Rahim v Victorian WorkCover Authority
[2021] VCC 2052
•17 December 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-18-03757
| JAN ALI RAHIM | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE ROBERTSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 and 3 August 2021 | |
DATE OF RULING: | 17 December 2021 | |
CASE MAY BE CITED AS: | Rahim v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 2052 | |
JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – lumbar spine – loss of earning capacity – pain and suffering – credibility
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), s325(1) and (2)
Cases Cited:Humphries and Anor v Poljak [1992] 2 VR 129; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Ninkovic v Pajvancek [1991] 2 VR 427; Richter v Driscoll (2016) 51 VR 95; Ansett Australia Ltd v Taylor [2006] VSCA 171; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Dwyer v Calco Timbers Pty Ltd [2006] VSCA 187; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Victorian WorkCover Authority v Papaconstantinou [2021] VSCA 145; Yirga-Denbu v Victorian WorkCover Authority (2018) 57 VR 545; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Sejranovic v Berkeley Challenge Pty Ltd [2009] VSCA 108; Sabanovic v Atco Controls Pty Ltd [2009] VSCA 143; Dordev v Cowan [2006] VSCA 254; Cakir v Arnott’s Biscuits Pty Ltd [2007] VSCA 104; Franklin v Ubaldi Foods Pty Ltd [2005] VSCA 317; Mason v Demasi [2009] NSWCA 227; Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320; Petrovic v Victorian WorkCover Authority [2018] VSCA 243; Pulling v Yarra Ranges Shire Council [2018] VSC 248; Ryan v Bunnings Group Ltd [2020] ACTSC 353; Giankos v SPC Ardmona Operations Ltd (2011) VR 120
Judgment: Leave granted to commence a common law proceeding for both pain and suffering and pecuniary loss damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S A Smith QC Ms K Popova | Zaparas Lawyers |
| For the Defendant | Ms S Manova | Thomson Geer Lawyers |
Table of Contents
Introduction
Witnesses and evidence
Legal principles
Parties’ submissions
Mr Rahim’s background
Mr Rahim’s injury and medical treatment
Medical evidence
Treating doctors
Dr Ariane D’Argent – general practitioner
Dr Peter Jancovic – treating pain clinician
Professor Richard Bittar – consultant neurosurgeon
Dr Gavin Weekes – treating pain specialist
Plaintiff’s medico-legal reports
Dr Richard Sullivan – pain specialist
Dr Hazem Akil – neurosurgeon
Dr Mohammed Awad – neurosurgeon
Dr Siva Chandrasekaran – orthopaedic surgeon
Defendant’s medico-legal reports
Dr Graeme Doig – general orthopaedics and trauma
Plaintiff’s rehabilitation reports
Dr Kilner Brasier – occupational physician
Dr Robyn Horsley - occupational physician
Defendant’s vocational assessments and rehabilitation reports
Recovre vocational assessment
Nabenet Vocational Assessment
Dr David Barton – occupational physician
Dr Joseph Slesenger – occupational physician
Was a compensable injury sustained on 16 May 2016?
Nature of the injury sustained by Mr Rahim on 16 May 2016 – radiology reports
Credibility
Clinical presentation/Abnormal illness behaviour
Asserted disabilities and need to lie down for 10 to 15 minutes every hour
Video surveillance
Uber earnings
Change in medication dose and impact on finalisation of case
Conclusion on credibility
Loss of earning consequences
“Suitable employment”
Motivation
Pain and suffering consequences – “serious injury”
Conclusion
HER HONOUR:
Introduction
1The plaintiff (“Mr Rahim”) was injured during his employment with CNC Sheet Metal Pty Ltd (“CNC”) on 16 May 2016. He was manually flipping over a pillar when he felt a sharp pain in his back. The pain gradually intensified the following day until it became intense.
2He claims he sustained a “serious injury” to his spine, within paragraph (a) of the definition of “serious injury” in s325(1) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”). He has sought leave to issue common law proceedings for damages for pain and suffering and pecuniary loss.
3Although a claim that Mr Rahim had suffered a serious injury within the meaning of paragraph (c) of the definition of “serious injury” in s325(1) of the Act was made in the Originating Motion, it was abandoned at trial.
4To succeed in this application, Mr Rahim must satisfy the Court, on the balance of probabilities, that he has suffered a “serious injury” as defined in the Act and that the pecuniary loss consequences are also serious.
5Having considered all the evidence, I have formed the view that the plaintiff has suffered ongoing pain and suffering consequences that are “serious” and that he has also suffered the requisite 40 per cent loss of earning capacity as per the statutory formula contained in s325(2)(e), (f) and (g) of the Act.
Witnesses and evidence
6At the hearing, Mr Rahim gave evidence and was cross-examined. He required the assistance of an interpreter for the purposes of giving his evidence. An interpreter was also employed for his attendances on medical practitioners.
