Qarshi v Bowell Corporation Pty Ltd

[2013] VCC 1084

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CIVIL DIVISION

Revised
Not Restricted
Suitable for Publication

DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION

Case No. CI-11-00731

MOHAMMAD IBRAHIM QARSHI	Plaintiff
v
BOWELL CORPORATION PTY LTD (ACN 131 397 076)	Defendant

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JUDGE:	HER HONOUR JUDGE MORRISH
WHERE HELD:	Melbourne
DATE OF HEARING:	22 and 23 August 2013
DATE OF JUDGMENT:	23 August 2013 (oral judgment)
CASE MAY BE CITED AS:	Qarshi v Bowell Corporation Pty Ltd
MEDIUM NEUTRAL CITATION:	[2013] VCC 1084

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Subject:  ACCIDENT COMPENSATION

Catchwords:              Serious injury – injury to the lumbar spine and left leg – pain and suffering damages – loss of earning capacity damages

Legislation Cited: Accident Compensation Act 1985, s134AB

Cases Cited:             Aburrow v Network Personnel Pty Ltd [2013] VSCA 46; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Sutton v Laminex Group Pty Ltd [2011] VSCA 52; Humphries & Anor  v Poljak [1992] 2 VR 129; Transport Accident Commission v Dennis (1998) 1 VR 702; Mobilio v Balliotis & Ors [1998] 3 VR 833; Lu v Mediterranean Shoes Pty Ltd (2000) 1 VR 511; Hunter v Transport Accident Commission [2005] VSCA 1; Meadows v Lichmore Pty Ltd [2013] VSCA 201; Heard v Bronzewing Linehaul Pty Ltd [2013] VSCA 200; Jayatilake v Toyota Motor Corporation Australia Ltd [2008] VSCA 167; Dwyer v Calco Timbers Pty Ltd  (No 2) [2008] VSCA 260; Tatiara Meat Company Pty Ltd v Kelso [2010] VSCA 12; Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Sabo v George Weston Foods [2009] VSCA 242; Sejranovic v Berkeley Challenge Pty Ltd [2009] VSCA 108; Sabanovic v Atco Controls Pty Ltd [2009] VSCA 143

Judgment:                 Application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr I Fehring with Mr C Nettlefold	Ryan Carlisle Thomas
For the Defendant	Mr A W Middleton (Mr Savedra appeared to hear judgment)	Thomsons Lawyers

HER HONOUR:

Introduction

1 By Originating Motion filed 24 February 2011, the plaintiff, Mohammad Qarshi, seeks “an Order of the Court pursuant to s134AB of the Accident Compensation Act 1985 (hereinafter referred to as [‘the Act’]) granting leave to issue common law proceedings for the recovery of damages”.

2       The plaintiff alleges “serious injury” as defined in s137AB(37)(a) and (c) of the Act.  I will say something more about sub-paragraph (a) in a moment. 

3       The hearing commenced before me yesterday (22 August 2013) and continued this morning and directly after lunch (23 August 2013).

4       Mr I Fehring appeared with Mr C Nettlefold on behalf of the plaintiff.  Mr A W Middleton appeared on behalf of the defendant.

Particulars of injury

5       The body functions said to be impaired are the lumber spine and the left leg.[1]  Leave is sought in respect of both loss of earning capacity and pain and suffering.

[1]Plaintiff’s Statement of Issues – exhibit A

6       In his opening address, Mr Fehring, frankly and appropriately, conceded that the preponderance of the medical evidence will not support a finding that the alleged physical impairments qualify as a serious injury.  He pointed out that only one medical witness, the plaintiff’s treating general practitioner, considers that the plaintiff’s injury is physically based, namely in the nature of a prolapse.  All other medical experts consider that any physical injury has all but healed.  That is to say, there was initially a soft-tissue injury but it has all but healed, and if the plaintiff suffers pain in the manner and to the extent claimed, it is due to a Chronic Pain Syndrome or otherwise as a consequence of mental or behavioural factors such as an Anxiety Disorder or a depressive illness.

Background

7       The plaintiff is aged 43.  He was born in Afghanistan, where he was educated to the age of eight or nine years.  He is illiterate.  He migrated to Australia in 2000 at the age of 30.  He is married with five children. 

8       The plaintiff commenced full-time employment for the defendant in July 2001, where he worked as a labourer.  This was the only job the plaintiff has ever had in Australia.  He had limited work experience prior to arriving in this country.

9       The defendant is a manufacturer of fibreglass parts, such as bonnets, roofs and bumper bars.  The duties entailed physical labour on the part of the plaintiff such as using a sander to make parts smooth, and there was other equipment that he later used as well.  He claims he worked overtime, and there is no dispute about that.

10      Insofar as the circumstances of the injury is complained, these are set out in paragraph 7 of the plaintiff’s first affidavit, exhibit B.  He says:

“In about November 2007 I began to notice getting back pain at work.  I particularly noticed this one time when lifting a roof on a trolley to turn it over and the trolley moved causing my back to be twisted.  I also fell to the floor on this occasion.  I was in a great deal of pain but I was able to take myself to the tea room where I was given Panadol by my manager.  I sat around for 2 hours hoping to get back to work but in the end I was sent home by my manager.  When I returned to work I was put on lighter duties and took Panadol.  Then somewhat similarly in May 2008 I was carrying out sanding on a roof mould on a trolley and I needed to flip it over to sand the other side of it.  As I flipped the mould over the trolley moved and I fell and hurt my back.”

11      I will return to the plaintiff’s material shortly.

12      The issues, so far as the plaintiff was concerned, were set out in a document described as “Statement of issues” and it was tendered as exhibit A.  In that document, some of the medical evidence was summarised on behalf of the plaintiff. 

Legal Principles

13      The statutory scheme entitles a person injured arising out of, or in the course of, or due to the nature of, employment on or after 20 October 1999 to compensation.[2] It is not disputed that the prerequisites referred to in s134AB(1) of the Act are met.[3]    

[2]See s134AB(1) of the Act

[3]The plaintiff was injured during the relevant period in the course of his employment with the defendant

14 Section 134AB(1) notwithstanding, a person shall not recover any damages in any proceedings in respect of such an injury except in accordance with the remaining provisions of s134AB.

15      This application is brought under ss(16)(b). 

16 Section 134AB(19) prohibits the Court from granting leave under ss(16)(b) –

“… unless it is satisfied on the balance of probabilities that the injury is a serious injury.”

17      “Serious injury” is defined in ss(37) to mean:

“(a)     permanent serious impairment or loss of a body function; or

…

(c)permanent severe mental or permanent severe behavioural disturbance or disorder.”

18      As I have indicated, Mr Fehring has conceded the application under sub-paragraph (a) will not be made out and has effectively abandoned that part of the application before me.  On the question that I have to consider, namely sub-paragraph (c), the issues really come down to the plaintiff’s credibility and the medical material or expert material that I will accept where it is in conflict.

19      Returning to the legal principles and their interpretation:

·        To be compensable under the Act, the injury sustained must fall within the definition of “serious injury” as defined in the Act;

·         “Serious injury” means “very considerable”;[4]

[4]Humphries & Anor v Poljak [1992] 2 VR 129 at 140; Transport Accident Commission v Dennis (1998) 1 VR 702 at 703 and Mobilio v Balliotis & Ors [1998] 3 VR 833

·        The degree of seriousness of the impairment is to be judged by its consequences to the plaintiff and by comparison with other cases in the range of possible impairments;

·        To qualify as a “serious injury”, the injury must be one that has serious consequences for the plaintiff judged on an objective basis and when judged by a comparison with other cases in the range of possible impairments, it must be capable of being fairly described as at least “very considerable” and certainly more than “significant” or “marked”;[5]

[5]s134AB(38)(c); Lu v Mediterranean Shoes Pty Ltd (2000) 1 VR 511 at paragraph [15]; Humphries & Anor  v Poljak (supra) at 140-1

·        Assessment of consequences requires a comparison of the plaintiff’s before and after position.[6]  This is not a case in which aggravation of a pre-existing injury is claimed.  The plaintiff does concede that there was some earlier experience of back pain, but I accept that the evidence demonstrates any pre-existing conditions did not significantly impact upon the plaintiff at the time he sustained his workplace injury, the subject of these proceedings;

[6]Humphries & Anor v Poljak (supra) at 136; Hunter v Transport Accident Commission [2005] VSCA 1 at paragraph [34]

·        The time for assessing whether the injury is “serious” is the date at which leave is decided;

·        Any impairment or loss of body function must be permanent; that is, at least extending beyond a few years or likely to persist into the foreseeable future;

·        Distinction is to be drawn between the language used in sub-paragraphs (a) and (c) of ss(37).  Subparagraph (a) concerns impairment or loss of a body function.  In such a case, the impairment or loss of body function must be “serious” or “permanent”.  Sub-paragraph (c) is concerned with mental or behavioural disturbance or disorder.  To be considered a “serious injury”, the condition must be “severe” and “permanent”.  The use of the word “severe” in sub-paragraph (c) betokens a change in meaning and should be treated as stronger in terms of significance or gravity;[7]

[7]Mobilio v Balliotis & Ors (supra) at 834-5, 846, 854

·        The psychological or psychiatric consequences of a physical injury are to be taken into account only for the purposes of sub-paragraph (c) and not otherwise;[8]

[8] Section 134AB(38)(h)

·        The physical consequences of a mental or behavioural disturbance or disorder are to be taken into account only for the purposes of sub-paragraph (c) of the definition and not otherwise;[9]

[9]Section 134AB(38(i)

·        Care must be taken when the plaintiff’s claim of pain and suffering is based on a Complex or Regional Pain Syndrome.  The plaintiff must tender evidence that establishes whether the condition is substantially physically or organically-based, in which case it will fall to be determined under sub-paragraph (a), or whether it is a consequence of a mental or behavioural disorder, in which case it falls to be determined under sub-paragraph (c);[10]

·        Sometimes a degree of “disentanglement” will be required, particularly when the condition is as a result of combined physical and psychological factors or components.[11]

[10]Meadows v Lichmore Pty Ltd [2013] VSCA 201; Heard v Bronzewing Linehaul Pty Ltd [2013] VSCA 200

[11]Jayatilake v Toyota Motor Corporation Australia Ltd [2008] VSCA 167 at paragraphs [24]-[29]; Meadows v Lichmore Pty Ltd (supra) at paragraphs [19] and [29]

20      Mr Middleton raised a question as to whether or not there is evidence of this combined problem of physical and mental factors or components and claimed that the plaintiff had not sufficiently disentangled which are the consequences of the physical and which are the consequences of the mental or behavioural issues.  I think there is sufficient evidence before me that enables me to determine what the consequences are under sub-paragraph (c).

