed work. He had no choice, he had to make some money, and it was very crucial for his livelihood. He was not claiming he was so interested in that particular job or, on the other hand, hated it, but it was helping him pay the bills.[24]
[24]T46
37 The plaintiff explained that it was hard to say what his intentions were with work, had he not been injured. Maybe he would have changed his job when he realised that all jobs were not the same, but his job with the employer was his first experience. Maybe he would have continued doing a trade role as there are a lot of tradies in Australia who work following all the safety instructions. Maybe he would have continued that type of work because he had some interest in it.[25]
[25]T48
38 The plaintiff found a full-time labouring job with the employer in Dandenong in July 2012. There was overtime available and he was paid $18 per hour.[26]
[26]2012-2013 financial year $20,599
39 The plaintiff’s work with the employer was heavy and manual. He often had to lift and manoeuvre sheets of steel, working alone. He had episodes of low back pain from time to time, which he reported to his general practitioner.[27]
[27]Attendance with Dr Sebti, 30 December 2012; T21
40 On the said date, the plaintiff was lifting a large and heavy steel canal at work when he experienced severe low back pain, such that he fell over (“the incident”). He reported the incident. He was told to rest, and go home.
41 The pain continued, and on 20 January 2013, the plaintiff saw a general practitioner, Dr Sebti, at Dandenong Superclinic.[28] A few days later, the plaintiff saw another general practitioner, Dr Hamimi, at Dandenong West, who arranged a lumbar CT scan.
[28]See paragraphs 103-104 of this Judgment
42 In late January 2013, the plaintiff attended Dandenong Hospital, where he was admitted as an inpatient for a couple of weeks, and had a lumbar MRI scan of his back.[29]
[29]See paragraphs 105-110 of this Judgment
43 The plaintiff lodged a Claim for Compensation on 7 February 2013. He did not complete the form and believed his case manager from Adult Migrant Education Services filled it out whilst the plaintiff was still in hospital, or had just come home. He did not report the incident to Joe, as was noted on the form, because Joe was on holidays. He in fact reported it to a supervisor, Richard.
44 The plaintiff attended Dandenong Hospital again in late February 2013 where he had an x‑ray of his lower back.
45 The plaintiff confirmed that when he was discharged from hospital he used crutches and needed them to walk for several months because, without them, the pain was excruciating.[30]
[30]T38
46 During that time, the plaintiff’s psychiatric state was deteriorating, with his pre-incident psychological problems worsening after the incident. He had counselling from Mr Sanjay at Foundation House who took over his case from Will.[31]
[31]T22
47 The plaintiff started to see a psychiatrist, Dr McArdle, in January 2014. Treatment with him continued for over a year.[32]
[32]T24
48 The plaintiff agreed he described his complaints as reported by Dr McArdle in his 2014 report.[33]
[33]See paragraphs 112-115 of this Judgment
49 The plaintiff continued to try and do hydrotherapy through Dandenong Hospital. In May 2014, he attended a rehabilitation physician, Dr Rawicki. On his suggestion, the plaintiff had an injection in his lower back in June 2014 and was then referred for rehabilitation, which he underwent at Caulfield Pain Clinic in March and May 2016.[34]
[34]T39
50 At the time he swore his first affidavit in February 2016, the plaintiff had constant, fluctuating low-back pain. He was then taking Tramadol, Targin, Seroquel, Movicol, Epilim, Effexor, Endep and Lyrica.
51 The plaintiff’s pain worsened with sitting or standing in one position for too long, and he found he constantly needed to get up and move position or lie down. Cold weather made the pain worse.
52 Sleeping was then difficult. If the plaintiff rolled on his left side when asleep, he woke up because of the pain. The more active he was during the day the worse the pain was at night. He also continued to experience intermittent pain and numbness down his left leg.
53 The plaintiff relied on his brother, who was his carer, to help him with many basic activities and household chores.
54 The plaintiff would then have liked to have been working, but he did not know what sort of work he would be able to do. He did not believe he could cope with any physical or manual work.
55 Although he had qualified as an accountant in Iran, the plaintiff had never worked in that role in Australia. He would have to study again to do so, as the course is not recognised here.
56 To practice in Australia, the plaintiff would have to first improve his English skills to an academic level which would take two years or so. Having attained those skills, it would probably take a further two or three years for him to complete an accountancy course.[35]
[35]T48
57 The plaintiff’s English skills are very poor. He struggles to write in English, and his reading is also poor. Although he can read the alphabet and understand a few words, he needs help from friends and people at the Foundation to understand written English. He can sometimes understand what people are saying in English, but does not feel he can respond.
58 When the plaintiff worked for the employer, there was a co-worker who was able to translate from English to Farsi, his language, and also his brother worked there.
59 The plaintiff tried an English course at Dandenong TAFE in 2014. He attended for about two or three months, but due to severe back pain, he could not continue.[36]
[36]T35
60 The plaintiff agreed that his present problem with hearing voices would affect his concentration with respect to English, as would his mental condition. His pain also caused difficulty concentrating. He agreed that being around people makes him now feel angry and, as a result, he sort of isolates himself, and that could be one of the reasons he has less exposure to English skills in conversation. His pain and these issues are interconnected.[37]
[37]T36
61 Since his injury, the plaintiff had not really planned to undertake further study to work as an accountant, as Dr Hamimi noted. As the plaintiff was not successful with the English language course, he did not have the motivation left to go ahead with accountancy.[38]
[38]T40
62 The plaintiff thought he might have said something to vocational assessor, Paul Hartley, like it was his hope to learn English, gain physically suitable employment, and gradually work his way through university to be an accountant again. However, he did not discuss with Paul Hartley what training programs were available to refugees in this regard.[39]
[39]T40
63 Everyone at Foundation House and the plaintiff’s doctors were all aware of his attempts with English and that he had made a commitment to go to English class and improve, but because of physical pain and problems, he could not continue. Maybe those advising him were waiting for his physical condition to improve to be able to sit in class.[40] Assuming he had better English, the plaintiff would not be able to sit for extended periods to study, as his back would “hurt badly”.[41]
[40]T42
[41]T48
64 The plaintiff agreed he was smart enough, mentally, to undertake further accountancy study.[42] However, when he was studying in Iran, he did not have the psychological, mental health or physical problems that he now has. In the last seven years he has had hardship, physical problems and needs to take medication. He does not have the energy or concentration to be able to do anything or study. He is not the same person. Ever since his injury, he has been using very heavy, serious medication, and he has not been himself.[43]
[42]T43
[43]T44
65 The plaintiff has tried at home to improve his English, but because of his forgetfulness and lack of concentration, if he learns a word today, or tomorrow, he forgets it, so it is very hard for him.[44]
[44]T42
66 The plaintiff agreed he has sufficient internet skills to send emails and do Facebook posts.[45]
[45]T43
67 As of February 2016, the plaintiff’s psychological problems had worsened since his injury, and he then became very agitated and very stressed. He worried a lot about the future and what he would do, given he was injured and only very young. As a result of his low-back pain and constant stress and worry, his libido and sexual function was significantly reduced.