7In addition to the oral evidence given by Mr Rahim, a series of medical records, diagnostic tests, and other documents, as well as reports from treating practitioners and independent medico-legal experts, were tendered by both Mr Rahim and the defendant. Four of six excerpts of video surveillance footage taken on 11 February 2020 between 6.00am and 12.29pm were also admitted and played by the defendant. Agreement was reached between the parties in relation to the remaining two video surveillance excerpts that Mr Rahim remained in the fishing spot until approximately 12.29pm undertaking similar activities to those depicted in the footage already shown to the Court and then at 12.29pm Mr Rahim began to walk back along the rocks towards the parked car.
Legal principles
8Pursuant to s327 of the Act, a worker may recover damages in respect of an injury arising out of, or in the course of, or due to the nature of employment, if the injury is a serious injury.
9“Serious injury” is defined in s325(1)(a) of the Act to mean:
“(a) permanent serious impairment or loss of a body function; or
…
(d) …”
10The term “serious” is to be satisfied by reference to the consequences to the worker of any impairment or loss of body function, with respect to pain and suffering or loss of earning capacity when judged by comparison with other cases in the range of possible impairments or losses of a body function.[1]
[1] Section 325(2)(b) of the Act
11An impairment or loss of a body function is not to be held to be serious unless the pain and suffering consequence, or the loss of earning capacity consequence, is, when judged by comparison with other cases, in the range of possible impairments or loss of a body function, fairly described as being more than significant or marked, and as being at least considerable.[2]
[2]Section 325(2)(c) of the Act and Humphries and Anor v Poljak [1992] 2 VR 129 (“Poljak”) at 141 (per Crockett, McGarvie and Southwell JJ)
12It is necessary first, to identify the nature and extent of the injury relied upon and the consequent impairment of the body function said to have been produced. Consideration can then be given to whether the consequences for the plaintiff are “serious” for the purposes of s325(2)(b) and (c).[3]
[3]Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 (“Barwon Spinners”) at paragraph [33] (per Ormiston, Chernov and Phillips JJA)
13The assessment of whether the consequences of an impairment are “at least very considerable” and certainly more than “significant” or “marked”, involves matters of degree, impression, and value judgment[4] as to relative incapacity.[5] The task requires the Court to consider the whole of the evidence to try to place a particular claimant’s injury within a spectrum of seriousness of injuries.[6] Within that range is a point at which an injury becomes “very considerable”.[7] The test to be applied was identified by Marks J in Ninkovic v Pajvancek[8] and accepted by the Court of Appeal in Poljak.[9]It is a subjective test in that the effect on a body function of a particular applicant is what must be considered. However, the determination must be objectively made.[10]
[4]Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592 at 628; see also Sabo v George Weston Foods [2009] VSCA 242 at paragraph [67]
[5]Victorian WorkCover Authority v Papaconstantinou [2021] VSCA 145 referring to Yirga-Denbu v Victorian WorkCover Authority (2018) 57 VR 545 at 573, paragraph [89]
[6]Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1 (“Haden”)
[7]Dwyer v Calco Timbers Pty Ltd (No 2) [2006] VSCA 187 (“Dwyer”)
[8][1991] 2 VR 427
[9][1992] 2 VR 129
[10]Ibid at 137
14In Haden Engineering Pty Ltd v McKinnon,[11] the Court of Appeal identified that the “pain and suffering consequences” of an injury encompass both the plaintiff’s experience of pain as well as the disabling effect of the pain on the plaintiff’s physical capabilities and enjoyment of life. The intensity, frequency, and duration of the pain must be assessed. This involves consideration of the plaintiff’s account of the pain, what he or she does about the pain (for example medication, rest, seeking medical treatment), the doctors’ views about the extent and intensity of a plaintiff’s pain, and what the objective evidence demonstrates with respect to the disabling effect of the pain.
[11](2010) 31 VR 1
15The Court must exclude the psychological or psychiatric consequences of an injury where paragraph (c) of the definition of “serious injury” is not in issue.[12]
[12] Section 325(2)(h) of the Act
16The weight to be attached to the plaintiff’s account of pain will be affected by an assessment of the plaintiff’s credibility.[13] A plaintiff’s credibility is relevant not only to whether his or her evidence should be accepted, but it is also relevant to the reliability of the medical evidence. The opinions of the doctors are essentially dependent on the credibility and reliability of the history given to them by the plaintiff.[14] Medical opinions by experts may be of reduced weight if the plaintiff is shown to be an inaccurate historian.