The Plaintiff’s case

21      The plaintiff’s counsel, as I say, concedes there is no serious organic injury such as might disable the plaintiff from working or such as might account for his claimed level of pain and consequent physical restriction.  Pain is subjective.

22      

In Aburrow v Network Personnel Pty Ltd and WorkSafe Victoria,[12] the Court referred to a passage in the judgment of Maxwell P in

Haden Engineering Pty Ltd v McKinnon

.[13]

[12][2013] VSCA 46

[13](2010) 31 VR 1

23      In paragraph 10 of the judgment, the Court noted, and again citing from Haden, that:

“… it is of assistance in reviewing a body of evidence like this — for the purpose of evaluating the ‘pain and suffering consequence’ of an injury — to distinguish between:

•    the plaintiff’s experience of pain as such; and

•    the disabling effect of the pain on the plaintiff’s physical capabilities (including capacity for work) and enjoyment of life.”[14]

[14]Aburrow v Network Personnel Pty Ltd (supra)

24      I should indicate here that the major component of the plaintiff’s claim is a claim of debilitating pain such as to restrict him to such an extent that almost every aspect of his daily life is compromised and, in any event, to the extent he has no earning capacity.

25      In the authorities to which I have just referred, the Court of Appeal has made it clear there are no rigidly separated categories.  For example, evidence about the disabling effect of the pain may enable inferences to be drawn about the intensity and frequency of the pain and vice-versa but the distinction remains important for the purposes of the pain and suffering assessment.

26      Turning to the experience of pain as such.  At paragraph 11 of the judgment, again the Court of Appeal adopted the approach suggested in Haden as endorsed in Sutton v Laminex Group Pty Ltd.[15]

[15](2012) 31 VR 100

“The experience of pain

[10]As to the experience of pain as such, the court must assess the intensity of the pain which the plaintiff experiences.  For this purpose, pain intensity is often classified on the scale ‘mild/moderate/severe’.  Unless the pain is constant, the court will need also to assess the frequency and duration of the pain episodes.

[11]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);[16]

(b)what the plaintiff does about the pain (eg medication, rest, seeking medical treatment);[17]

(c)what the doctors say about the extent and intensity of the plaintiff’s pain;  and

(d)what the objective evidence shows about the disabling effect of the pain.[18]

[12]As to (a), 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.[19] The court will make its own assessment of the plaintiff’s credibility if he/she gives evidence,[20] and will also take into account views expressed by examining doctors about the reliability of the plaintiff’s accounts of pain.[21]

[13]As to (d), the cases recognise that some plaintiffs may be more ‘stoical’ than others.  This means that such a plaintiff is, to an unusual degree, prepared to endure pain in order to maintain a desired level of function.  The injury suffered by the ‘stoical’ plaintiff is not to be viewed as any the less serious merely because he/she manages to remain more active than might have been expected given the level of pain.[22]  In such a case, the ‘objective’ evidence of the disabling effect may be of less significance than usual.”[23]

[16]Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260, [24]; Tatiara Meat Co Pty Ltd v Kelso [2010] VSCA 12 at paragraph [48]

[17]Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292 at paragraphs [13], [26], [33]–[34]; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181 at paragraph [48]; Sabo v George Weston Foods [2009] VSCA 242 at paragraph [70]; Tatiara Meat Co Pty Ltd v Kelso (supra) at paragraphs [50]–[55]

[18]Sejranovic v Berkeley Challenge Pty Ltd [2009] VSCA 108 at paragraph [171]

[19]Dwyer v Calco Timbers Pty Ltd (No 2) (supra) at paragraph [8];  Sejranovic v Berkeley Challenge Pty Ltd (supra) at paragraph [171];  Sabanovic v Atco Controls Pty Ltd [2009] VSCA 143 at paragraphs [142]–[145]

[20]Dwyer v Calco Timbers Pty Ltd (No 2) (supra) at paragraph [8];  Sabanovic v Atco Controls Pty Ltd (supra) at paragraph [145]

[21]Sabanovic v Atco Controls Pty Ltd (supra) at paragraph [142]

[22]Dwyer v Calco Timbers Pty Ltd (No 2) (supra) at paragraph [3] (Nettle JA)

[23]Haden Engineering Pty Ltd v McKinnon (supra)

27      Turning to the observations of the Court of Appeal on the subject of sub-paragraph (d), this is not a case where “stoicism” is alleged.

28      In Haden, as I say, there were a number of factors that were identified for the assistance of a court making assessments as to the consequences of pain and suffering.  As to the capacity for work, it is necessary to identify whether, and to what extent, the plaintiff is prevented by the pain from performing the duties of his previous employment.

29      In Haden, Maxwell P stated:

“The disabling effect of pain

[14]As to the disabling effect of the pain, it is necessary to identify the extent to which the pain limits the plaintiff’s physical functioning, and interferes with the plaintiff’s enjoyment of life. As this court (per Ashley JA) said in Dwyer (No 2): ‘… [I]mpairment is concerned with what has been lost.  But the significance of what has been lost … may be informed, to an extent, by what is retained’.”[24]

[24]Dwyer v Calco Timbers Pty Ltd (No 2) (supra) at paragraph [27];  see also Stijepic v One Force Group Aust Pty Ltd (supra) at paragraph [44]

30      To summarise what was said in Haden, capacity for work aside, the Court must also consider the effect on the plaintiff’s sleep, mobility, cognitive function, capacity for self-care and self-management, performance of household and family duties, recreational activities, social activities, sexual life and enjoyment of life.  Whether and to what extent the matters listed are relevant to the Court’s task in a particular case will depend on the circumstances.

31      I have taken all of these factors into account; they are referred to in the materials that have been filed on behalf of the parties.

32      On this issue of pain and suffering consequences, the plaintiff’s case largely depends on his credit.  The material tendered raises whether the plaintiff has accurately reported the extent of his pain and disability.  Some experts raised the question of whether the claims are genuine.  This is because objective testing, in some instances, does not support the claimed limitations.  I will refer to these.

33      Further, there is surveillance material which depicts the plaintiff doing activities which are apparently beyond his claimed limitations at the times, or relatively proximate to the times he claims these limitations, and seriously calls his credibility into question.  In any event, they are apparently inconsistent with the symptoms described by the plaintiff.  I shall discuss these reports in more detail.

The Plaintiff’s evidence

34      I have touched upon the plaintiff's first affidavit.  In that affidavit he sets out his background, education and work experience.  I have already summarised this.  I have summarised the circumstances of his injury.

35      Insofar as treatment following his injury is concerned, this is set out in paragraph 9 of the plaintiff’s first affidavit, where he says, after the onset of his back pain, he initially took Panadol; he saw his treating doctor, Dr Window; he had a CT scan of his lumbar spine in January 2008; he then commenced taking Nurofen for pain-relief.  His pain persisted.  He was referred to Mr Mark Patrick, rheumatologist.  He had a fact joint injection – as I understand, this was a cortisone injection on 10 December 2008 but he claims it did not really assist.

36      The plaintiff also attended the Epworth Rehabilitation Program in Dandenong on five or six occasions but he was assessed as not being suitable for a pain management program.

37      In the affidavit, the plaintiff described his consequences of injury.  He said that:

“I now have constant low back pain and this pain increases with activity.  My back gets very painful if I sit or stand in one position for extended periods of time and I cannot walk very far.  Movements involving bending and twisting aggravate the pain and I cannot lift heavy weights.  I get pain in both legs, now more so in the left leg.  I get a numbness felling in my left leg going down to the toes.  This numbness makes my leg feel like wood or a rock.  Sometimes my left leg feels as though it is going to give way.  On occasions I also get pain extending further up my back to the middle of the shoulder region, to my back and down to the left arm. 

Because of back pain, I do not drive as much now and my wife often drives me about.  I now sleep poorly due to back pain.  I felt I was progressing well in Australia, and now I get very upset when I think about my future … .

As indicated I have a young family.  I get upset because the back injury prevents me from freely playing with my children and doing many things with them.  I am now very inactive, however sometimes I will drive my children a short distance to school.  I am a practicing Muslim and the back injury even affects how freely I can go to the Mosque and my praying positions.”[25]

[25]Exhibit B, Plaintiff’s Court Book (“PCB”) 26-27

38      I should state that this affidavit was sworn on 15 October 2010.  Only two months earlier, the plaintiff was seen in surveillance videos.  Surveillance videos were taken of the plaintiff on 4 August 2010, just two months prior to the affidavit, and on 6 August 2010, and also 8 April 2010.

39      I think it is pertinent to point out here what the video depicts.  The video was tendered as exhibit 1.  The video was played in open court and the plaintiff was asked questions about it.  The video of 4 August 2010 was of approximately 10 minutes’ duration.  In it, the plaintiff was seen to walk to a car; he gets in; he appears to move in the car, forward and back, with relative ease.  He drives off.  He is also seen pushing a pram or a trolley of some sort.  At about 1.30pm, he uses his left leg to release and lower the pram or trolley.

40      On 6 August 2010, at about 10.30am, the plaintiff is seen at a ticket type machine.  He walks off slowly without any apparent difficulty.  At 10.42am, he is seen to hose his car.  He moves without apparently difficulty.  He does not drag his leg and there is no obvious limp; however, the footage does not show him doing much bending forward at all.

41      At 11.13am, the plaintiff is seen to exit a car.  He bends with no obvious difficulty.  He is then seen to push a white car.  He demonstrates no real difficulty in walking.  He has his head under the bonnet.  At 11.33am, he is filling another car with petrol.  There is little difficulty in walking, although I agree with Mr Fehring that the video does show some signs of a slight limp.

42      At 12.55 and 12.56pm, there is a slight limp shown.  At 12.59pm, there is slow walking with a slight limp.  At 2.50pm the plaintiff arrives in a taxi. 