68 In his recent affidavit sworn 5 May 2017, the plaintiff deposed that very little had changed in terms of his pain and limitations.
69 If the plaintiff stays in one position for more than about fifteen minutes or so, his low-back pain starts to quickly build up. This is also the case with prolonged sitting or standing, after which he has to change his posture if he is to keep his pain under control.
70 The plaintiff finds bending or twisting movements using the back or waist usually causes sharp pain. He tries to avoid those movements if he can, but that is not always possible, and therefore there are frequent flare ups every day.
71 Pain continues to travel down into the plaintiff’s left leg to the top of his left foot and toes. As with his lumbar pain, the leg pain is always there, but varies in intensity from time to time. The leg pain usually flares up or worsens along with a back flare up. The plaintiff often feels numbness in the left leg and tries to keep some weight off it if he can, and that seems to help a little with the pain.
72 In general, the more active the plaintiff is, the more pain he has, but sometimes the pain can flare up for no obvious reason, and is hard to predict.
73 The plaintiff agreed, as Dr Slesenger noted, that his physical symptoms were aggravated by his anxiety.[46]
[46]T34
74 The plaintiff does not do much with his day. He washes and gets ready in the morning, and tries to do a few short chores around the house. He does them slowly and carefully. However, if his pain is bad, he cannot get much done, and he watches television, but then finds it becomes too painful to stay seated.
75 The plaintiff can drive, and generally does so to the shop or the pool, or perhaps the doctor, but cannot drive far, and mainly drives locally. His back pain flares up after about 15 to 20 minutes behind the wheel, and then he has to get out and stretch.
76 Apart from medication, the only thing that settles the pain is sleep. That does not mean the plaintiff sleeps well. At the end of the day, he is usually in a lot of pain, and it takes him quite a long time to get to sleep. He wakes a few times during the night, and rarely gets more than a couple of consecutive hours’ sleep. That situation leaves him feeling tired during the day, and makes it even harder to deal with the pain.
77 The plaintiff realises he has not coped well mentally. He knows he is depressed, but that is something he simply cannot shake free of. He often feels overwhelmed by pain and limitations on his life, and finds it very hard to keep a positive frame of mind. He also still ruminates about what happened to him in Iran and subsequently, while in detention in Australia.[47]
[47]T33. The plaintiff confirmed this situation in cross-examination
78 The plaintiff agreed with Dr Al Wahab’s list of his current psychiatric problems.[48] He also agreed those problems would stop him working.[49]
[48]See paragraphs 181 to 185 of this Judgment; T27-31
[49]T36
79 The plaintiff hates living the way he does, but also feels trapped by his back pain and limitations. After so many years and so much treatment, he feels there is not much more he can do about the pain and his current resultant predicament.
80 It is difficult to live on Centrelink. If the plaintiff was able to find a job he could cope with, he would very much like to be working, but he has realised he is not able to get back to physical or hands-on work, and there is simply no way he could commit to regular hours or days of physical work, as each day is largely controlled by his level of back and leg pain.
81 The plaintiff has thought about the possibility of some light office work; however, his English skills are still not good. Whilst he has very basic English skills, he needed an interpreter to assist with his instructions for the affidavit. Further, apart from his lack of English skills, he had also struggled to stay seated at a desk or in a chair.
82 The plaintiff presently takes Effexor, 150 milligrams three times a day; Endep, 50 milligrams by two at night; Lyrica, 150 milligrams by two per day; Targin, 10 milligrams – 20 milligrams once daily, and Tramal, 20 milligrams by two a day.
83 With his current medication regime, the plaintiff feels very numb and like he is not the same sort of person, as if he cannot move. He feels very heavy, a bit confused and so slow.[50]
[50]T46
84 The plaintiff has undertaken all medical treatment suggested by his general practitioner.[51] When he has sometimes tried to delay taking his medication, his back pain increased.[52]
[51]T45
[52]T49
85 The plaintiff currently sees Dr Hamimi each week or so for certificates and medications, community support worker, Mr Robinson, usually each week, counsellor, Lucia at Foundation House, every week or so (last having attended about a month ago[53]), psychiatrist, Dr Al Wahab, every month or two and Dr Rawicki from time to time, usually every couple of months. The plaintiff has hydrotherapy five times a week.
[53]T24
86 The plaintiff has told Dr Hamimi and Mr Robinson about all his pains.[54]
[54]T38
87 The medications and treatment all help, but do not make the plaintiff pain free. The tablets take the harshest edge away from pain, but that is all. He has tried different treatment, including lumbar injections, but nothing has given him more than partial pain relief.
Lay evidence
88 The plaintiff’s brother, Medhi, swore an affidavit on 15 May 2017.
89 Medhi came to Australia in 2011, after the plaintiff had arrived. Medhi was also in detention and his first job thereafter was working for the employer. The plaintiff was already working for the employer when Medhi started.
90 Medhi confirmed the heavy nature of the plaintiff’s work and the incident injury.
91 Post-incident, Medhi has become the plaintiff’s carer, and receives Centrelink benefits. He helps the plaintiff sort out his medication. Initially he had to help him shower.
92 Medhi believed he had taken the plaintiff to hospital three or four times over the past year, with visits to Box Hill and Dandenong. He continues to help the plaintiff with everyday activities, such as housecleaning, shopping and cooking.
Treaters
93 Since 2012, the plaintiff has undergone treatment at Foundation House, an organisation run by the Victorian Foundation for Survivors of Torture Incorporated.
94 The plaintiff first saw general practitioner, Dr Sebti, on 24 November 2012.
95 Dr Sebti then noted the plaintiff had a problem with his eyes and also depressive symptoms – Anxiety and memory problems – and needed Cognitive Behavioural Therapy under a Mental Care Health Plan. The reason for the visit was “lipoma? and depression”.
96 The plaintiff was seen again on 30 December 2012. Dr Sebti then noted that the plaintiff had a very painful and stressful experience in the camp. He was granted a visa after two years and was in the community for four months in Epping.
97 Dr Sebti noted the plaintiff had pain in different parts of the body since he started working in a factory three months ago – “Heavy lifting, twisting, forward bending and hammering at work”. There was neck pain, back pain, right hand pain, painful right finger and right wrist.
98 Dr Sebti also noted:
“Mental trauma and torture in Iran by Government. Denies frequent nightmares. Denies frequent flashbacks to the mental trauma in Iran but had a very painful experience in [the] camp and has got frequent flashbacks to that.”
99 Further, he noted the plaintiff had poor sleep and his sleep was not refreshing. There was general tiredness, depressed mood, anxiety and memory problem +. The plaintiff had been advised to take some medication for depression in the camp. He was advised to bring the medical records or the tablets on next examination.