[13]Haden at 5, paragraph [12], citing Dwyer at paragraph [8]; Sejranovic v Berkeley Challenge Pty Ltd [2009] VSCA 108 at paragraph [171]; Sabanovic v Atco Controls Pty Ltd [2009] VSCA 143 at paragraphs [142]-[145]
[14]Dordev v Cowan & Ors [2006] VSCA 254 at paragraph [51]
17Even if the Court determines that a plaintiff is not a reliable witness, either in general or in respect of particular matters, this does not mean that all medical opinions relied upon by a plaintiff should be automatically disregarded.[15] The opinions of doctors depend on credibility, but it would be remarkable if there were not variations in accounts given over time to different doctors.[16] Apparent inconsistencies have to be viewed with some caution before being accepted as significant.[17]
[15]Cakir v Arnott’s Biscuits Pty Ltd [2007] VSCA 104; Sejranovic v Berkeley Challenge Pty Ltd [2009] VSCA 108 at paragraph [146]
[16]Franklin v Ubaldi Foods Pty Ltd [2005] VSCA 317
[17]Mason v Demasi [2009] NSWCA 227 at paragraph [2] following Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 at paragraph [8]
18Ultimately each case must be decided on the whole of the evidence, including objective evidence of diagnostic tests which are unaffected by the plaintiff’s credit.[18]
[18]Cakir v Arnott’s Biscuits Pty Ltd[2007] VSCA 104 at paragraph [49]; Petrovic v Victorian WorkCover Authority [2018] VSCA 243 at paragraph [76]; Pulling v Yarra Ranges Shire Council [2018] VSC 248 at paragraph [51], and Ryan v Bunnings Group Ltd [2020] ACTSC 353 at paragraphs [27]-[29]
19If the consequences of an injury are serious for the purposes of s325(2)(c), then a court must not grant leave under s335(2)(d) to bring proceedings, on the basis that the worker has established the loss of earning capacity required by paragraph (b), unless the worker also establishes that:
“… the worker has a loss of earning capacity of 40 per cent or more, measured … as set out in paragraph (f); and the worker … will, after the date of the decision or of the hearing, continue permanently to have a loss of earning capacity which will be productive of financial loss of 40 per cent or more.”[19]
[19]Section 325(2)(e)(i) and (ii) of the Act
20Section 325(2)(f) of the Act determines the calculation of the relevant loss of earning capacity by comparing the gross income the worker is earning, or is capable of earning in “suitable employment” at the date of the hearing (“after injury earnings”); and the gross income that the worker was earning or was capable of earning in suitable employment “during that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity had the injury not occurred” (“without injury earnings”).
21Suitable employment is defined in s3 of the Act. In relation to a worker, it means employment in work for which the worker is currently suited, having regard to a range of factors. The factors to be considered include the nature of the worker’s incapacity and the details provided in medical information including the certificate of capacity; the nature of the worker’s pre-injury employment; the worker’s age, education, skills and work experience; the worker’s place of residence; any plan or document prepared as part of the worker’s return to work planning process; any occupational rehabilitation services that are being, or have been, provided to or for the worker regardless of whether the work or the employment is available; or whether the work or the employment is of a type or nature that is generally available in the employment market.
22The defendant bears the evidentiary onus to establish the existence of jobs which are “suitable employment” and are within a worker’s “after injury” capacity.[20]
[20]Giankos v SPC Ardmona Operations Ltd (2011) VR 120 at paragraph [115]
23A worker does not establish the requisite loss of earning capacity if the worker, taking into account the worker’s capacity for suitable employment as well as the reasonableness of the worker’s attempts to participate in rehabilitation or retraining, has or would have, a capacity for employment or alternative employment which would result in the worker earning more than 60 per cent of gross income as determined in accordance with paragraph (f) had the injury not occurred.[21]
[21] Section 325(2)(g) of the Act
24In Barwon Spinners,[22] Ashley and Kaye JJA considered that the concept of suitable employment:
“… looks to the possibility of employment after injury; hence the reference to ‘work for which the worker is currently suited’. Age, education, and experience are among the matters relevant, as also are the nature, and no doubt extent, of the worker’s incapacity and, of course, pre-injury employment. Obviously, employment is not to be regarded as ‘suitable’ if situated too far from the worker’s place of residence; and so, a specialist factory in Mildura will not ordinarily be regarded as providing ‘suitable employment’ for a worker resident in Melbourne. The expression ‘whether or not that work is available’ emphasises that the definition is looking to the capacity to work, meaning the physical capacity for employment. If the worker is of an age, is sufficiently skilled, perhaps after rehabilitation, is sufficiently close by and is able physically to do a particular job, then that is ‘suitable employment’, whether, or not, the job is currently available.”[23]
[22]Supra
[23]Ibid at paragraph [25]
25In Richter v Driscoll[24] the definition of “suitable employment” again arose for consideration in the context of an appeal from a judge’s order dismissing an Originating Motion seeking an order, in the nature of certiorari, to quash the opinion of a Medical Panel. Ashley and Kaye JJA considered that the question of whether “suitable employment” should be given a different meaning than that given to it in Barwon Spinners did not arise.[25] Osborn JA said (at paragraph [146]):
“Suitable employment means employment in work for which the worker is currently suited. The Act then provides for factors which must be considered in assessing whether the worker is able to return to employment in work for which the worker is currently suited. The factors listed in paragraphs (a)(i) to (iv) go to characteristics of the worker bearing on his or her employability and are not limited to physical capacities. The factors listed in paragraphs (a)(v) and (vi) go to factors related to processes intended to facilitate a return to work either by way of work plans or rehabilitation services. The significance of return to work is emphasised in the objects of the Act. The outcome of these processes may or may not have been successful, but, for present purposes, these factors are relevant in that they go to the capacity of the worker to return to work in employment in the broad sense that I have sought to explain.”