43      On 8 April 2010, the plaintiff is at a sandwich bar.

44      The reason I have summarised what is seen on the video is because it is obviously an important consideration when assessing the plaintiff’s report of pain and disability and measuring that with the objective signs to see whether or not there is objective evidence that supports or contradicts that claim.

45      The plaintiff’s claim in paragraph 10 of his affidavit of 15 October 2010[26] that “movements involving bending and twisting aggravate the pain and I cannot lift heavy weights” does not sit comfortably with what is seen on the video of him pushing the car, or the other activities for that matter, although I would agree with Mr Fehring that the other difficulties are of less significance in this case.

[26]Exhibit B, PCB 26

46      I should say, perhaps while I am on the subject, that I raised this issue with the plaintiff at the conclusion of his evidence, namely the apparent conflict between what is in the affidavit material and his sworn evidence, and what is observed in the video.  I should say that my observation of the plaintiff when he gave his sworn evidence – I think I described it as “laboured”.  He was dragging his leg.  He moved deliberately and slowly.  I will find the exact passage in the transcript, where I discussed what I saw, with counsel, but in any event, returning to my questions of the plaintiff in this subject matter, I asked:[27]

[27]Transcript (“T”) 42

Q:“Did you take your painkilling medication today?---

A:Yes. 

Q:What did you take today?---

A:Panadol Osteo, Codofen Forte, Nexium.

Q:What time did you take those tablets?---

A:Eight o’clock.

Q:Today, when you got into the witness box, you were limping very badly and dragging your leg?---

A:Yes.

Q:And you’ve been sitting in the witness box, you’ve been rocking backwards and forwards?---

A:Yes, it’s due to that I’ve been sitting here for too long.

Q:Do you prefer to stand?---

A:Yes.

Q:Well please stand if that’s what you prefer?---

A:It doesn’t take the pain away but it will change the circumstance.”

47      I might interpose here and say that the plaintiff did not actually stand, although invited to.

Q:“On the video I did not see you dragging your leg on any occasion?---

A:It was 2010.

Q:And I did not see you rocking backwards and forwards?---

A:Yes.

Q:Can you explain why your appearance today is so different than the video?---

A:First, it was three years ago and the pain gets worse.  It’s because from the time I have woken up and get here I have basically done a lot of activity, a lot of movement.  That’s the reason the effect of the medication goes away after a while.

Q:The last thing I wanted to ask you was Mr Middleton asked you some questions about whether you’d ever been to a psychiatrist for treatment?---

A:2009 I went to the pain management and they also had all sort[s] of specialists’ care.

Q:Are you under the care of a psychiatrist now?---

A:No.

Q:If your doctor recommended that you see a psychiatrist for treatment, would you do that?---

A:Yes, I’ll have to see them and it suggests a few times to see them but it costs money and I don’t have the money.”

48      The transcript reveals that there was discussion between myself and counsel as to what was seen on the video and what I should make of it, but to the extent there is a claim of inconsistency, because I am not comparing apples with applies, I am looking at 2013, the plaintiff’s presentation today as compared with his condition in 2010 when the video was taken but, as I have attempted to explain, the description of his limitations, in my view, do not seem to sit comfortably with the claimed limitations as early as October 2010.

49      Turning to the second affidavit, exhibit C.  The plaintiff says he has not had any other specialist treatment.  He says he is taking Codofen Forte, Panadol Osteo, Endep, Valium and Nexium on a daily basis and he continues to wear a back support because of ongoing pain.  He says that the pain never goes away and if he does too much or turns in the wrong direction, the pain will increase.  He claims squatting, bending and twisting are very difficult, and he has to be careful.  He says he also gets left leg pain and on occasions the pain spreads to his upper back and shoulders and the pain can be quite severe on occasions.

50      The plaintiff claimed that his sleep is affected and he is lucky to get 3 or 4 hours’ sleep a night.  Some nights he hardly sleeps at all.  He claims he can only lift 1 or 2 kilograms without having increased pain in his back.

51      The plaintiff’s driving ability is limited to 10 or 15 minutes.  His walking limits are also very confined or restricted.  He says:

“My condition hasn’t changed now in many years, to some extent it’s getting worse because the back pain is more severe over the last 6-12 months.  I think I also get more bad days although I never have a really good day and the pain never goes away particularly in my lower back.”[28]

[28]Exhibit C, PCB 30

52      He further said:

“I have no capacity to engage in any employment given my physical restrictions and the pain I am in.  …  I have not had any retraining or rehabilitation and I don’t really see what that could do for me given my current difficulties.”[29]

[29]Exhibit C, PCB 31

53      A question arose as to whether or not the plaintiff had ever pressed the defendant for funding for psychiatric or psychological treatment, and a number of documents were tendered in that regard.  I do not know that that is of huge significance in this case other than to say that the plaintiff is not currently under the care of a psychologist or psychiatrist.

54      I have mentioned the plaintiff was cross-examined about his credit.  I do not particularly wish to summarise all of the cross-examination other than to say the thrust of the cross-examination was to point to inconsistencies between the plaintiff’s claims and the objective material and further, to point out that if he is as disabled and in as much pain as he claims, one would expect more in the medical or clinical notes as tendered.

55      The plaintiff’s case consisted not only of his evidence but also of a number of exhibits, all of which I have read and taken account of.  I will not read the entire list of exhibits into the transcript, however have appended them to these Reasons for Judgment as Annexure A.  So take as read the plaintiff’s list of exhibits.

56      

It is worth, however, now going through some of those exhibits in a little detail. 

Mr Fehring urges me to place considerable weight on the affidavit of the plaintiff’s wife, Sima Qarshi.  Her affidavit was sworn on 24 July this year.  Importantly, she says, since the plaintiff has suffered his injury, he has changed.  He suffers pain every day.  He often gets upset, agitated and picky.  His pain is usually worse by the end of the day, and she confirms that the plaintiff takes painkillers and has physiotherapy twice a week.  I am not sure that this is borne out by the current material.  Mr Fehring is conceding that that is so.

57      She says the plaintiff has difficulty sitting.  He has to move after 20 or 30 minutes.  He has difficulty sleeping.  His medication lasts for an hour.  That is, I take it to be the sleeping medication.  After that, he wakes up.  He has difficulty lying down.  He sleeps on the floor and he is often tired.

58      On a normal day, she claims the plaintiff takes painkillers with his breakfast and then usually spends the day trying to sleep and rest.  Sometimes he gets very upset and frustrated.  He leaves the house without saying where he is going.

59      Mrs Qarshi claims that the plaintiff has difficulty taking care of himself, that he cannot stay in the shower for too long and she often has to help him in the shower.  She has to help him put his pants and his jacket on.  “He tries to do things by himself,” she says, “I usually have to help”.I point this out, because it would appear that in some of the medical examinations the plaintiff was able to move with apparently more freedom than Mrs Qarshi would have me accept.

60      It is true that Mrs Qarshi was not required to attend for cross-examination and I take that very much into account, but equally, I cannot ignore the other objective evidence that has been tendered, actually by the plaintiff, that may tend to contradict the evidence of Mrs Qarshi.

61      The plaintiff was treated by his general practitioner, Dr Window, at Langton Medical Centre.  The first report prepared by Dr Window is exhibit G.  This refers to the facet joint injection, and, at that time – that is in November 2009 – Dr Window described the plaintiff’s condition as:

“… a minor lumbar injury, presumably caused by bending over and lifting materials.  He had back pain previously and now has developed severe Chronic Pain Syndrome and is now incapable of working as a result of this.  Rehabilitation has failed, and further treatment would be a waste of time as the patient is preoccupied with his problems.  I do not if the performance I see in the room is actually a true reflection of his movements at home.”[30]

[30]Exhibit G, PCB 34

62      Exhibit H is a report prepared by Dr Window on 20 August 2010 and the reason I wish to refer to this in the judgment is because it is proximate in time to the surveillance material to which I have referred and particularly, the surveillance showing the plaintiff pushing the car and washing his own car.

63      On 20 August 2010, approximately two weeks after this episode, Dr Window wrote:

“Since my last report there has been no change whatsoever in

Mr Qarshi’s condition.  He still limps, holds his back, complains of severe pain and there does not appear to be anything happening. 

As a result of his failed rehabilitation at Epworth, it was pointless sending him for further physiotherapy.  He complains of varying symptoms in his left leg, however there is nothing overtly obvious as to why he has these symptoms. 

I have not made any further referrals to specialists.”

64      While I am on the subject of Dr Window, it is also worth cross-referring to the clinical notes taken at around or at the time this report was prepared.  According to the clinical notes, exhibit 3, the plaintiff was first prescribed Endep on 19 May 2009.  His first prescription for Valium was on 10 July 2009.  The entries in the clinical notes indicate that the condition of the plaintiff is essentially unchanged in most of the period leading up to October 2010.

65      On 10 October 2009, the clinical notes – I think this is not Dr Window’s observation but Dr Trevor Adcock’s observation, “Seen in JW’s” – presumably Dr Window’s absence –

“Patient says has worse lumbar pain, says this radiates down left leg.  Does not feel he can return to work due to pain. 

Examination:

Very slow gait, flexion: hands to just below knees, causes lumbar pain.

…

Friday 6 November 2009

No change, walks slowly, broad base[d] limping, difficulty standing … .

…

Friday 13 November 2009

Medical report to Shine Lawyers. 

…

Monday November 23 2009

Talk re job employment.”

66      I should indicate that I have not referred to every single entry. 

67      I will jump then to 1 March 2010:

“WC [WorkCover] cert 30/03/10 increasing pain numbness L5 distribution right leg.

Monday March 29 2010

Pain in the right leg numbness.

…

Monday May 3 2010

wc cert 25/05.10 pain less in right leg numbness lat aspect right foot.

…

Tuesday June 22 2010

WC cert 20/7/10 chronic lumbar back pain no better limping.

Wednesday July 21 2010

WC cert 17/07/10 neck pain headache.”

(sic)

68      That is the last entry before the surveillance footage of 4 and 6 August 2010.  The next entry is 17 August 2010 when the plaintiff attended with a cough or a wheeze.  The next entry is 20 August 2010 and it does not appear that there was an attendance.  Rather, this was for the purposes of a report to Shine Lawyers.  I have just referred to exhibit H.  I do not think the parties disagree that exhibit H is that entry at 20 August 2010.