100 On that examination, there was no local tenderness or restriction of movement in the neck or back. The reason for the visit was an itchy eye, depression, anxiety, mental trauma in the past, lipoma?, epigastric pain.
101 Dr Sebti wrote a letter regarding a New Refugee Health Assessment. The plaintiff was informed he would need to pay for QuantiFERON Gold.
102 On examination on 20 January 2013, Dr Sebti noted acute back pain since two days ago radiating to the left leg. The plaintiff had this pain intermittently since he started working in the factory four months ago. The pain has increased considerably since two days ago and has become intolerable. Heavy lifting, twisting, forward bending and hammering at work was noted. The plaintiff cannot sleep because of the pain. Worse with sitting and the pain is present even when sitting down.
103 On examination, there was local lumbar spine tenderness ++ and straight leg raising was positive on the left. It was noted there needed to be an x-ray and the plaintiff was not to work until the next visit. Panadeine Forte was prescribed and a medical certificate given.
104 The plaintiff was an inpatient at Southern Health between 25 January and 7 February 2013.
105 Under “history”, it was noted the plaintiff had a sudden onset of pain after lifting a heavy object at work. An L5-S1 disc prolapse, with left-sided sciatic symptoms was diagnosed.
106 It was noted that there were issues with the employer refusing to sign the WorkCover form, and the plaintiff had since been dismissed from work.
107 The report also set out there was no former history of Post-Traumatic Stress Disorder (“PTSD”) previously from Foundation House. That organisation was not aware that the plaintiff was on antipsychotics, nor was the general practitioner.
108 The plaintiff was assessed by the Psychiatry Unit as having no suicidal thoughts, no signs of depression, psychosis or delirium. He was diagnosed with PTSD and referred to a community psychiatrist.
109 Targin was prescribed for pain management.
110 Dr McArdle, consultant psychiatrist at Foundation House, reported in March 2014, first having seen the plaintiff on 20 January 2014 when the main concern was evolving depression and agitation.
111 Dr McArdle noted that by the time he saw the plaintiff, his clinical state was of great concern for the people involved with his care. The plaintiff had become significantly depressed, could not sleep, was in constant pain and had started to develop a view it would never get better. He was angry, distressed, resentful, and was continually ruminating about his fears for the future, and his loss of hope about having a future in this country.
112 Dr McArdle noted the plaintiff was then also on quite an extensive amount of psychotropic and analgesic medication. He complained of poor sleep and was constantly anxious. He ruminated about the injury and his future, and he complained that his memory and concentration were impaired, and that he was despairing about his future.
113 Dr McArdle’s impression was the plaintiff had suffered a very significant psychological injury because of the effect of his back injury in this particular context. In particular, the plaintiff felt victimised by the fact he had been unable to get support from WorkCover and he felt he was treated unfairly by his former employer, and that had amplified his sense of anxiety and fear about the future, given he had migrated to a country from a place where he was persecuted.
114 Dr McArdle concluded, although there had been some improvement in the plaintiff’s mental state with counselling and medication, it was clear he had suffered very significant psychological effects from the back injury and the way it was dealt with by his employer.
115 Dr Hamimi from the Dandenong West Medical Centre most recently reported on 30 April 2017. The plaintiff has been a patient at that clinic since 22 January 2013.
116 Dr Hamimi noted the plaintiff’s current symptoms include lower back pain, left leg pain and numbness most of the time. The pain was moderate and aggravated by sitting and walking. It was painful to sleep on the left side. Associated symptoms were anxiety, depression and PTSD.
117 Dr Hamimi noted the plaintiff’s injuries had continued to cause him constant pain, stress and tiredness. He had been unable to sleep at night and needed medication to help him relax and sleep. He had been suffering from insomnia, low mood, feelings of sadness, hopelessness and lack of energy, decreased concentration, forgetfulness and loss of interest.
118 Dr Hamimi noted that following the diagnosis of depression and anxiety, the plaintiff had been seeing a clinical psychologist and was also taking antidepressants. There were no psychotic symptoms. The plaintiff’s insight, intelligence and cognition appeared normal.
119 Dr Hamimi thought the plaintiff would benefit from symptomatic physiotherapy and a regime of back strengthening exercises, which he could do at home. In his view, the plaintiff will not be capable of resuming his duties until there is some improvement in the present symptoms. On resumption of duties, there should be restriction in the amount of bending and lifting.
120 Dr Hamimi thought the plaintiff’s quality of life had diminished due to the injuries sustained as a result of the work injury and he was partially incapacitated for employment. He considered the degree of disability was mild or moderate.
121 Dr Hamimi thought the plaintiff’s condition was directly related to his work and he was currently unfit for all pre-injury employment. He considered it very difficult to make an accurate prognosis, given the chronicity of the plaintiff’s condition and his failure to respond to therapy.
122 The plaintiff was treated by Dr Barry Rawicki, rehabilitation provider, on referral from Dr Hamimi, first seeing the plaintiff in May 2014.
123 Dr Rawicki organised a transforaminal epidural injection which was carried out at Dandenong in June 2014, which did not provide the plaintiff with any benefit. He also referred him to Dandenong Community Rehabilitation Centre for therapy, but that did not occur. The plaintiff ultimately went to Manningham CRC where he had some therapy; however, he remained with significant ongoing chronic back and radiating left leg pain.
124 Dr Rawicki diagnosed an L5-S1 disc prolapse and he believed the plaintiff had left S1 nerve irritation as a consequence thereof, which had resulted in chronic lower back and radiating left leg pain.
125 Dr Rawicki noted the MRI scan confirmed the presence of the disc prolapse. As of June 2015, the plaintiff was on a range of opioid and non-opioid medication, as well as antidepressants for the management of his depression, which Dr Rawicki believed resulted from the injury. The plaintiff was under the care of psychiatrist, Dr McArdle.
126 Dr Rawicki believed there was a direct relationship between the plaintiff’s employment and the lifting of a 100-kilogram industrial air conditioner, the disc prolapse and his subsequent pain.
127 As of June 2015, Dr Rawicki thought the plaintiff was unable to work. Should there be a resolution of his pain, then, he believed the plaintiff would be able to work, although he should not return to heavy lifting work because he would be at significant risk of further injuries. He considered the plaintiff should be retrained in work that did not require him to perform heavy lifting tasks and he could be retrained in various manual tasks, or tasks that did not require any manual labour at all.
128 Dr Rawicki then thought the plaintiff’s prognosis was difficult to determine, noting he had then had pain for almost two-and-a-half years without resolution. His treatment had been limited by lack of funding and availability of both an intensive rehabilitation program, which would be desirable, as would further injections.
129 Given the significant effluxion of time, Dr Rawicki thought it was likely to be a problem of chronic pain; however, he believed there would be reasonable prospects of getting control of the plaintiff’s pain and returning him to the workforce in a modified capacity.