[24](2016) 51 VR 95
[25]Ibid at paragraph [80]
Parties’ submissions
26Mr Rahim submitted he sustained a “serious injury” to his spine on 16 May 2016, and consequently he has been left with significant pain and suffering and is permanently incapacitated for work. It was submitted that the onset of Mr Rahim’s pain was corroborated by the radiological evidence which showed “a demonstrated pathological abnormality of the lumber spine”. Also, it was consistent with the physical impairment of the lumbar spine on 16 May 2016; the commencement of the injury; Mr Rahim’s clinical progress and the opinions of the orthopaedic surgeons and neurosurgeons. The physical injury to Mr Rahim’s spine creates substantial organic pain and restriction and the consequences of this pain are ongoing. Further, Mr Rahim is permanently incapacitated for work and there is no suitable employment available to Mr Rahim.
27The defendant did not dispute that Mr Rahim suffered an injury to his lumbar spine on 16 May 2016. The real issue was whether it was a “serious injury”.
28The defendant submitted that the medical evidence derived from Mr Rahim’s recorded history of his injury, and his account of his chronic pain and dysfunction, were exaggerated. It was argued that the radiological scan did not provide objective evidence of Mr Rahim’s symptoms. His complaints of pain were disproportionate with his pathology, and therefore inconsistent and exaggerated.
29The defendant relied on the admitted video surveillance. It submitted that the consequences of his injury were not consistent with the observations demonstrated on the video surveillance which showed Mr Rahim “walking”, “climbing rocks”, “reeling in fish”, “bending” and “squatting”. As such, it should be inferred that the injury was not a “serious injury” in terms of the pain and suffering consequences.
30As for pecuniary loss, the defendant claimed Mr Rahim has retained a capacity to undertake light work and to earn an income in suitable employment. Consequently, Mr Rahim does not meet the 40 per cent loss of capacity threshold necessary to claim pecuniary loss damages.
Mr Rahim’s background
31Mr Rahim was born in Afghanistan and at the date of the hearing was aged 38.
32He arrived in Australia as a refugee in 2000.
33He was first employed in 2002 at a meat factory. From 2002 until 2011, he was engaged in various forms of employment including at factories, as a fruit picker, as a farm hand, as a machine operator, as a warehouse assistant and as a forklift driver.
34In 2011, Mr Rahim experienced some back pain which was investigated at the time with an x-ray of the upper and lower back. The pain settled on its own.[26]
[26]Second affidavit of Jan Ali Rahim sworn 17 June 2020, at paragraph [3]
35In 2012, Mr Rahim commenced employment as a labourer with CNC at a factory in Hallam. CNC was hired to remove level crossings. Mr Rahim’s duties included welding the foundation of the level crossing removal bridges. He worked with metal pieces about 20 millimetres in thickness and 1.5 metres in length. Each weighed between 8 to 12 kilograms. Mr Rahim was required to stand the metal pieces on end in a pillar or column formation and then weld a metal band around the circumference of the pillar. Once welded, Mr Rahim used a crane to lower the pillar onto its side on the floor. He was then required to manually flip the pillar 180 degrees and weld another piece of metal around the circumference of the pillar. Mr Rahim said that moving the pillar manually required him to bend and twist his spine. It required his full strength.[27]
[27]Affidavit of Jan Ali Rahim sworn 18 April 2018, at paragraph [6]
36Mr Rahim had other duties, including folding metal sheets, ranging in size from the size of a small mobile phone through to sheets measuring 3 x 4.5 metres. Mr Rahim was required to manually lift the sheets from a pallet on the floor to a punching machine which sat at waist height. When complete, he was required to move the sheet onto a folding machine and then, once folded, onto a pallet. The lifting was manual and required Mr Rahim to bend and twist his back.[28]
[28]Ibid at paragraph [7]
37Mr Rahim also drove forklifts, performed cabinet making and spot welding. The cabinet making required him to lift metal sheets and to bend repeatedly. The spot welding involved lifting and bending.[29]
[29]Ibid at paragraph [8]
38In February 2016, Mr Rahim started supplementing his income by driving for Uber around three nights per week.
Mr Rahim’s injury and medical treatment
39Mr Rahim first had back pain in around 2014. He was referred for an x-ray of his thoracolumbar spine on 24 October 2014. This showed some possible disc degeneration at T10/11, but nothing in the lumbar spine.
40In his first affidavit, Mr Rahim described experiencing back aches and pains whilst lifting at work for about a year prior to the date of the injury on 16 May 2016. He said he saw his general practitioner and was sent for scans of his back.[30] His back pain was transitory and did not impede his ability to function at work.