69      The next entry is 21 September 2010:

“Chronic pain syndrome started with low back pain.”

70      The next report prepared by Dr Window is exhibit J, in which he describes there has been no further active treatment.  He describes the medication, and Dr Window considered that the plaintiff did not have a capacity for work at the moment and he considered him to be unsuitable for any positions available which may eventuate.  He said:

“… I do not think this man will ever return to his former employment.

Because of his chronic pain syndrome his lifestyle abilities to perform normal activities on a daily basis is totally prevented.  Since 2009 there has been no letters from treating specialists, nor any investigations performed.”

71      One thing is clear and that is that Dr Window did not see any of the surveillance material and has not been asked to comment upon it. 

72      Exhibit K was the report from the plaintiff’s new treating general practitioner, Dr Said Mirranay.  The medications that the plaintiff takes are set out and I will not repeat them.  Exhibit K was dated 27 May 2013.

73      Exhibit L is an update from Dr Mirranay.  He is the one who comments on the diagnosis of a disc prolapse.  He has the injury as a physical one and the consequences being physical, but he has not seen the video surveillance either and therefore has not commented on it.

74      Dr Patrick, exhibit M, 13 January 2010, so this is prior to the surveillance video.

“Clinical examination revealed excellent range of back movement with full spinal function and no significant myofascial overlay or pain amplification.  Straight leg raising was normal and slump test was intact.  He had no focal neurological deficits in the lower limbs.”

75      An MRI scan was organised.  Essentially, Dr Patrick opined that the diagnosis was of lumbar spondylosis mechanical pain with muscular overlay.  Dr Patrick was not shown the video.  The updated report sheds little additional light.

76      Exhibit O, this is a report of Dr Albert Kaplan, psychiatrist.  This report was prepared on 17 August 2010 and the consultation was on 16 August 2010, only 10 days after the plaintiff was seen on the video pushing the car.  The plaintiff described to Dr Kaplan that he experiences constant low-back pain which radiates down his left leg into his small toe.

“…  The pain is aggravated when he sits, stands or walks for prolonged periods of time, and by bending and lifting.  When he experiences severe episodes of pain, he develops pain in his neck, left shoulder and left arm.  If he sits for prolonged periods of time, he develops an area of numbness in the back of his left leg and his toes.  His pain is gradually increasing in severity with the passage of time.

Mr. Qarshi stated that his oldest son assists him by doing the gardening, and he receives some assistance from friends. 

… He has lost confidence because “I can't do anything’.”

77      The plaintiff did not disclose that only 10 days beforehand, he had been driving, washing his car and had been pushing a friend’s car to assist to have the battery started.  On this occasion, the presentation was a man in considerable physical discomfort and pain, who chose to sit on a high-back chair, leaning to his right, and at one stage he stood up in an apparent attempt to ease his discomfort and he walked with a limp.  Dr Kaplan considered that the plaintiff’s thinking was characterised by a pre-occupation with his injury and its impact.

78      There is reference in this report to some physical component of the problem but I do not know that it is a factor really taken against the plaintiff.  I consider that Dr Kaplan’s conclusions and observations again must be guarded, in the sense that presentation does not appear consistent with what was seen on the video proximately in time.

79      The next report relied upon by the plaintiff is from Mr Brendan Dooley, orthopaedic surgeon, dated 14 October 2010.[31]  Mr Dooley saw the plaintiff on 14 October 2010, again within two months of the surveillance video.

[31]Exhibit P, PCB 54

80      The physical evaluation is set out at page 2 of that report:

“Clinical evaluation reveals marked limitation of lumbosacral movements in all directions with no obvious evidence of muscle spasm.  Straight leg raising of the left leg is limited to 10^o only causing back pain.  He is able to sit upright with both legs extended.  In both lower extremities there was no neurological deficit present with no obvious muscle wasting or weakness, although he would not actively extend or flex his left ankle or foot, but he had normal passive movements.  He also claimed numbness over the dorsum of the left foot extending into the lateral four toes.  The ankle and knee reflexes were normal.  The arterial circulation to both legs is normal.  He has no signs of radiculopathy affecting either leg."

81      As to diagnosis, Mr Dooley considered that:

“…  [The plaintiff] … suffers from soft tissue injury to the lumbo-sacral spine with referred pain to the left leg but with no signs of disc rupture or protrusion, and with no signs of nerve root compression at either the L4-5 level of lumbo-sacral level in the lumbo-sacral spine.  The major problem here is the marked psychological reaction with anxiety, depression and development of a chronic pain syndrome which has proved recalcitrant with all forms of conservative treatment.  … .”

82      Mr Dooley said that the plaintiff was unable to do any work around the house and he cannot walk for even short distances.  All of his normal activities of daily living are heavily restricted but he is able to go to the toilet, shower and dress himself slowly.  I have taken some time in describing what is in this report again because it is proximate to the surveillance video and, in my assessment, does not sit comfortably with what is on the video.

83      Exhibit Q was a report from Mr Richard Pease, orthopaedic surgeon.  He examined the plaintiff on 13 February 2012.  He described the plaintiff as entering the consulting room with a marked stoop and a limp, often holding onto fixed items such as a door frame.  The plaintiff was asked to remove his clothes.  There was apparently some confrontation and then afterwards, Mr Pease observed the plaintiff take his clothes off in a somewhat laboured and unusual manner.  Laying prone on the examination couch, there was no obvious deformity.

84      Mr Pease described the physical examination and how that sat with the claims of pain. 

“On palpation, he complained of nonorganic tenderness extending from the whole of his left leg, through his buttock, lumbar and thoracic regions and into his neck.  There was no muscle spasm, he was positive to skin pinching.  There were no similar signs on the right side.  Sensory testing in this region demonstrated nonorganic loss of sensory perception to sharp touch.  His straight leg raise was reduced to 30^o on left side formally, which improved to almost 90^o informally.  There was no measurable wasting in either leg, his deep tendon reflexes brisk and equal.

I observed spurious weakness in the whole of his left leg.  His arterial pulses appeared normal, there was no evidence of any oedema.  … He was mildly positive to Waddell and Kümmel functional indicators.

…

This gentleman's presentation is grossly functional.  I am not able to determine whether he is consciously or subconsciously fabricating symptoms and/or malingering.  What I think can be stated without equivocation is that a minor low lumbar injury would not give rise to the generalised complaints with which he presents.  Furthermore, there is no evidence on physical examination of any significant underlying pathology.”[32]

[32]Exhibit P, PCB 60

85      Mr Pease said the plaintiff may have sustained a minor soft-tissue injury but the plaintiff’s reported disabling complaints, in his opinion, are functional and not based on any underlying residual injury.  He said:

“I am not convinced that he has a physical disability which would prevent him from working.  However his abnormal reaction to injury and possible underlying malingering would be a cogent factor in preventing him from returning to gainful employment. 

I believe that, with appropriate treatment, he would have a physical capacity for work.”

86      Mr Pease was not shown the video. 

87      Associate Professor Owen White, neurologist, was also not shown the surveillance video but noted the plaintiff complained of constant low-back pain radiating up the thorax of left shoulder and neck, and down the left leg.

88      On physical examination, Professor Owen considered that:

“There was evident with (sic) pain related behaviour.  He was clearly uncomfortable throughout the interview and the examination.  Despite his complaints of lumbar and cervical pain, there was no evident muscle spasm or focal tenderness.  There was a full range of cervical movement and minimal limitation of lumbosacral movement although he was tentative with all movements.  The neurological examination of the upper and lower limbs was normal notwithstanding the fact that he had some complaints of numbness in the feet that could not be categorised anatomically.”[33]

[33]Exhibit P, PCB 65

89      In short, Professor Owen opined that the plaintiff’s complaint was not physically or organically based and that psychological counselling was perhaps indicated.

90      The plaintiff places considerable weight on the expert report of Dr Michael Epstein, psychiatrist.  See exhibit S.  I have discussed this exhibit in some detail with counsel but it is important to note that amongst all the materials that Dr Epstein had reference to, he did not have the surveillance videos.  All he had was second-hand reports of what was depicted, for example in the report of Dr Anthony Sheehan, consultant psychiatrist, and according to the plaintiff’s own description of what was seen on the video.

91      Taken to what was seen on the video, apparently Dr Epstein took this up with the plaintiff.  See page 7 of the report:

“The worker said that there were three videos.  He said that on the first video he was seen washing his Toyota Prado using a hose.  He denied that he was hand washing the car.  He said the second video showed him getting into his car holding on to the roof rack.  He said the third video was of an incident when his wife was driving and her car had stopped.  He borrowed a friend’s car and drove to where his wife was parked.  He used the battery on his friend’s car to jumpstart his own car.  He said he had no memory of pushing either car.”[34]

[34]Exhibit S, PCB 73

92      This description does not actually match what is on the video because the plaintiff is seen pushing the other car and using his own car to start the battery of the friend’s car.  Furthermore, it is in conflict with the evidence that he gave before me that on that day to the effect his wife was sick.  He told Dr Epstein that he had no memory of pushing either of the cars and was unable to comment on it, that is, the plaintiff was unable to comment on it or offer any explanation as to why he would be able to do such a thing.  Dr Epstein did not comment on it either.

93      Dr Epstein did note that the question had been raised in the documentation about the plaintiff’s credibility and he said “I am unable to comment on that,” although there was nothing the plaintiff did during the course of the interview that indicated his credibility should be in doubt.  He considered the plaintiff to be essentially unemployable, and stated:

“… He does not have the capacity to perform his pre-injury duties.  … he does not have any capacity for suitable employment.”[35]

[35]Exhibit S, PCB 76

94      The next psychiatrist upon which the plaintiff places great reliance is Dr M Nathar, exhibit T.  Reference is made in this report to the reports of Dr Sheehan in which Dr Sheehan essentially described a Chronic Adjustment Disorder with Depressed and Anxious Mood of mild severity.  I will come to Dr Sheehan’s report a little later, but it is fair to say Dr Sheehan did make that diagnosis before he saw the surveillance video, and after seeing the surveillance video, there was nothing he saw on the videos that caused him to alter his opinion, but I should note that whatever the condition was, it was only considered to be of mild severity.