130 Dr Rawicki most recently saw the plaintiff in March 2017, having also seen him in November 2015. On the latter occasion, the plaintiff complained of ongoing chronic back and left leg pain, essentially unchanged.
131 In view of the plaintiff’s failure to make significant gains, Dr Rawicki referred him for further assessment to the Pain Clinic at the Caulfield General Medical Centre, where he was seen in May and March 2016. He was unsure whether they continued to see and treat the plaintiff.
132 Dr Rawicki thought, on the balance of probabilities, the plaintiff’s employment remained the material cause of his injuries.
Medico-legal evidence
133 Dr David Weissman, psychiatrist, examined the plaintiff in February 2014. The plaintiff was then seeing Dr McArdle monthly, and also a counsellor, Sanjay, weekly.
134 Dr Weissman noted the plaintiff reported having a thinking problem while in detention and had been seen by a psychiatrist and prescribed a tablet. Dr Weissman thought it would be important to know whether the plaintiff was then suffering from stress or depression and/or psychosis.
135 The plaintiff advised Dr Weissman he felt better when he obtained his job and then stopped taking the tablets.
136 The plaintiff described his concentration and memory as very weak and forgetful. He could not concentrate at English classes, and his mind was very obsessed with everything.
137 At the end of interview, the plaintiff expressed significant grievances against his pre-injury employer for allegedly misusing and mistreating him.
138 Dr Weissman advised it would be important for him to obtain detailed reports from the plaintiff’s current treating psychiatrist, and also the psychologist, and details as to the plaintiff’s pre-incident mental health.
139 Dr Weissman concluded the plaintiff was suffering from a Chronic Major Depressive Disorder with Anxiety of at least moderate intensity or severity, and symptoms and features of a Chronic Pain Disorder associated with psychological factors and general medical conditions.
140 On purely psychiatric grounds alone, Dr Weissman thought the plaintiff was currently suffering from at least a moderate group of work-related psychiatric conditions and mental injuries, characterised by depression, anxiety, frustration, irritability, grievance, pain focus, sleep disturbance, social withdrawal and loss of self-esteem and confidence.
141 Dr Weissman could not say that the plaintiff was totally incapacitated for all work on purely psychiatric grounds alone; however, he was most probably currently partially incapacitated for suitable duties somewhere in the order of 0.5 EFT.
142 Mr David Brownbill, consultant neurosurgeon, examined the plaintiff on 29 March 2017.
143 The plaintiff then complained of constant lower back pain, which had not improved, and increased with prolonged standing or sitting, or with physical activity. There was constant left leg pain extending from the buttock, down the back and side of the lower leg to the top of the foot and toes, present all the time, with fluctuations.
144 Examination showed a restriction of the thoracolumbar spinal movements. There was no objective abnormality of the lower limbs or signs of radiculopathy.
145 Mr Brownbill thought the plaintiff’s demeanour and responses throughout the examination suggested a likely emotional response to pain, the full assessment of which lay outside the neurological province.
146 Mr Brownbill considered radiological investigations had demonstrated some longstanding degenerative changes at the lower two levels of the lumbar spine, with disc degeneration and protrusion at the L5-S1 level on the left, extending to the intervertebral foramen.
147 Mr Brownbill thought, in the future, the plaintiff should avoid activities involving heavy lifting or spinal mobility, repeated bending, or prolonged sitting or standing. He would not, in the future, be able to return to his described employment or to heavy manual employment in general.
148 From a physical neurosurgical point of view, Mr Brownbill considered the plaintiff would be capable of attempting a graded return to work program avoiding those activities, and the number of hours he could work would be dictated by his responses.
149 Mr Brownbill thought the plaintiff had sustained aggravation of lumbar spine degenerative changes with L5-S1 disc derangement and prolapse. He considered some back and leg pain may continue in a fluctuating manner indefinitely, with the use of analgesics being appropriate.
150 Mr Brownbill thought the described pain commenced as a result of the organic L5-S1 disc derangement and prolapse, and there was likely an ongoing organic component to the described pain.
151 Mr Brownbill considered, on the balance of probabilities, the plaintiff could realistically and reasonably perform employment in a reliable fashion, avoiding activity restrictions in terms of heavy lifting or spinal mobility, repeated bending, or prolonged postures, from a physical neurosurgical point of view.
152 In a supplementary report, Mr Brownbill commented on Mr Carey’s reference to non-organic signs on examination and noted the tests relied upon by Mr Carey were specifically described as not being for assessment of abnormal illness behaviour. Accordingly, Mr Brownbill did not change his opinion.
153 The plaintiff was examined by occupational physician, Dr Slesenger, on 13 April 2017.
154 The plaintiff then advised of ongoing severe lower back pain at a level of 6 to 8 out of 10, occasionally increasing to 10 out of 10. He described the pain as being dull, sharp and stabbing in character, and radiating to the left leg in a similar intensity and character. Physical symptoms were aggravated by anxiety and cold weather. He had problems with prolonged postures, and lying down, particularly on the left side, relieved his symptoms.
155 The plaintiff also advised that as a result of the injury, he had become depressed and had developed anxiety. His mood was low and his memory and sleep were poor.
156 Dr Slesenger noted the plaintiff had basic computer skills and was unable to read and write in English.
157 On examination, there was a restricted range of lumbosacral spinal movements, tenderness over the lumbosacral spine and some non-organic features on neurological examination; however, Dr Slesenger thought that they were limited.
158 Dr Slesenger diagnosed mechanical injury to the lumbar spine, aggravation of degenerative disease of the lumbar spine, Chronic Pain Disorder and psychological impairment (although noting this was outside his area of expertise).
159 Given the length and severity of the plaintiff’s impairment and disability, and taking into account his psychological comorbidity, Dr Slesenger thought the prognosis must be guarded. He recommended a more holistic approach to the plaintiff’s impairment and that he be referred to a pain clinic to address pain management, and for him to engage in a multidisciplinary approach to his rehabilitation.
160 Dr Slesenger was satisfied that the initial impairment and disability was organically based, and that a significant component of the plaintiff’s ongoing impairment has an organic basis; however, he noted the non-organic features on evaluation, and he thought there was a minor component to the plaintiff’s presentation that had a psychogenic element.
161 Dr Slesenger was satisfied the plaintiff’s occupational exposures remained a significant material cause of his impairment and disability.
162 Dr Slesenger considered the plaintiff does not have the capacity to return to work performing pre-injury duties, either full or part time, noting the manual handling and postural requirements.
163 Taking into account the plaintiff’s age of thirty-four, his past occupational experience, his language limitations and limited skills, the limited transferability of his qualifications, and his symptoms and functional limitations (organic component), Dr Slesenger thought, at this stage, the plaintiff does not have the capacity to return to work in a role for which he has suitable training and experience.