[30]Ibid at paragraph [10]
41On 16 May 2016, while manually flipping a pillar over, Mr Rahim felt pain in his back. The pain gradually got worse during his welding duties over the course of the day and continued the following day, when it became sharp and intense. By the end of 17 May 2016, he had very bad pain in his back and down his legs. It hurt to sit and walk.[31]
[31]Ibid at paragraph [12]
42Mr Rahim made a WorkCover claim which was accepted. He has not returned to work since, which he says is because of the ongoing back pain.[32] He continues to receive weekly payments of compensation from the WorkCover insurer.[33]
[32]Third affidavit of Jan Ali Rahim sworn 26 July 2021, at paragraph [9]
[33]Second affidavit of Jan Ali Rahim sworn 17 June 2020, at paragraph [11]
43Following the injury on 17 May 2016, Mr Rahim consulted a general practitioner, Dr Peter Pereira, who referred him to Mr Michael Khan, an orthopaedic surgeon, for an MRI of his lower back. An MRI of Mr Rahim’s lumbar spine was taken on 18 May 2016. This concluded that he had mild disc desiccation at the L4-5 and L5-S1 discs without disc height loss. He had mild disc bulges at L3-4, L4-5 and L5-S1 with mild narrowing of the neural foramina. There was no definite focal nerve root compression. There was a far lateral annulus tear at the L4-5 level on the left side which it was noted may have been the source of Mr Rahim’s symptoms.
44At the end of May 2016, Dr Ariane D’Argent became Mr Rahim’s general practitioner.
45In August 2016, Mr Rahim began remedial massage for his back.
46In September 2016, he attended Caulfield Pain Management and Research Centre for a pain management assessment on referral from Dr Khan. He then commenced treatment with a physiotherapist, Ms O’Leary.
47In November 2016 he was encouraged to return to work with a lifting restriction of 2 to 4 kilograms.
48He returned to work in December 2016 on light duties. He managed only about two hours a day, for two days, before having to stop. The standing and twisting at work on light duties made his back pain worse.
49Mr Rahim stopped driving for Uber at the same time he stopped working for CNC.
50In December 2016, Mr Rahim also started physiotherapy treatment with Mr Jim Wong who also arranged hydrotherapy classes.
51Mr Rahim saw Professor Richard Bittar, neurosurgeon, in February 2017 on referral from Dr D’Argent.
52On 4 April 2017, Mr Rahim had an erect weight-bearing lumbosacral MRI. This confirmed that there was a moderate broad-based disc bulge at L4-L5, resulting in mild central canal narrowing. It was asymmetric in the left paracentral/foraminal region, compressing the proximal traversing left L5 nerve root and contacting the proximal traversing right L5 nerve root. There was associated mild central canal narrowing and mild bilateral neural foraminal stenosis. At the L5-S1 level there was also a mild broad-based disc bulge with mild bilateral facet joint arthropathy. There was no central canal or neural foraminal stenosis at that level.
53The insurer ceased funding physiotherapy treatment in May 2017, and consequently Mr Rahim’s physiotherapy treatment ceased.
54In September 2017, Mr Rahim was seen by Dr Gavin Weekes, a pain specialist.
55On 18 November 2017, Mr Rahim underwent a left L5 nerve block with local anaesthetic and steroid. He said this made no difference to his pain level.[34]
[34]Affidavit of Jan Ali Rahim sworn 18 April 2018, at paragraph [24]
56On 25 January 2018, Mr Rahim underwent bilateral sacroiliac joint local anaesthetic and steroid injections. Mr Rahim said that his pain improved for a few days because of the injections, but then returned to his pre-injury levels.[35]
[35]Ibid at paragraph [25]
57On 14 February 2018, Mr Rahim underwent nerve conduction studies.[36]
[36]Report of Professor Bittar, dated 25 March 2018
58After 18 April 2018, Mr Rahim started to see psychologist, Mr Tam Dinh, once a month, and psychiatrist, Dr Katherine McQuillan, about once every three months.[37]
[37]Second affidavit of Jan Ali Rahim sworn 17 June 2020, at paragraph [12]
59On 20 April 2018 Mr Rahim presented to the Monash Emergency Department at Monash Health with sharp exacerbation of his back pain when standing from sitting. Mr Rahim reported being unable to manage with his PRN medications. He did not report bladder or bowel incontinence but reported worsening left leg weakness and sharp pain from the left lumbar region radiating down the left leg. Mr Rahim did not report paraesthesia, but on examination he was tender in the left lumbar paravertebral region with some paraesthesia in his upper lateral left thigh and lateral left dorsum foot.
60On 5 October 2018, he had an x-ray and an MRI of his lower back.[38]
[38]Ibid at paragraph [7]
61He re-commenced physiotherapy and hydrotherapy treatment.[39]
[39]Ibid at paragraph [8]
62On 14 February 2019, Mr Rahim was assessed for a pain management program by Precision Pain Management. He said it was decided it was not necessary for him to complete a formal program as his treatment with the physiotherapist and psychologist covered what would have been in the program.[40]
[40]Ibid
63A further MRI scan of Mr Rahim’s lumbar spine was taken on 27 March 2020.[41] There was pathology at various levels of Mr Rahim’s spine, including at L3-L4. There was an annular fissure associated with a small foraminal and lateral protrusion which contacted, and was likely to irritate, the exiting left L3 nerve. The right L3 nerve exited normally, and the central canal remained adequate. At the L4-L5 level a disc bulge indented the thecal sac, and an annular fissure was present. There was also a minor disc bulge at the L5-S1 level indenting the thecal sac. While the central canal and neural exit foramina were capacious, a small annular fissure was present on the left. The facet joints were reported as normal.