95      In any event, returning to Dr Nathar, he observes there has been video but there is nothing to suggest Dr Nathar had access to the video himself.  He said that the plaintiff said he virtually does nothing physical these days and his wife does all of the heavy lifting.

96      

Dr Nathar referred to the compromise to the plaintiff’s sex life.  There was no

cross-examination on this subject and I am prepared to take at face value there has been some compromise in that regard.  He considered that the plaintiff was mildly anxious and depressed.  He said, in terms of diagnosis, the plaintiff suffers from two inter-related conditions: an Adjustment Disorder with Anxious and Depressed Mood and he has presented with sufficient symptoms of Anxiety and Depression at a pathological level.

97      On the question of whether there was conscious or unconscious elaboration of symptoms, Dr Nathar said:

“As a psychiatrist it would be next to impossible to decide whether there is any basis for conscious exaggeration; that is, malingering.”[36] 

[36]Exhibit T, PCB 84

98      The surveillance material would appear not to support any conscious exaggeration on the basis of Dr Sheehan reporting that the surveillance materials were not inconsistent with the history obtained.

99      I pause here to note that I do not consider it to be a sound conclusion reached by Dr Nathar, since Dr Nathar has not seen the video itself, and I do not think there is anything inconsistent by what Dr Sheehan has described by way of a diagnosis and what was on the video.  Since Dr Sheehan’s opinion, as I will later summarise, is that there is not a physical problem that prevents the plaintiff’s movements, it is not organically-based.  If there is a condition, it is of mild severity.  In that regard, presumably with a mild condition with no physical component moving a car, it is not out of the ordinary.

100     There is imaging evidence.  I will not discuss that in any detail.  It is not disputed that there was initially some physical component, but it has now healed.

101     A report was prepared by Ms Louise Meilak, human resources consultant, exhibit Y, concerning alternative suitable employment.  I will not go through the entirety of that report, other than to say there is analysis of materials that were available to the author and an opinion that essentially, the plaintiff has no current capacity for work at all.

102     A vocational assessment report was prepared by Ms Katrine Green, vocational assessor, exhibit Z.  She also comes to the conclusion that the plaintiff is essentially unemployable in any capacity.

103     

The taxation summaries of the plaintiff were tabulated and are contained in

exhibit AA.  There is no challenge to that evidence.

The Defendant’s case

104     No viva voce evidence was called.  A number of exhibits were tendered.  I have already referred to some exhibits.  The full list of exhibits is appended to these Reasons for Judgment.

105     I have already referred to the clinical records, exhibit 3, but I do wish to refer to some of the expert reports tendered on behalf of the defendant.  Both parties are essentially relying on that material.  It seems to me Mr Daryl Nye, neurosurgeon, provides insightful evidence.  His first report is 15 July 2009, exhibit 5.  This is obviously before the surveillance; it is a year before the surveillance evidence is conducted. 

106     Mr Nye considered that:

“During interview and examination pain behaviour was obvious with slow mobilisation with … [the plaintiff] … holding onto his back.  Formal examination revealed normal spinal posture with retained lumbar lordosis.  There was no spasm of paravertebral musculature at any spinal level.  Thoraco-lumbar movement was assessed and flexion was achieved to 50^o and extension 20^o with a similar range of lateral flexion to each side, rotation was executed to 30^o to the right and the left.  Ability to stand on the toes and heels was confirmed.  … [The plaintiff] claimed straight leg raising limited to 45^o on each side, however at the conclusion of the assessment ability to sit to a right angle with legs outstretched on the examination couch was demonstrated.  The neurological examination revealed retained symmetrical lower limb reflexes and there was a non-anatomical impairment of pin prick appreciation affecting the whole of the left leg and the left half of the body and to the level of C2, a finding clearly without organic explanation.

…

CONCLUSION

Following my examination of the above I came to the conclusion that in a work related incident a minor strain injury to the back may have been sustained.  I am of the opinion that the consequences of this minor injury would under ordinary circumstances naturally and completely quickly resolve. 

The investigations do not indicate the presence of any significant spinal condition, and it is regrettable that the subject is under the impression that he has lumbar disc pathology, and this has been reinforced by inappropriate interventional treatment.  There is evidence of functional overlay, and to the point of suspecting abnormal illness behaviour.”[37]

[37]Exhibit 5, DCB 11 and 12

107     On 9 September 2010, Mr Nye wrote a further, report, exhibit 6.  This is as a result of an examination roughly one month after the surveillance video was taken after the pushing of the car.  On that occasion, the plaintiff claimed his condition had worsened with pain extending to the back, to the left leg and also ascending to the shoulder and neck regions associated with posterior headache and inability to raise the head from a pillow.  Symptoms were said to be worse in cold weather.  However, during interview, Mr Nye noted that the plaintiff sat and constantly rubbed the left thigh region, slow mobilisation was evident favouring the left leg, ability to undress and redress and get into an examination couch without assistance was noted.

“… Formal examination revealed normal spinal posture with retained lumbar lordosis, there was no spasm of paravertebral musculature in the lumbar region.  Thoraco-lumbar movement was assessed and on this occasion flexion achieved to 40^o and extension limited to 5^o with 15^o of lateral flexion to each side, rotation was executed to a normal 30^o to the right and left.

Ability to stand on the toes and the heels was confirmed, and the plaintiff claimed straight leg raising to be limited to 5^o on each side, and this was not considered consistent with other thoraco-lumbar movement observations.  The neurological examination revealed brisk symmetrical lower limb reflexes, and on this occasion … [the plaintiff] … claimed an impairment of sensation affecting the lateral border of each foot.  …

Following my re-examination of the above I came to conclusions similar to those previously drawn, I consider a minor soft tissue strain injury likely to have been associated with the described work incident, and under the circumstances one would expect recovery. 

The investigations previously seen did not indicate a significant spinal condition.

The presentation again suggests functional overlay, and exaggeration is expected.”[38]

[38]Exhibit 6, DCB 17 and 18

108     Again, the reason I have taken so much trouble to read from this report is because it is relatively proximate in time to what is seen on the video and I wonder, had Mr Nye had the opportunity to view the surveillance at that time, whether he would have felt fortified in his conclusion.  As it turns out, he later does see the video and he is so vindicated.  I will not summarise all of his reports because there are quite a number of them, but by the time we get to exhibit 10, which is 4 June 2012, he has seen the video surveillance by this stage and he says that:

“Surveillance material obtained on the 4^th August 2010 depicts … [the plaintiff] … engaging in walking in a normal unimpaired manner, and getting into a motor vehicle in which he sits for some time leaning repeatedly both forwards and backwards.  Subsequently the above is recorded walking and pushing a pram and leaning into a motor vehicle. 

Material obtained on the 6^th August 2010 indicates the … [plaintiff] … in a car wash and he is noted to lean forwards apparently reading instructions and then proceeds to wash a four wheel drive Prado vehicle with repeated bending and reaching using a high pressure hose, and not (sic) suggestion of impaired movement of the spine or upper or lower limbs. 

Subsequently the … [plaintiff] … is noted to lean into a vehicle, and indeed push an apparently stalled vehicle, subsequently able to be started using jump leads.  Subsequently the … [plaintiff] … is depicted at a service station purchasing petrol, and in none of these activities is there a suggestion of an impairment of spinal movement.”[39]

[39]Exhibit 10, DCB 31

109     There is then reference to material obtained on 14 September 2010 which has not been played but, according to Mr Nye, there has been no objection taken to this paragraph, but he says material obtained on 14 September 2010 again indicated the plaintiff walking normally, bending into the rear seat of a four-wheel drive and subsequently getting into the driver’s seat.

110     Mr Nye said:

“The observations recorded are significant and particularly in the context of the claimant’s presentation at the times of examination, with claims of limited spinal movement and suspected pain behaviour. 

The material suggest that my original conclusion on first examination in regard to the work injury was correct, namely a soft tissue injury, with which one would normally expect recovery.

The recorded observations indicate to my interpretation that at the times of formal assessment[,] behaviour has been constructed and that the claims of continuing symptoms and physical impairment are not based on any organic condition arising from the original injury.”

111     I do not know that there is terribly much placed on the report of Mr Geoffrey Littlejohn, rheumatologist, exhibit 11.

112     Exhibit 12 is a report from Dr A Sheehan, consultant psychiatrist.  I will take some time to refer to these documents because Dr Sheehan did have the benefit of viewing the surveillance material.  I think I have already referred to the reports.  I do not want to re-read the passages that I have already referred to but essentially, Dr Sheehan diagnosed the plaintiff as suffering a Chronic Adjustment Disorder, mild, with Depressed and Anxious Mood, of mild severity.  He says:

“[The plaintiff] … reports that he is having no treatment for his adjustment disorder.  His prognosis is guarded.  His condition appears refractory to treatment, and it is likely that he will continue to experience mild ongoing psychological symptoms, secondary to his chronic pain symptoms and associated disability.

…

[The plaintiff’s] … adjustment disorder is of mild severity and, in itself, it does not significantly impact on his capacity for pre-injury employment.  … .”[40]

[40]Exhibit 12, DCB 45 and 46

113     Dr Sheehan quite correctly noted it was outside his field of expertise to comment on the impact of soft-tissue injuries.  The later reports, of course, as I have said, indicate that Dr Sheehan did have access to the surveillance material.  He said, in exhibit 15:

“From a psychiatric perspective alone I would describe the plaintiff’s symptoms are relatively mild and having little impact on his work capacity for pre-injury employment, whether with or without restrictions, modifications as required in regards to his spinal injuries.  He would of course require rehabilitation noting that he has been off work for a sustained period and would also benefit from referral to a

[41]Exhibit 15, DCB 56

multi-disciplinary pain management program before progressing to return to work.”[41]

114     A report prepared by Dr Davison, occupational physician, was tendered as exhibit 16, and only summarising it very briefly, he raises doubts as to the plaintiff's bona fides at page 5 of his report.

115     Exhibit 17 was a report prepared by Ms Joanne Bryant, occupational therapist, of CoWork Pty Ltd concerning the plaintiff’s suitability for employment.  She itemised some jobs that the plaintiff would be capable of performing.  See also the updated report, exhibit 18.

116     I hope I have sufficiently identified the clashes in the evidence.  I also intended to identify the witnesses who had access to the surveillance material since I think it impacts considerably on the value of the conclusion that is expressed.  An expert opinion is only as good as the facts upon which it is based.  The factual foundation of the expert opinion is the self-reporting of the plaintiff which, in my judgment, is inconsistent with what is seen on the video at times proximate to the video.