164 Noting the limited treatment to date and the opportunities for further treatment, Dr Slesenger thought, with appropriate treatment, the plaintiff was likely to see some improvement in his overall function and residual capacity. However, taking into account the length of his impairment and disability to date, the limits of his transferrable skills and qualifications, and computer skills, he remained cautious as to whether the plaintiff would see a significant improvement in his function to the point he would be able to return to work in a role for which he has suitable training and experience.
Investigations
165 Following an MRI scan of the plaintiff’s lumbar spine in January 2013, it was reported there was relatively advanced for age mechanical changes. There was focal disc protrusion on the left at L5-S1 compressing the traversing left S1 nerve root.
166 There was a CT scan of the lumbar spine organised by Dr Hamimi in January 2013. It was reported there was a left paracentral disc bulge at L5-S1 contacting the thecal sac and extending to the left existing foramen, which was narrowed.
167 There was an MRI scan of the spine in April 2014. It was reported that at L5, there was a mild broad-based disc bulge extending into the right foramen, with a foraminal disc protrusion and an annular fissure contacting and displacing, but not compressing, the right L4 nerve root.
The Plaintiff’s vocational evidence
168 Paul Hartley from Vocation Directions prepared a vocational assessment report in April 2017, having interviewed the plaintiff.
169 Taking into account the plaintiff’s physical injuries alone, Mr Hartley considered, on balance, the plaintiff was not presently capable of undertaking unrestricted pre-accident work duties for full injury hours on a regular basis.
170 On balance, Mr Hartley thought the plaintiff was not presently capable of undertaking any suitable employment. Given his age, injuries, medication regime and physical restrictions, he thought it unlikely, on the balance of probability, the plaintiff would be able to find suitable employment on the open market which he would be able to perform in an efficient, reliable and productive manner.
171 This conclusion was based on the plaintiff’s inability to fulfil the inherent physical demands of either sedentary or light work, his lack of occupational rehabilitation for four years since injury, his very poor level of English literacy across all four domains and his highly limited digital literacy.
The Defendant’s medical evidence
172 Counsellor, William Fearnley-Sander, first saw the plaintiff at Foundation House in November 2012.
173 Prior to that, the plaintiff had several contacts with Foundation House’s Brunswick office. He had also received assessment and counselling while in detention on Christmas Island and subsequently, in Darwin, provided by Melaleuca Torture and Trauma Counselling Service.
174 Mr Fearnley-Sander noted the plaintiff reported his mental condition deteriorated significantly during his period of detention. He was also experiencing severe stress relating to the challenges of settlement in Australia, including social isolation and loss of social status, compared with his situation as a professional in Iran. He thought the marginalisation that the plaintiff experienced as a newly arrived refugee was a significant contributing factor to his distressed mental state.
175 Mr Fearnley-Sander noted that on presentation, the plaintiff presented with symptoms of post-traumatic stress and depression including hyper-arousal: agitation – irritability, increased emotional sensitivity, nightmares and disturbed sleep, difficulty concentrating and intrusive thoughts about his experiences in detention (no indication of a formal diagnosis of PTSD in his record), grief relating to separation from his family, who are still in Iran, particularly his mother, ruminations about the drastic changes in his life circumstances including the loss of status, career prospects and social identity, including also loss of culture and capacity to function independently in his new environment. That grief had been compounded by difficulty that the plaintiff was experiencing in trying to obtain travel documents to visit his mother in Iran.
176 There were also problems with presentation of low mood: despairing thoughts about the plaintiff’s perceived low social status including expectations he will not be able to improve his work and social position in Australia. In this context, the plaintiff experiences significant despair, shame and frustration. He is also quite isolated in his new environment. He experienced suicidal ideation while in detention. However, he had not disclosed current suicidal ideation.
177 Mr Fearnley-Sander noted the plaintiff had only recently commenced counselling and disclosed details of arrest and torture in Iran. The referral notes indicated significant trauma. The plaintiff was taking anti-depressants while in Darwin, and they may have been also prescribed on Christmas Island.
178 The plaintiff’s current treating psychiatrist, Dr Al Wahab, wrote to Dr Hamimi in March 2017, having then seen the plaintiff twice for assessment of anxiety and PTSD, as well as depression.
179 Dr Al Wahab noted the plaintiff presented with depressive symptoms, as well as PTSD, in the context of the work injury.
180 The plaintiff reported disturbed sleep, with lack of interest and feelings of hopelessness, mainly due to the work injury. He reported his mood as 2 to 3 out of 10 with low energy, concentration and lack of appetite, with weightloss lately. He had suicidal thoughts when in detention and recently, but no intent or plan. He presented with severe depressive symptoms, but no history of mania. He has a history of panic attacks, feels anxious, and has increased anxiety and palpitation with increased pain in his legs with signs of sciatica.
181 The plaintiff reported similar depressive episodes whilst in detention, which was completely resolved once he was released into the community until the work incident. He had never been on anti-depressants prior to that, as he was well.
182 Dr Al Wahab noted the plaintiff reported non-specific psychotic symptoms such as sometimes hearing whistles in his ears that lasted for a minute, and sometimes hearing people’s voices calling his name. That happened about two or three times a week, sometimes four or five times or more, and when he was upset. The voices started only about six or seven months ago after the work incident and have increased in frequency lately.
183 The plaintiff also reported some non-specific persecutory delusions secondary to when he is out. He always feels someone is monitoring him, possibly secondary to WorkCover, and he would search the house a few times for any cameras.
184 The plaintiff also reported a history of panic attacks, being short of breath, increased heart rate, numbness in the hands and shaking, which could last for two hours. He also sometimes reported feeling very nervous, grinding teeth and pain in his jaws, and headaches. He reported PTSD symptoms, mainly about the time he was in Dandenong Hospital. He reported nightmares about four or five times a week and flashbacks most of the time, and quite a lot of muscle twisting. He had many worries about everything, about his future and his health issues and started to feel forgetful and restless, with irritability and easy fatigue.
185 Dr Al Wahab thought the plaintiff presented with PTSD with mixed generalised Anxiety Disorder and depression, severe with no psychotic features, and a Panic Disorder.
186 Dr Al Wahab advised the plaintiff to increase Venlafaxine to 375 milligrams in a month, and if no response, then to 450 milligrams. If he could tolerate that dose with no improvement, there may be a change of medication, one that had a good impact on his pain.
187 Dr Al Wahab thought it important to continue ongoing psychotherapy with acceptance and commitment therapy or IPT. He was supportive of the plaintiff’s WorkCover application for his ongoing psychotherapy and psychiatric treatment as it is purely related to his work injury, and he is happy for the plaintiff to be on a Disability Pension until he got better. He advised the plaintiff to continue to be in touch with the Pain Clinic and avoid polypharmacy and dependence on opioids, which he was already on.