[41]Ibid at paragraph [7]
64On 9 April 2020, Mr Rahim was referred to Mr Ales Aliashkevich, neurosurgeon, for further assessment and management.[42]
[42]Exhibit A - Medical report of Dr Ariane D’Argent dated 17 June 2020, Plaintiff’s Further Amended Court Book p 159
65In about December 2020, Mr Rahim had neuromodulation treatment organised by Dr Weekes, his pain specialist.[43]
[43]Third affidavit of Jan Ali Rahim sworn 26 July 2021, at paragraph [3]
66On 21 December 2020, Mr Rahim had x-rays of his thoracic and lumbar spine.[44]
[44]Ibid at paragraph [4]
67On 22 February 2021, he had a further MRI scan of his lumbar spine.[45]
[45]Ibid at paragraph [5]
68Mr Rahim no longer undertakes physiotherapy. Hydrotherapy was put on hold during COVID-19. He does exercises and stretches most days and tries to walk at least every second day.[46] He continues to see his general practitioner, Dr D’Argent, about once a month and has no further plans for treatment on his back.[47]
[46]Second affidavit of Jan Ali Rahim sworn 17 June 2020, at paragraph [9]; third affidavit of Jan Ali Rahim sworn 26 July 2021, at paragraph [6]
[47]Ibid
Medical evidence
Treating doctors
Dr Ariane D’Argent – general practitioner
69Dr Ariane D’Argent prepared seven letters, respectively dated 7 June 2017, 15 June 2017, 12 December 2017, 24 July 2018, 3 March 2020, 17 June 2020 and 22 July 2021. These detailed Mr Rahim’s medical history as it pertained to his spinal injury suffered on 16 May 2016.
70In her reports, Dr D’Argent noted Mr Rahim’s denial of any previous back pain or injury prior to 2016. She opined that Mr Rahim’s employment at CNC contributed to his back injury. She said the injury was not due to aggravation or deterioration of a pre-existing condition.
71In her most recent letter, Dr D’Argent referred to her examination of Mr Rahim on 22 July 2021. At that examination, she noted that Mr Rahim had impaired mobility and was still complaining of lower back pain and bilateral leg pain down to both heels. His left leg was worse than the right leg. Dr D’Argent observed Mr Rahim had gross restriction of the range of movement of his spine. There was tenderness over his lumbar spine and lower paralumbar areas. It was worse on the left and in the area of the bilateral sacroiliac joints. Mr Rahim was observed to have normal reflexes in his lower limbs, but there were associated sensory and motor changes. His straight leg raising was grossly limited.
72Dr D’Argent recorded that Mr Rahim was being prescribed Targin 10mg/5mg twice daily for nociceptive pain relief; Lyrica 150mg twice daily for neuropathic pain relief; Mobic 15mg daily as an anti-inflammatory medication; Avanza 30mg for depression, anxiety and chronic pain syndrome and Panadol Osteo two tablets, three times daily, for nociceptive pain relief.
73In relation to further treatment, Dr D’Argent noted that Mr Rahim had seen Dr Gavin Weekes, pain physician, in March 2021. Dr Weekes had recommended a trial of neuromodulation. This was done in December 2020 but was unsuccessful.
74On 2 November 2015 Mr Rahim was placed on a return-to-work program following a WorkCover conference, with a restriction of minimal lifting. He managed to work for two days at two hours per day before he was unable to continue working as standing and twisting were exacerbating his pain. He could sit, stand and walk for 30 minutes at one time.
75Mr Rahim lived at home with his wife and two children, aged 6 and 9. He was unable to play with his children because of his disability. He was able to do light housework, but was unable to do gardening, mowing or pursue hobbies such as cricket and soccer.[48] His chronic pain negatively impacted his mental state, resulting in depressed mood.
[48] Affidavit of Jan Ali Rahim sworn 18 April 2018, at paragraphs [33] and [38]
76Dr D’Argent concluded that Mr Rahim, by virtue of his back injury alone, was not fit for his pre-injury employment or for alternate duties. In her view, due to the persistence of the pain and limitations of his movements, as well as Mr Rahim’s lack of formal training or education prior to the injury in 2016, Mr Rahim would be unable to perform roles as a customer service officer, warehouse supervisor, packer (light items), trade sales assistance or product examiner.
Dr Peter Jancovic – treating pain clinician
77Dr Peter Jancovic, pain clinician, saw Mr Rahim on 24 August 2016.
78Mr Rahim recounted a history of working at a sheet metal factory and having had “some minor intermittent back pain for some time”. Dr Jancovic noted that in May 2016, while doing a task involving repeated bending and lifting of heavy metal parts for welding, Mr Rahim developed sudden onset severe low back pain. The pain was worst in the left lower lumbar region. He stopped work due to the pain and consulted his doctor who arranged an MRI scan. The MRI scan revealed mild multilevel disc disease with no nerve root compression and an annular tear at L4-L5 on the left side.