117     Turning to the submissions.  I will not repeat all the submissions.  The parties have been kind enough to provide them to me in written form.  They each augmented those submissions in discussion with me.  I propose to attach the respective submissions to these Reasons for Judgment.  Annexure B will be the defendant’s submissions.  Annexure C will be the plaintiff’s submissions.

118     I am probably over-simplifying, and I have over simplified the submissions because I tried to point out what the parties’ case is in relation to the expert evidence as I have analysed the material.

The Defendant’s submission

119     Mr Middleton submits essentially, that the plaintiff is not a credible witness; he has no serious physical impairment under sub-paragraph (a).  The diagnosis of a mental or behavioural disturbance is based on the plaintiff’s self-report of pain and physical restriction.  If he has a psychological or psychiatric condition, it can only be assessed as mild to moderate at best and it falls far short of the threshold required of a severe mental or behavioural disturbance as required by the Act.

The Plaintiff's submission

120     Mr Fehring submits that the plaintiff is a credible witness who has a severe mental or behavioural disturbance.  If the plaintiff is to be accepted as a credible witness, then I should accept that his condition is so severe that he is unemployable.  In that sense, Mr Fehring agrees this is an “all or nothing” situation, because if I find that the plaintiff is capable of performing some level of alternative duties, then I would have rejected his evidence of total incapacity and the plaintiff does not really know what it is he could do, even for a limited number of hours.

121     Mr Fehring submits I have placed undue focus on the surveillance material in my discussions with him and he cautions against giving the surveillance material undue prominence in my considerations.  It is correct to say that I am obliged to consider all of the evidence.  I should not place undue weight on any particular part necessarily.  I have considered each individual part of the evidence.  I have looked at the evidence in total and I hope I have made clear the passages of the evidence that are inconsistent with the surveillance material and I think in this case, the surveillance material is significant for the reasons that I have identified.

122     Mr Fehring submits I should not let the surveillance material skew my impression of the plaintiff or let it outweigh the regard that must be had to the medical evidence.  As I say, I have read everything.  I have taken it all into account the way the parties have asked me to.

Findings of fact – the Plaintiff’s credit

123     As I say, I have attempted to explain my findings on the materials as I have discussed them.  Again, turning to summarise the evidentiary basis of the pain assessment:

(a)What does the plaintiff say about his pain both in Court and to the doctors?

124     This has been covered.  I am of the view that what the plaintiff has said about the pain is inconsistent, particularly at times immediately before and after the surveillance.  The objective evidence is inconsistent with the presentation to some of the doctors.  I have said Mr Nye picks this up in exhibit 10.

(b)    What does the plaintiff do about the pain? 

125     Again, I have the plaintiff’s ‘say so’ as to what he does about the pain but the objective evidence does not necessarily stack up.  He has had limited treatment.  There is no ongoing psychological or psychiatric treatment. 

(c)What do the doctors say about the extent and severity of the plaintiff's pain?

126     I have referred to this and I have referred to the doctors who had access to the independent evidence; that is, the surveillance evidence, and those who have not.

(d)What does the objective evidence show about the disabling effect of pain?

127     Again, this all comes down to credit.  The Court is required to make its own assessment of the plaintiff’s credibility and I take into account the views expressed by examining doctors about the reliability of the plaintiff’s account of pain.

128     I am not convinced that the plaintiff is an accurate witness.  The objective evidence does not support his claim.  I observed the plaintiff to move to and from the witness box and in the body of the Court.  I have discussed my observations with him, as I have said.  I have pointed to the passages in my questions of him.  I have given him the opportunity to explain the apparent inconsistencies between what is on the video and what is seen in Court.  I have given counsel the opportunity to address the question.  I am unpersuaded that the plaintiff is a credible or reliable witness but that is not the end of the matter, as Mr Fehring pointed out.

129     Even allowing for the exaggeration of the symptoms, I still have to look at the expert evidence.  The evidence does show that the plaintiff has a Chronic Pain Syndrome or Adjustment Anxiety Disorder or depressive illness.  However, I am not satisfied that it is of great severity.  In any event, it does not meet the description of “severe” as required by the Act.

130     I prefer the opinions of Dr Sheehan and Mr Nye in this regard.  Each had access to the surveillance material, a factor they took into account when assessing the plaintiff’s condition and its severity.  Many of the plaintiff’s experts were ignorant of the surveillance material or were not provided with it.  Dr Epstein attempted to discuss what was apparently seen on the video, particularly pushing the car, but the plaintiff claimed to have no recall of doing so.

131     There is, accordingly, no explanation offered by the plaintiff to Dr Epstein or any opinion expressed by Dr Epstein as to how this might affect his conclusion.

132     I am unpersuaded that the plaintiff has established a loss of earning capacity as is alleged.  There is no physical impairment adversely affecting his capacity for employment and similarly, I am not satisfied that any mental or behavioural problem prevents him from working the number of hours required to satisfy the threshold test.  I note the concession “it is all or nothing” but I have turned my mind to the question of whether the mild condition would affect the income-earning capacity of the plaintiff.  According to the statutory formula, I am not satisfied that the plaintiff has reached the threshold.

133     The conclusion is that the plaintiff’s application fails under both sub-paragraphs (a) and (c).  I propose to dismiss the application.

Orders as to Costs

134     On the question of costs, there being no submission to the contrary, I order that:

(1)    The plaintiff pay the defendant’s costs on County Court scale to 21 August 2011 and thereafter on scale, to be assessed by the Costs Court in default of agreement.

(2)    The proceeding is otherwise dismissed.

- - -

Annexure ‘A’

COUNTY COURT OF VICTORIA
250 William Street
MELBOURNE   VIC   3000
DX 290078

Court Ref: CI-11-00731

IN THE COUNTY COURT

AT MELBOURNE

SITTING BEFORE HER HONOUR JUDGE MORRISH

LIST OF EXHIBITS

Serious Injury Application commencing on 22 August 2013

Qarshi v Bolwell Corporation Pty Ltd

Number and Identifying Mark on Exhibit	Short Description of Exhibit	Date tendered
A	Statement of issues	22/8/13
B	Plaintiff’s affidavit sworn 15/10/10 (Plaintiff’s court book (PCB) 24-28)	22/8/13
C	Plaintiff’s affidavit sworn 24/7/13 (PCB 29-31)	22/8/13
D	Bundle documents concerning Magistrates’ Court proceedings	23/8/13
E	Copy letter to the Plaintiff dated 13/5/10 notifying him of his impairment benefit entitlement	22/8/13
F	Affidavit of Sima Qarshi sworn 24/7/13 (PCB 32-33)	22/8/13
G	Report of Dr Window dated 12/11/09 (PCB 34-35)	22/8/13
H	Report of Dr Window dated 20/8/10 (PCB 36)	22/8/13
J	Report of Dr Window dated 27/2/12 (PCB 37)	22/8/13
K	Report of Dr Mirranay dated 27/5/13 (PCB 38-39)	22/8/13
L	Report of Dr Mirranay dated 19/8/13 (PCB 40-41)	22/8/13
M	Report of Dr Patrick dated 13/1/10 (PCB 42-44)	22/8/13
N	Report of Dr Patrick dated 7/2/12 (PCB 45)	22/8/13
O	Report of Dr Kaplan dated 17/8/10 (PCB 46-53)	22/8/13
P	Report of Mr Dooley dated 14/10/10 (PCB 54-57)	22/8/13
Q	Report of Dr Pease dated 14/2/12 (PCB 58-61)	22/8/13
R	Report of Professor White dated 19/12/12 (PCB 62-66)	22/8/13
S	Report of Mr Epstein dated 8/3/13 (PCB 67-78)	22/8/13
T	Report of Dr Nathar dated 16/4/13 (PCB 79-87)	22/8/13
U	Radiology report dated 7/2/08 (PCB 88)	22/8/13
V	Radiology report dated 15/10/08 (PCB 89)	22/8/13
W	Radiology report dated 10/12/08 (PCB 90)	22/8/13
X	Radiology report dated 23/5/13 (PCB 91-92)	22/8/13
Y	Report of Louise Meilak dated 15/3/12 (PCB 93-103)	22/8/13
Z	Report of Katrine Green dated 9/8/13 (PCB 104-119)	22/8/13
AA	Taxation summary table (PCB 120)	22/8/13
BB	Employer claim form dated 28/11/08 (Defendant’s court book (DCB) 3-4)	22/8/13
CC	Plaintiff’s outline of submissions	23/8/13
One	Surveillance of the Plaintiff conducted on 4/8/10, 6/8/10 and 8/4/10	22/8/13
2	Defendant’s admissions concerning surveillance of the Plaintiff	22/8/13
3	Subpoenaed material from Dr Window, clinical notes and records	22/8/13
4	WorkCover claim form dated 26/3/08 (DCB 1-2)	22/8/13
5	Report of Mr Nye dated 15/7/09 (DCB 9-15)	22/8/13
6	Report of Mr Nye dated 9/9/10 (DCB 16-19)	22/8/13
7	Report of Mr Nye dated 21/7/11 (DCB 20-23)	22/8/13
8	Report of Mr Nye dated 8/11/11 (DCB 24-25)	22/8/13
9	Report of Mr Nye dated 5/3/12 (DCB 26-28)	22/8/13
10	Report of Mr Nye dated 4/6/12 (DCB 29-31)	22/8/13
11	Report of Mr Littlejohn dated 17/3/10 (DCB 32-39)	22/8/13
12	Report of Dr Sheehan dated 10/4/12 (DCB 40-47)	22/8/13
13	Report of Dr Sheehan dated 28/4/12 (DCB 48-49)	22/8/13
14	Report of Dr Sheehan dated 11/6/12 (DCB 50-51)	22/8/13
15	Report of Dr Sheehan dated 17/6/13 (DCB 52-57)	22/8/13
16	Report of Dr Davison dated 26/2/13 (DCB 58-64)	22/8/13
17	Co-Work occupational and labour analysis report dated 7/9/11 (DCB 65-109)	22/8/13
18	Letter from Co-Work dated 7/8/13 (DCB 110-113)	22/8/13
19	Defendant’s outline of submissions	23/8/13

20 February 2023   

Annexure ‘B’

IN THE COUNTY COURT OF VICTORIA
AT MELBOURNE
  No: C1-11-00731

B E T W E E N:

MOHAMMED QARSHI  Plaintiff

and

BOLWELL CORPORATION PTY LTD  Defendant

OUTLINE OF DEFENDANT’S SUBMISSIONS

Claim

Certificates for pain and suffering and loss of earning capacity under S.134AB 37(a) and 37(c).