Medico-legal evidence
188 The plaintiff was examined by orthopaedic surgeon, Mr Roy Carey, in April 2017.
189 The plaintiff then complained of chronic, widespread low-back pain involving the whole of the left leg, which could also lose feeling from time to time. The pain was constant and varied in severity depending on the weather and stress. It was also increased by any untoward physical activity.
190 The plaintiff advised he could not sleep on his left side and he constantly changed position, as he did during the consultation. He described pain as 6 to 7 out of 10 on a usual day, and at best 6 and at worst 10. In a normal day, he was mostly lying down, and when not doing so, was constantly changing position.
191 Mr Carey noted reports from Dr Hamimi, Dr Weissman and Dr McArdle, which indicated the plaintiff has had a severe psychological reaction to his injury, and Dr Weissman diagnosed a Major Depressive Disorder and a Chronic Pain Disorder.
192 On examination, the plaintiff walked with a limp on the left. There were non-organic signs of abnormal illness behaviour present. There was no muscular wasting. There was a give-way weakness in all muscle groups.
193 The non-organic signs of abnormal illness behaviour noted to be present by Mr Carey were positive axial compression, simulated pelvic rotation percussion and skin pinch tests.
194 Mr Carey noted the CT scan of the plaintiff’s lumbar spine of January 2013 and the lumbar MRI scans of April 2014 and January 2013. He commented that it would appear that over the fifteen months between the two MRI scans, the usual natural history of disc extrusion herniation had been followed, for example reabsorption of most, if not all, exuded material.
195 Whilst the plaintiff still complains of chronic and severe pain in the back and left lower limb, Mr Carey thought the physical signs now are no longer those of nerve root irritation and conduction deficit, but are primarily those of non-organic signs of abnormal illness behaviour, indicating a major psychological/ psychiatric response to the well-documented physical injury, which indeed occurred well over four years ago.
196 Mr Carey thought the history indicated the back and left leg pain came on as a result of the single heavy lifting incident, and as a result thereof, the plaintiff sustained left sciatica due to a concordant left L5-S1 disc herniation, a not uncommon injury occurring in those circumstances.
197 Mr Carey noted his thoughts on the continuing high use of high dose opiate analgesic in the plaintiff’s circumstances were best not distilled to the written word.
198 Mr Carey thought the plaintiff’s presenting condition was of back and left leg pain, but the principal presentation was now that of Chronic Pain Disorder. He did not offer any view as to the plaintiff’s current work capacity.
Overview
Credit
199 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[55]
“… 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.”
[55](2010) 31 VR 1 at paragraph [12]
200 As counsel for the plaintiff stated, the parties were in “heated agreement” that the plaintiff’s credit was not affected in the witness box and there was no real challenge to his evidence as to his level of pain.[56]
[56]T81
201 Counsel for the defendant did not make any submission that the plaintiff was not a witness of truth or that he was not candid in cross-examination.[57]
[57]T64
202 The plaintiff was very frank in his affidavits and his viva voce evidence as to his significant psychiatric difficulties following his torture in Iran, detention in Australia and his psychiatric problems which continue.[58]
[58]T88
203 There was no film shown of the plaintiff or any other evidence challenging his claimed level of pain and incapacity. Medhi corroborated the plaintiff’s evidence as to his incident-related difficulties. Medhi’s evidence was unchallenged.
204 I found the plaintiff to be a very honest witness who gave frank evidence and did not exaggerate the level of his symptoms and complaints, having obvious difficulty sitting for any extended period in the witness box.[59]
[59]T64
205 Whilst causation appeared to be in issue in the original court books, the defendant did not dispute that the plaintiff suffered a compensable injury to his lumbar spine in the incident.[60]
[60]T7
206 However, counsel for the defendant submitted the case “at best is a bulged disc”[61] and that the plaintiff’s problems are now largely non-organic, as Mr Carey opined.[62]
[61]T69
[62]T7
207 In Meadows v Lichmore Pty Ltd,[63] Maxwell P set out the two-step manner in which I ought to approach the task in this type of case:
“… The first step is to ask whether there is a substantial organic basis for the pain and suffering consequences relied on. If the answer to that question is affirmative — and, of course, if the pain and suffering consequences satisfy the statutory criterion — then the applicant will succeed without the need for any ‘disentangling’ of the physical contributions to the pain and suffering from the psychological contributions.
If, however, that first question is not — or cannot be — answered affirmatively, then the applicant will need to take the next step and ‘disentangle’. That is, the applicant will need to be able to separate the physical contribution to the pain and suffering from the psychological, in order to be able to satisfy the court that the pain and suffering consequences attributable to the physical injury satisfy the statutory test.”
[63][2013] VSCA 201 at paragraphs [21]-[22]
208 Counsel for the defendant relied heavily on Mr Carey’s view that the physical signs now are no longer those of nerve root irritation and conduction deficit, but are primarily those of non-organic signs of abnormal illness behaviour, indicating a major psychological/psychiatric response to the incident injury.
209 Further, counsel for the defendant submitted a number of other practitioners found a non-organic component on examination of the plaintiff. Dr Slesenger identified non-organic behaviour. Dr Weismann, albeit in 2014, spoke of a pain focus and a Chronic Pain Disorder,[64] and the plaintiff’s general practitioner thought the plaintiff is suffering from a Chronic Pain Disorder associated with depression and anxiety.[65]
[64]T69
[65]T70-71
210 Counsel for the defendant also submitted the plaintiff’s own behaviour was indicative of a non-organic response – using a wheelchair in hospital and crutches for months thereafter, in the year after the incident, being unable to shower and dress himself and, more recently, spending most of his day lying down to cope with his back pain.[66]
[66]T68
211 Counsel for the plaintiff frankly conceded the plaintiff has a significant psychiatric condition[67] but submitted the plaintiff’s lumbar condition is organically based and serious. It was not said by any examiner that the plaintiff had such a florid psychiatric condition that they were incapable of assessing the organic injury.[68]
[67]T79
[68]T86
212 Whilst counsel for the defendant submitted those practitioners supportive of a continuing organically-based injury were unaware of the plaintiff’s severe psychiatric problems, the plaintiff’s general practitioner has been sent psychiatrist, Dr Al Wahab’s, most recent report detailing the plaintiff’s significant problems in this regard.[69]
[69]T86
213 Counsel for the plaintiff submitted there was objective evidence of an organically-based lumbar condition, with all practitioners agreeing that the plaintiff initially suffered a prolapse at L4-5 in the incident – Mr Carey being the only one of the view that it had subsequently resorbed.[70]
[70]T81
214 Further, whilst Dr Slesenger diagnosed a Chronic Pain Disorder, he seems to have considered this was organically based, also diagnosing a psychological impairment, which he said was outside his area of expertise. Significantly, Dr Slesenger also diagnosed mechanical injury to the lumbar spine and aggravation of degenerative disease of the lumbar spine.