79Mr Rahim continued to have ongoing pain in his lower back. There was a burning sensation in the dorsum of his right foot with referred pain into his left buttock and leg.
80Treatment at that time had been mainly medication based. Mr Rahim had been prescribed Tramal 50mg two capsules q.i.d, Lyrica 75 mg and Mobic 15 mg. It was recorded that Mr Rahim was developing a chronic pain syndrome with associated features of lowered mood, social withdrawal and deconditioning.
81On examination, Mr Rahim appeared quite flat with restricted range of movement. His forward flexion was no more than 15 degrees in the lumbar spine. He had diffuse tenderness over the lower lumbar regions. This was worse on the left side than the right. Straight leg raising was markedly limited to 30 degrees bilaterally. He had lost power in his lower limbs.
82His MRI findings were said to be “fairly minimal” and his symptoms were not considered to be consistent with the radiological findings.
Professor Richard Bittar – consultant neurosurgeon
83Professor Richard Bittar, consultant neurosurgeon, prepared a report dated 25 March 2018.
84Professor Bittar initially reviewed Mr Rahim on 10 February 2017. Mr Rahim reported an injury at work in May 2016 while lifting a heavy cage weighing about 70 kilograms. His work involved repetitive bending, twisting and heavy lifting. He complained of lower back pain radiating down the back of both legs. It was “fairly severe” and interfered with his ability to look after himself. The pain was worse on lifting and he had trouble walking more than one kilometre or standing or sitting for more than 30 minutes. His sleep was disrupted, and his social life was moderately restricted.
85Professor Bittar noted that Mr Rahim had been assessed at the Caulfield pain clinic and had received physiotherapy and hydrotherapy. His treatment included daily pain medication, specifically Tramadol, Lyrica and Mobic.
86On examination Mr Rahim had a mildly antalgic gait. He had moderate restriction of his lumbar spine flexion which was painful. He also had bilateral lumbar paravertebral muscle spasm and tenderness which was worse on the left side. He had decreased sensation on his left calf and the dorsum of his left foot. His straight leg raising was limited to 50 per cent on his left leg.
87Professor Bittar reviewed the MRI scan performed on 18 May 2016. He observed that this demonstrated disc desiccation at L4-L5 and L5-S1. There was a disc bulge at L5-S1, but it was not compressing the S1 nerve roots. At L4-L5 there was a disc bulge and an annular tear, with the disc bulge contacting the left L5 nerve root in the subarticular compartment. The pain was worse when standing. Professor Bittar diagnosed an L4-L5 disc prolapse with L5 radiculopathy.
88Mr Rahim was reviewed again on 19 June 2017 and his condition was unchanged. Professor Bittar considered that he remained incapacitated for work. He also identified that a weight-bearing MRI of Mr Rahim’s lumbosacral spine performed on 4 April 2017 demonstrated the disc prolapse at L4-L5 which was compressing the left L5 nerve root and contacting the right L5 nerve root. Professor Bittar considered that this explained Mr Rahim’s symptoms.
89It was recommended that Mr Rahim undergo a left L5 nerve sheath injection with local anaesthetic and steroids to confirm whether the L4-L5 segment was the source of most of Mr Rahim’s symptoms. Professor Bittar also recommended a review by pain specialist, Dr Weekes.
90Professor Bittar reviewed Mr Rahim again on 4 September 2017 and on 21 November 2017. By then Mr Rahim had undergone the nerve sheath injection, but it had not produced any significant benefit. Professor Bittar was reluctant to recommend surgery and instead recommended nerve conduction studies to confirm the diagnosis.
91On 14 February 2018, Mr Rahim underwent nerve conduction studies. Professor Bittar confirmed the finding of mild irritation of the left L5 nerve root, consistent with Mr Rahim’s pain and the findings on imaging.
92Professor Bittar concluded that Mr Rahim was likely to suffer from significant pain and disability into the foreseeable future and in his opinion was likely to remain totally incapacitated for work into the foreseeable future.
Dr Gavin Weekes – treating pain specialist
93Dr Gavin Weekes, pain specialist, first reviewed Mr Rahim on 28 September 2017 on referral from Professor Bittar. Mr Rahim complained of lower back pain and radiation into both his lower limbs. He described functional limitations including a standing tolerance of 15 minutes and a walking tolerance of 20 to 30 minutes. He was taking Lyrica 75mg in the morning and 150mg in the evening, as well as Mobic, Panadeine Extra and Tramadol.
94Mr Rahim described how he sustained his injury, consistent with what he reported to Professor Bittar. He said following the incident he experienced the onset of lower back pain radiating down both legs and into the soles of his feet. He had some paraesthesia and numbness on the left side of the L5-S1 dermatome, with an average pain score of 8/10. His pain was aggravated by sitting, standing, and walking but was relieved by medication. MRI imaging had revealed an L4-L5 disc-protrusion with a compromised left L5 nerve root.
95Mr Rahim attempted to return to work on light duties in December 2016 but failed due to pain. He had ongoing functional limitation because of severe pain.