Injuries

Low back and left leg and psychiatric.

Physical injury and impairment

1.The Plaintiff alleges two incidents:

November 2007

May 2008

Injuries cannot be aggregated to Ha Lu v. Mediterranean Shoes Pty Ltd (VSCA 65 (4 May 2000).

2.With or without aggregation the injury to the low back was soft tissue and does not amount to a serious injury where consequences are very considerable.

Dr Windon reports and clinical notes do not support PCB 34-37.

Dr Patrick’s reports do not support PCB 42-45.

Dr Minaray – diagnosis inconsistent with other medical practitioners.  No clinical or investigation basis for diagnosis.

3.       There is no support for “serious injury” from experienced medical practitioners.

Mr Pease (orthopaedic surgeon): report PCB 58:

No history of 2004-2007.

Suggests conscious or unconscious exaggeration, possible malingering – PCB 60

Professor White report PCB 62:

Pain related behaviour.

P65 – no physical basis for pain.

Mr Nye (neurosurgeon) reports DCB 9-31:

P11     Pain behaviour inconsistent examination performance.

P12     Minor strain.

P.13     Abnormal illness behaviour

Subsequent reports have same conclusion.

Mr Littlejohn (Rheumatologist) report DCB 32:

P38     Chronic Pain Syndrome, impairment assessment 0% WPI.

Dr Davidson (Occupational Physician) report DCB 58.

P62     No objective clinical evidence of physical injury.

Mr Dooley) orthopaedic surgeon) report PCB 54:

P54     No previous back problems.

P55     Chronic Pin Syndrome

SLR testing 10 degrees but 90 degrees informally.

No radiculopathy.

P56     soft tissue injury

Para 5  Difficult to assess cause of worsening pain.

Conclusions re incapacity relate to psychological factors which are outside his area of expertise.

4.Physically the Plaintiff demonstrates on the film a greater range of movement inconsistent with examination presentation and courtroom presentation.

5.Physical consequences do not amount to the required level of very considerable.

Psychiatric injury

6.In almost six years since suffering injury the Plaintiff has never been referred to a psychiatrist or psychologist for treatment.

7.The reports of Dr Windon commencing PCB 34 and Dr Minaray commencing PCB 40 make no reference to depressive or psychiatric symptoms save for anxiety, P37.

8.Dr Windon prescribed Endep for sleep.

9.The Plaintiff has been assessed by four psychiatrists for medico legal opinions.

Dr Kaplan – report PCB 46:

P51 – Preoccupation with injury.

P52 – Adjustment disorder, depressed mood.  Psychiatric condition dependant on physical condition.  Pain syndrome therefore no psychiatrically based.

Epstein – report PCB 67:

P71 –History of current condition describes symptoms never raised with any other doctor before.

P76 – Chronic adjustment disorder, chronic pain.  Combines physical and psychiatric, ignores same physical opinions.

Opinion re capacity raising pursuing the physical is outside his area of expertise

Nathan – report page 79:

P83 – Mildly anxious and mildly depressed.

P84 – Mixes physical and psychiatric.  Cannot determine whether there is conscious or unconscious exaggeration of symptoms.

Dr Sheehan – report DCB 40:

P46 – Adjustment disorder, mild severity.

P49 – Same after seeing film.

Section 134AB (h) and (i) require the physical symptoms to be excluded when assessing under 17(c). Drs Epstein and Nathan have not done this.

Conclusions

10.Neither the claim for physical or psychiatric impairment reaches the required threshold levels.  Plaintiff cannot discharge burden on the evidence.

Dated: this           day of August 2013.

Annexure ‘C’

IN THE COUNTY COURT OF VICTORIA
AT MELBOURNE

No. CI-11-731

BETWEEN:

MOHAMMED QARSHI  Plaintiff

- and -

BOLWELL CORPORATION PTY LTD  Defendant

PLAINTIFF’S SUBMISSIONS

_________________________________________________________________________
Date of Document:

Filed on behalf of:       The Plaintiff

Prepared by:
RYAN CARLISLE THOMAS  Solicitors Code: 1181
Solicitors  DX 17515
41 Robinson Street  Tel: [phone]
Dandenong  VIC  3175  Fax: [phone]
  Ref: RJP

__________________________________________________________________________

FACTS

1.In Exhibit B (PCB 24) the Plaintiff deposes to his background circumstances.  He was born in Afghanistan and coming to Australia in 2000.  He then commenced employment with the Defendant July 2001 (paragraph 5).  In paragraphs 6 and 7 he sets out the onset of back pain in 2007 and again in May 2008 while he was working on a roof mould.  In paragraph 8 he deposes to having some light return to work but then ceasing employment in January 2009 and having his employment terminated at the end of that year.

2.The Plaintiff deposes at paragraph 9 of his Affidavit that he saw Dr John Window and a CT-scan was taken of his lumbar spine in 2008.  A copy of the scan is at page 88 of the Plaintiff’s Court Book.  The opinion of the Radiologist reports that there is “mild central broad based disc bulging causing mild impingement of the thecal sac without evidence of nerve root compromise”.  He goes on to depose as being referred to Dr Mark Patrick; that he had a facet joint injection on the 10^th December 2008 but it did not help; that he also attended at Epworth Rehabilitation in Dandenong on five or six occasions.  He goes on at paragraphs 10 and 11 to describe the consequences of his injury and in paragraph 12 refers to his ongoing attendance upon Dr Window and his medication regime, which at that time was Panadol Osteo, Cadelfine Forte, Endep, Brufen and Valium, as well as a back support.

3.In the Plaintiff’s second Affidavit in support of this Application Exhibit C (PCB 29) sworn 24^th day of July 2013.  The Plaintiff deposes in paragraph 2 to continuing to see Dr Window until early 2013 and then transferred to the Brent Park Family Practice where he sees Dr S. Mirranay.  He has not otherwise had any specialist treatment or referral.  His ongoing medication regime is again set out, being, Cadelfine Forte, Panadol Osteo, Endep, Valium and Nexium (Transcript page *).  The Plaintiff confirmed his ongoing medication regime.

4.In paragraph 3 of the Plaintiff’s Affidavit he deposes to him having ongoing back pain.  That squatting, bending or twisting is very difficult and he gets left leg pain which, on occasions, can be quite severe.  He goes on to depose to the fact that his sleep was affected because of ongoing pain and he gets, perhaps, 3-4 hours sleep at night.  Further his lifting capacity is very limited to one or two kilograms and he can drive for about 10-15 minutes and then has to have a rest.  Sitting for more than half an hour will increase his difficulties in terms of pain.

5.In paragraph 5 of his Affidavit he indicates that he walks regularly but not every day.  He can walk 400-500 metres, rest and then walk home.  He confirmed at Transcript *.

6.At  PCB  page 32 his wife deposes to the ongoing restrictions and difficulties that her husband has experienced since the onset of his back injury.  She confirmed that he is taking pain relief medication on a daily basis; has difficulty walking, sitting and sleeping.  She also confirmed that on occasions she is required to help him shower or to put on his pants and that he becomes socially withdrawn from friends. No challenge was made to this evidence and it should be accepted by the court.

MEDICAL EVIDENCE

7.PCB 34.  Dr Window notes he has been seeing the Plaintiff on occasions since 2004 but that on the 1^st April 2008 he stated that he had hurt his back reaching for parts while working in January 2008 and he gave him a Certificate for modified duties.  He says that the CT-scan was performed on the 7^th February 2008 which showed disc bulge at L4/5.  He further states that the pain progressed to the extent that he felt left leg pain and sciatica.  Dr Window referred to the fact that the Plaintiff was referred to the Epworth Rehabilitation Centre in Dandenong due to his presentation and despite weeks of intervention the doctor discharged Mr Qarshi as he was not making any progress to his symptoms.  It was the doctor’s opinion that the Plaintiff had previous back pain and had developed a severe chronic pain syndrome and he was incapable of working as a result.  He said rehabilitation had failed and further treatment would be a waste of time as the patient is preoccupied with his problems.

8.PCB 36.  Dr Window on the 20^th August 2010 said that there had been no change whatsoever in Mr Qarshi’s condition and he was still limping, holding his back and complaining of severe pain.  He also went on to say that as the rehabilitation at Epworth had failed it was pointless sending him for further physiotherapy.

9.PCB 37.  Dr Window as of the 27^th February 2012 had the following opinion -

“Mr Qarshi has been discharged from the Epworth Rehabilitation Centre in February 2009 due to the fact that he was not making any progress whatsoever in the management of his pain syndrome.  He has had no active treatment since that time and seems to be quite happy with this.  He still complains of his overall pain syndrome in his back, legs, shoulders etc.  His pain is managed with Codopane Forte which is a short acting pain relief and similar to Panadeine Forte.  He is also taking Endep to assist with his sleep and Panadol Osteo, and Valium for anxiety.  This patient does not have a capacity for work at the moment therefore he is unsuitable for any position available which may eventuate.  I do not think this man will ever return to his former employment.”

10.The Plaintiff’s current treating doctor is Dr Mirranay and his report commences at PCB 38 where he sets out the Plaintiff’s current medication.  At PCB 40 is his report of the 19^th August 2013 and he has the opinion that the Plaintiff has an L4/5 and L5/S1 disc prolapse with ongoing chronic lower back and legs pain.  He thought that he was capable of doing 12-16 hours per week if there was no lifting, recurrent bending in terms of employment and that that was the result of his physical injuries.

11.In the report of Dr Mark Patrick, his conclusions were (PCB 43) as of the 13^th January 2010.  It was his opinion that he felt that it was unlikely that Mr Qarshi would be able to return to his previous employment.  His previous monitoring through Dandenong Epworth indicated a likely poor response to rehabilitation.  He thought that the Plaintiff had a poor prognosis and there was no indication for surgical management.  The emphasis was on a self managed ongoing exercise routine, pacing and symptomatic management in general.