215 Mr Brownbill thought there was a likely ongoing organic component to the plaintiff’s pain as of March 2017. Further, he was critical of the basis on which Mr Carey made his assessment, relying on a number of tests which Mr Brownbill considered were inappropriate when assessing non-organic features.
216 Although Dr Hamimi, in April 2017, diagnosed PTSD and anxiety and depression, he thought the plaintiff’s incapacity for manual work was due to his physical injury.
217 The plaintiff has undergone treatment for an organic injury - in particular, the transforaminal epidural injection in June 2014 and the ongoing prescription of significant painkilling medication.
218 Taking into account all the evidence, I am satisfied the plaintiff’s lumbar spine condition has an organic basis and for the reasons discussed later in this judgment, the consequences thereof in relation to both pain and suffering and loss of earning capacity are “serious”.
“The Peak[71] point”
[71]Peak Engineering & Anor v McKenzie [2014] VSCA 67
219 Further, it was submitted by counsel for the defendant that the application could not succeed, given the severity of the plaintiff’s present psychiatric condition.[72] Further, it was submitted the plaintiff could not establish seriousness or the requisite 40 per cent loss of earning capacity.[73]
[72]T7
[73]T8
220 In Peak Engineering & Anor v McKenzie,[74] 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.
[74]Supra
221 In 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.”[75]
[75](Supra) at paragraph [1]
222 The President found that the judge was:
(a) bound to identify, and exclude, the continuing consequences for the plaintiff of the unrelated injury; and
(b) when the consequences properly referable to the relevant injury were identified, identifying them as “serious”.[76]
[76](Supra) at paragraph [2]
223 Counsel for the defendant made detailed submissions as to the plaintiff’s psychiatric history leading to his current condition as described by Dr Al Wahab in his March 2017 report – accepted by the plaintiff as being accurate and being such that it would prevent him from working.[77]
[77]T53-62
224 In addition to ongoing problems with flashbacks, nightmares, panic attacks and hearing voices, the plaintiff requires significant anti-depressant medication, with Dr Al Wahab recently having increased the dosage thereof.[78] Counsel for the defendant described this psychiatric situation as “dire”.[79]
[78]T61
[79]T59
225 Although it was submitted there was a lack of evidence from current psychiatric treaters – counsellors at Foundation House[80] – it is clear from treating psychiatrist, Dr Al Wahab, that significant psychiatric factors affect the plaintiff’s life in a number of ways:
[80]T67
· Pain is increased by anxiety[81]
[81]T65
· Sleeping is affected by flashbacks and nightmares
· Memory and concentration problems resulting from the plaintiff’s psychiatric condition affect his ability to study and work, with memory problems predating the incident injury, as noted by Dr Sebti[82]
· The plaintiff’s inability to learn English also results from his social isolation and lack of exposure to spoken English to help him learn.[83]
[82]T66
[83]T66
Consequences
226 As Maxwell P stated in Peak Engineering:[84]
“In a case of this kind where two different injuries are concurrently producing pain and suffering consequences for the applicant, it will ordinarily be necessary to make findings about all of the pain and suffering consequences which are operative at the date of trial. This would seem to be an essential pre-condition of the task of deciding which of the pain and suffering consequences are attributable to which injury.”
[84](Supra) at paragraph [24]
227 In the present case, I am required to analyse all the evidence, so far as possible assessing the extent to which it is back pain rather than psychiatric injury which causes the reduction in various activities.[85]
[85]T32
228 Maxwell P also noted in Peak Engineering that it was possible to imagine a case where the consequences of the original injury are so clearly separate and distinct from the consequences of the subsequent injury that no disentangling is necessary.[86]
[86](Supra) at paragraph [25]
229 A number of consequences in this application fall largely into that category.
Pain
230 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:
“The evidentiary basis of the pain assessment will ordinarily comprise the following:
(a) what the plaintiff says about the pain (both in court and to doctors);
… .”[87]
[87](2010) 31 VR 1 at paragraph [11]
231 I accept that the plaintiff continues to suffer constant lumbar pain of a fluctuating nature, with left leg pain and numbness, as a result of which he is unable to stand or sit for any extended period.[88] Flare ups occur if the plaintiff moves the wrong way or increases his level of activity or, at times, for no apparent reason.
[88]T89, complaints noted by Dr Slesenger, Mr Brownbill and Mr Carey in 2017
232 Whilst the plaintiff conceded his pain is increased by anxiety, I accept he suffers a significant level of organically-based back pain for which those treating him have thought it necessary he be prescribed very strong painkilling medication which, together with the other treatment to date, relates solely to the plaintiff’s back pain.
233 The plaintiff was initially prescribed Panadeine Forte when he attended Dr Sebti in the days after the incident. Targin was first prescribed later in January 2013 when the plaintiff was hospitalised at Dandenong.[89] Thereafter, he has continued to be prescribed very significant medication – currently Lyrica, Targin and Tramadol that “takes the harshest edge away” from his ongoing pain.[90]
[89]T81
[90]T91
234 In Kelso v Tatiara Meat Company Pty Ltd,[91] Dodds-Streeton JA said:
“The chronic pain was a prominent feature of the appellant’s case. The endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence.”
[91](2007) 17 VR 592 at paragraph [19]
235 I am not satisfied that a more “holistic” approach to treatment in the future as noted by Dr Slesenger will significantly change this situation, as counsel for the defendant submitted.[92]
[92]T75
236 Other treatment to date has included hospitalisation in early 2013 for treatment of back pain. An injection in mid 2014 provided only partial relief. As Dr Rawicki noted, the plaintiff ultimately went to Manningham CRC where he had some therapy; however, he remained with significant ongoing chronic back and radiating left leg pain.
237 The plaintiff later attended a pain management clinic in Caulfield in March and May 2016 at Dr Rawicki’s suggestion. The plaintiff continues to attend hydrotherapy five days a week.
238 I accept that the plaintiff’s sleep is affected by both his back pain and psychiatric issues in the form of nightmares and flashbacks.[93]
[93]T89
239 Whilst psychiatric factors also affect the plaintiff’s work capacity – difficulty with memory and concentration, panic attacks, flashbacks et cetera – I am satisfied that as a result of his back condition alone, the plaintiff now has a “light work back”.[94]
[94]T88
240 The plaintiff is not fit for work involving heavy lifting, forced spinal mobility, repeated bending, or prolonged sitting and standing, as Dr Hamimi, Mr Brownbill and Dr Slesenger opined. Mr Carey did not give an opinion as to the plaintiff’s current work capacity.
241 Further, the plaintiff also has a driving tolerance of only about 15-20 minutes because of his back pain.[95] He is limited in his ability to perform domestic tasks and requires the ongoing assistance of his brother in that regard.