12.The Plaintiff saw Mr Brendan Dooley, medico-legal specialist, and his report at PCB 54 and was completed on the 14^th October 2010.  It was his opinion (page 256.1) that the Plaintiff suffered from a soft tissue injury to the lumbo-sacral spine with a referred pain to the left leg and there was no sign of disc rupture or protrusion and with no sign of nerve root compression.  The major problem he thought was marked psychological reaction with anxiety, depression and development of a chronic pain syndrome which has proved recalcitrant to all forms of conservative treatment.  Surgery is not indicated.  His final conclusion was that as to the future; the outlook recovery is poor and the probabilities are that he is permanently incapacitated for all forms of work in the foreseeable future.

13.At PCB 60 Mr Richard Pease, Orthopaedic Surgeon, was of the opinion that -

“The Plaintiff may have suffered a minor soft tissue injury to his lumbar spine but his reported disabling complaints, in my opinion, are functional and not based on the underlying residual injury.”

He said he suspected that the Plaintiff will not be able to return to his previous nor any suitable employment (Point 7).

14.At PCB 65 Associate Professor Owen White, Neurologist, commented that Mr Qarshi has suffered a soft tissue injury to his lumbar spine.  He has had five years of ongoing pain which has got worse as time has progressed.  There is no evidence of structural pathology of note on the basis of the investigations available on his examination.  It was primarily a psychological reaction to his pain and there was no organic explanation otherwise.  Finally, at Point 5, he thought that there was no physical injury however that he is not capable of returning to any work at the moment.  “I believe this to be psychological in origin and would refer to a psychiatrist in this area.”

PSYCHIATRIC OPINION

15.Dr Albert Kaplan provided an opinion on the 17^th August 2010.  It was his opinion (PCB 52 paragraph 1) that as a result of his injury, his chronic pain, his inability to work, his physical limitations and his financial difficulties he has developed an adjustment disorder with depressed mood.  He thought that his prognosis will be determined by the outcome of his physical condition and that he was likely to remain prone to depression as long as his pain persisted and as long as he remained disabled by this pain and was unable to rehabilitate himself back to the workforce and resume his normal lifestyle.  Further, that is his physical condition deteriorates with the passage of time and/or if he becomes increasingly disabled by his pain and/or loses his house his depression is likely to intensify.

16.Mr Michael Epstein in his report of the 8^th March 2013 (PCB 76) came to the following opinion -

“Mohammad Qarshi has developed a chronic pain disorder with both psychological features and a general medical condition (the original back strain) and as a consequence of this perception of ongoing pain, discomfort and disability has developed a chronic adjustment disorder with mixed anxiety and depressed mood.”

He thought he may benefit form involvement in a pain management programme but his prognosis for improvement is poor and his condition is stable.

17.Dr M. Nathar examined the Plaintiff on the 9^th April 2013 and his opinions commence at PCB 84.  He felt the Plaintiff had an adjustment disorder with anxious depressed mood (Point 1A) and at Point 1C he thought he would also make the additional diagnosis of pain amplification leading to a chronic pain disorder involving psychological factors and general medical condition.  He felt that this was a functional or non-organic basis for the majority if not all his problems at the unconscious level.  At Points 3 and 4 he comes to the conclusion that he is totally incapacitated for his pre-injury duties and that that was permanent and that due to the degree of pain and physical disability that he had experienced since November 2007 that he would be precluded from any employment.  This was in part related to his age, lack of education or potential for retraining and that his incapacity for work would last or continue into the foreseeable future.

18.At Point 7 Dr Nathar was on the opinion that “at this stage he will not benefit from psychiatric or psychological treatment”.  This was because he did not see him as psychologically minded enough nor did he have psychological insights compounded by language barrier to develop the necessary insight into better coping and improvement of his symptoms.  He continued that he was of the opinion that he would continue to need ongoing Endep for antidepressant.  He saw that as a pain modulator and he thought that his would be assisted by taking Valium and both of these would continue indefinitely.

DEFENDANT’S MEDICAL REPORTS

19.Dr Anthony Sheehan first saw the Plaintiff for the Defendant in April 2012.  He was provided with a range of medical material which is set out in his report and he came to the opinion (DCB 45) that the diagnosis of Mr Qarshi was chronic adjustment disorder, mild, with depressed and anxious mood.  At Point 6 of his report, at that time he saw the Plaintiff’s employment appeared to be continuing as a material contributing factor and he reports chronic pain and it has been stated that he has developed a chronic pain syndrome secondary to his work related soft tissue injury, and therefore his adjustment disorder also remains related to his employment.

20.On the 28^th April 2012 Mr Sheehan reported, after he had been shown video material of the 5^th August 2011 and the 6^th August 2011, that after viewing the footage he did not change any part of his previous opinion and that he continued to have the opinion that Mr Qarshi has a mild chronic adjustment disorder which he thought did not impact on his capacity for his pre-injury employment.  At Point 2 of the specific questions he also thought that the activities that he was able to view on the DVD were not inconsistent with information given to him at the time of his interview with Mr Qarshi on the 4^th April 2012.

21.A further report from Dr Sheehan of the 11^th June 2012 states he was then able to see two video discs, one being the 4^th to the 6^th August 2010 and the second being the 14^th September 2010.  The first disc was some 28 minutes and the second disc for about four.  (DCB 51)  He asserted, at Point 2, the activities that he viewed were not inconsistent with how he presented at interview and his activities were not inconsistent with his presentation and examination.

22.Finally on 17^th June 2013 Mr Sheehan provided his most recent report (DCB 52).  He confirmed that the diagnosis he thought relevantly applied to the Plaintiff was chronic adjustment disorder with depressed and anxious mood of mild severity (DCB 54 under Diagnosis).

PLAINTIFF’S LEGAL SUBMISSIONS

23.The Plaintiff carries the onus of establishing that he has suffered a consequence as a result of his work related back injury that can be described as a permanent or severe mental or permanent severe behavioural disturbance or disorder.  The Plaintiff submits that if it is accepted that the Plaintiff is unable to work as a result of his chronic pain disorder and/or the adjustment disorder with anxious and depressed mood as diagnosed by the Plaintiff’s medico-legal psychiatrists then such a consequence would amount to a severe behavioural disturbance or disorder if that is likely to continue for the foreseeable future.  On the evidence as presented from the Plaintiff’s medico-legal specialists, as set out above, the Court should accept that the Plaintiff’s current circumstances will continue indefinitely or at least for the foreseeable future and they are therefore permanent.

24.The Plaintiff submits that he has lost the use of his lumbar spine and left leg as a result of the psychiatric injury as it is now characterised by the medico-legal psychiatrists and that this condition arose as a result of the soft tissue injury to his lumbar spine which occurred during the course of his employment with the Defendant up to May 2008.

25.The Plaintiff submits that the approach set out in Bogdanovska v. Allsmanti Pty Ltd [2010] VSCA 126 is the relevant authority in a case such as this and in particular paragraphs 19 and 20. On behalf of the Plaintiff the evidential matters in this case are substantially different to those in Bogdanovska given both the medical and lay evidence and the insignificant video evidence that has been shown to the Court.

SURVEILLANCE MATERIAL

26.The Plaintiff was subjected to extensive surveillance and only short piece of footage was shown in relation to the 4^th and 6^th August.  It is submitted that the Plaintiff is seen to be limping on the 6^th August 2010 footage at 9:25 a.m., 12:55 p.m., 12:59 p.m. and 2:50 p.m. and that he is not engaging in any bending, squatting or twisting.  It is also submitted that Dr Sheehan, who was shown the video of this day did not think that any of the presentation was inconsistent with the history and examination given to him or did it affect his opinion as to the Plaintiff’s medical condition.

WORK CAPACITY ASSESSMENT

27.The Plaintiff has been assessed by two work assessment experts.  In her report Louise Meilak (PCB 100) she concluded that the Plaintiff would have great difficulty performing alternative employment with a range of factors set out including poor English skills; low academic levels; lack of clerical, administrative or computer skills and his pain restrictions.  She finally concluded that given the overall assessment he had no current work capacity for any occupation for which he was suited by way of training, education or experience as a result of his back injury and subsequent restrictions and psychological condition and there was unlikely to be any changes for the foreseeable future.

28.In her report Ms Katrine Green assessed the Plaintiff on the 9^th August 2013.  At PCB page 107 she set out a number of restrictions which are submitted are consistent with the Plaintiff’s evidence and medical material.  It is further submitted that the Plaintiff was not challenged or cross-examined that any of the restrictions as set out were not accurate or correct.  At page 109 she lists what, otherwise were referred to as “his transferrable skills” which are extremely limited.  At page PCB 114 she commented that because of his limited education, work history and transferrable skills the occupations for which he might be considered suitable were very limited and she identified possible employment options.  She further went on to consider each of the relevant employments as being factory process worker, product examiner/inspector, general labourer, hand packer or delivery driver.  She concluded that he was not suitable for a range of reasons, as set out in her report, to perform any of these employments and that the restrictions would prevent him from working for the foreseeable future (PCB 118).

29.The Defendant had the Plaintiff assessed by Co-Work Pty Ltd in September 2011.  It is submitted that this report is out of date and of little, if any, assistance to the Court in determining what Mr Qarshi’s current and long term employment prospects are.  It is submitted the report of utterly unrealistic.  For example at DCB 75 it is suggested that Mr Qarshi had experience in customer service and customer liaison skills, cash handling experience or stock control experience.  Between Mr Qarshi’s work history and his limited language skills to make such a suggestion is completely implausible.  It is not put to Mr Qarshi that he had any such skills by way of cross-examination.  To suggest that Mr Qarshi has the capacity to work as a forklift driver is implausible given that such work involves sitting, physical activity and the need for English language, at least to communicate with others and to read relevant documentation.

30.Co-Work provided a further report dated 7^th August 2013 which did not involve any further interview or contact with Mr Qarshi and simply reiterated the earlier report.

31.It is finally submitted that the opinion of Ms Green, which is up to date and comprehensive, should be preferred because of its detailed consideration and the reasoning  set out in the report.

DATED the  23rd     day of  August 2013.

………………………………………..
  RYAN CARLISE THOMAS
  Solicitors for the Plaintiff

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