[95]T90
242 In my view, the inability to undertake unrestricted physical work as a result of his back condition is a serious consequence for the plaintiff. I accept that he would like to work but he is not physically capable of doing so on a regular reliable basis with the constant and sometimes unpredictable nature of his back pain
243 Whilst the plaintiff qualified as an accountant in Iran, that qualification is not recognised in Australia and to be able to now practise in that field, the plaintiff would have to totally retrain, having first achieved proficiency in English which he currently sadly lacks.[96]
[96]T88
244 I accept that as evidenced by the nature of his first job in Australia, the likelihood was the plaintiff would have continued to work in unskilled manual labour had he not injured his back in the incident. He confirmed this situation, explaining that he would have liked to work as a “tradie” in this country.
245 I reject the submission by counsel for the defendant that the plaintiff came to Australia with high hopes of white collar work and did not intend to do manual work and in those circumstances, the loss thereof cannot therefore be said to be a serious consequences for him.[97]
[97]T76
246 Taking into account all the evidence, I am satisfied the pain and suffering consequences of the plaintiff’s organically-based lumbar condition – constant pain, restriction of movement, need for strong painkilling medication[98] and the inability to engage in unrestricted manual work – are serious for this relatively young plaintiff.[99]
[98]T87
[99]Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181
Loss of earning capacity
247 Having satisfied the narrative requirements to obtain leave in relation to loss of earning capacity, the plaintiff must also establish that –
(a) at the date of the hearing, he has a loss of earning capacity of 40 per cent or more – s134AB(38)(e)(i); and also
(b) after the date of hearing, the relevant loss of earning capacity will continue permanently – s134AB(38)(e)(ii).
248 The measurement of loss of earning capacity is set out in paragraph (f) which requires a comparison between:
(i) “without injury” earnings; and
(ii) “after injury” earnings.
249 The former must be calculated by reference to the six-year period specified in s134AB(38)(f).
250 “Without injury” earnings consist of the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion had the injury not occurred.
251 It is to be calculated by reference to that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity.
252 The plaintiff carries the onus of proof in relation to economic loss and particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and (g) therein.
253 I am therefore required to determine a “without injury” earnings figure – Barwon Spinners Pty Ltd & Ors v Podolak.[100] The parties agreed the “without injury” earnings should be calculated on the basis of $18 per hour the plaintiff was paid by the defendant.[101] Annually, this represented a salary of $36,000, 60 per cent of which is about $400 per week.
[100](2005) 14 VR 622 at paragraph [70]
[101]T2
254 Taking into account all the evidence, whilst the plaintiff would have significant difficulty working as a result of his psychiatric condition, I am satisfied he has suffered the requisite loss of 40 per cent as a result of his organically-based lumbar injury alone.
255 Whilst the plaintiff was having treatment at Foundation House when he was working for the employer in the six months before the incident, he was able to work full time in relatively heavy work,[102] despite the problems noted by Dr Sebti and Will at that time.[103]
[102]T83
[103]T62
256 As the plaintiff explained whilst working, he attended Foundation House less frequently. Although his work was hard, he liked having a job and working gave his life a purpose, having had the traumatic experience of having been in detention for some years. His psychiatric situation improved during that time, as did his sleep. He reported to Dr Weissman in these terms on examination in March 2014.
257 The plaintiff has been unable to return to any work since the incident.[104]
[104]T91
258 As I have already indicated, I am satisfied that the plaintiff has lost the capacity to do unrestricted manual work because of his lumbar condition.
259 Further, I accept that the plaintiff has very little capacity for suitable employment. In addition to his physical restrictions, the plaintiff would have great difficulty reliably attending work because of his back pain, the effects of the heavy medication he is required to take and his need to lie down during the day.
260 The plaintiff’s lack of English would also be a significant barrier to him re-entering the workforce. Whilst an intelligent man, his English is poor. He required the assistance of his brother and a co-worker to communicate whilst he worked for the employer. He requires ongoing assistance with his English from Foundation House.
261 The plaintiff has tried to improve his English with study in 2014 but could not continue the course as he had difficulties with the prolonged sitting involved. I accept he would be unable to study successfully at the present time due also to his problems concentrating with his high level of painkilling medication.
262 A further problem in this regard would be the plaintiff’s psychiatric problems which would make any study difficult.
263 As counsel for the plaintiff submitted, the plaintiff is in “limbo” because of his back injury. His English is poor, he cannot sit to study. Without studying, he cannot return to work as an accountant or undertake any non-manual role which requires further study.[105] He is not computer literate and in any event, would have difficulty sitting working on a computer.
[105]T92
264 Whilst due to the psychiatric problems noted by Dr Al Wahab the plaintiff would have difficulty working, his back condition alone precludes a return to work.
265 Having identified and excluded the continuing consequences for the plaintiff of his psychiatric condition, I am satisfied the consequences properly referable to the compensable lumbar injury are “serious” in terms of pain and suffering and loss of earning capacity. Further, I accept the plaintiff has suffered the requisite loss of earning capacity, as he does not have the capacity to earn in excess of $400 per week for the foreseeable future.
266 As counsel for the plaintiff submitted,[106] Ashley JA in Dressing v Porter& Anor,[107] followed a similar approach to this issue:
“… If, by reason of pain and suffering consequences the compensable injury met the serious injury test, it was beside the point that some other condition might also have satisfied the test by reason of its pain and suffering consequences. … .” [108]
[106]T84
[107][2006] VSCA 215
[108]at paragraph [47]
267 Further, as counsel for the plaintiff also submitted, the present application is different to Peak Engineering,[109] where the Court held the consequences of the compensable injury were not “serious”.[110] In addition, there were some credit issues in Peak Engineering which do not appear in the present application.
[109](Supra)
[110]T84
268 I accept that the consequences of the plaintiff’s impairment are permanent despite the submission by counsel for the defendant that a more holistic approach to treatment might help, as Dr Slesenger noted.[111] Given the chronicity of the plaintiff’s symptoms and the lack of improvement despite a range of treatment to date, any significant improvement or change in the plaintiff’s circumstances is unlikely.
[111]T75
269 I am also required to consider issues of retraining and rehabilitation pursuant to ss(g).
270 Counsel for the defendant did not suggest there was a job that the plaintiff could do, but submitted he had not discharged the burden under ss(g) in relation to retraining and rehabilitation.[112]
[112]T74
271 Whilst Mr Brownbill thought the plaintiff had some capacity to retrain from a physical viewpoint,[113] the plaintiff’s problems with English, his lack of work experience and transferable skills and the effects of his painkilling medication would make effective retraining unlikely.
[113]T74
272 In light of my findings as to the plaintiff’s impairment and his incapacity for employment, I am satisfied there is no rehabilitation or retraining that would be appropriate to be undertaken by the plaintiff which would alter the situation that he has a permanent loss of earning capacity of 40 per cent or more. As rehabilitation and retraining have nothing to offer the plaintiff in terms of his capacity for employment, the plaintiff has satisfied the requirements of s134AB(38)(g).
273 Accordingly, I grant leave to the plaintiff to bring proceedings for damages for pain and suffering and loss of earning capacity.
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