96On examination Mr Rahim had slight flexion bias of his lumbar spine. Both his flexion and extension were severely limited, secondary to pain from his lumbar spine. He had paraspinal tenderness over his lower lumbar facet joints, but he was more tender over his sacroiliac joints bilaterally. He had grossly reduced power from his left leg compared to his right. He could not elicit any focal neurology.
97Following the left L5 nerve block with local anaesthetic and steroid on 18 November 2017, Dr Weekes reviewed Mr Rahim again on 7 December 2017. He noted the non-diagnostic nerve root block. However, also noted that Mr Rahim continued to complain of lower back pain with radiation down both limbs. He noted that the maximum tender point in his lower back was over the sacroiliac joints.
98Mr Weekes reviewed Mr Rahim again on 15 December 2017 and recorded that Mr Rahim had noticed significant pain reduction for 48 hours following the nerve root block procedure. His pain scores had reduced from 8/10 to 3/10. Dr Weekes recommended radiofrequency denervation. Mr Rahim was not keen to proceed. Mr Rahim continued to be prescribed Lyrica, Mobic and Panadeine Forte. He also commenced on Endep, an analgesic/antidepressant, as his mood was deteriorating.
99On 25 January 2018, Mr Rahim underwent bilateral sacroiliac joint local anaesthetic and steroid injections.
100On 14 February 2018, Mr Rahim underwent nerve conduction studies of his lower limbs. They revealed some evidence of left L5 mild irritation.
101Dr Weekes concluded that Mr Rahim’s symptomatology was directly related to the workplace incident and he had no reason to believe that it was a recurrence, aggravation, or exacerbation of a pre-existing injury. He diagnosed lumbosacral spondylosis with some radiological and electrophysiological evidence of left L5 nerve irritation. He recommended radiofrequency denervation. Because of the severity of pain and functional limitation, Dr Weekes considered that Mr Rahim had no fitness for pre-injury employment or alternate duties.
Plaintiff’s medico-legal reports
Dr Richard Sullivan – pain specialist
102Dr Richard Sullivan, pain specialist, examined Mr Rahim and prepared three reports dated 29 April 2019, 29 May 2020, and 10 May 2021.
103In his report dated 29 May 2020, which was prepared following an examination in the presence of an interpreter, Dr Sullivan observed that the radiology reports he had seen were consistent with the diagnosis of lumbar spondylosis, central sensitisation, and the patient’s history.
104Dr Sullivan noted that Mr Rahim presented with chronic lower back pain. He was withdrawn. He required an interpreter but responded in a frank and forthright manner. He had limitations in his lumbar flexion and extension. He was able to heel stand and toe stand, albeit only briefly. Testing of his dorsiflexion and plantar flexion showed no substantive weakness. Sensation loss was non-dermatomal affecting his posterior calves and the ventral aspect of both feet. There was some suggestion of left L5 dermatomal impingement to pinprick sensation. The paravertebral musculature was tight and painful on palpation.
105Dr Sullivan concluded that Mr Rahim’s condition was stable, but that chronic pain would continue to adversely affect his functional capacity for the foreseeable future. He opined that he could not return to his pre-injury employment. He had attempted modified duties but had been unable to sustain them. He considered that Mr Rahim’s capacity to return to alternate duties, or modified hours, was permanently impaired, and he was incapacitated in respect of any of the employment options referred to in the Nabenet vocational assessment report of 21 December 2017.
106In his 10 May 2021 report, Dr Sullivan again recounted Mr Rahim’s clinical history and noted that his presentation and history remained the same. Mr Rahim was taking Targin 10/5mg twice per day, Pregabalin 150mg twice per day, Meloxicam 15 mg daily and mirtazapine 30mg daily. He reported that the medications impaired his memory and ability to focus and caused drowsiness throughout the day.
107Since his earlier report, Mr Rahim had undergone a trial of spinal cord stimulation with his treating clinician Dr Weekes. There had been no significant improvement in his pain to justify permanent implantation of the neuromodulation system.
108Mr Rahim had undergone a further MRI scan of his lumbosacral region on 22 February 2021. The MRI had reported multi-level disc space narrowing with posterior disc protrusion, without overt neural impingement. There was facet joint arthropathy extending from L3-L4 down to, and including, L5-S1. A paracentral disc protrusion was noted at T12-L1. It predominated on the left side and contacted the distal cord. There was no signal change noted associated with the structural anomaly.
109Dr Sullivan concluded that Mr Rahim suffered from aggravation of lumbar spondylosis causing chronic pain affecting his lower back. He also had pain affecting his bilateral lower limbs, contiguous with lower back pain. Mr Rahim’s condition was consistent with his employment being a contributing factor.
110Dr Sullivan considered that Mr Rahim was permanently precluded from returning to alternative duties for the foreseeable future due to the severity of his underlying pain, his associated functional limitations with respect to walking, sitting, driving, lifting, pushing, and pulling, and taking into account his lack of transferable skills and the medication he takes.
111Dr Sullivan concluded that Mr Rahim was not suitable for any of the employment options proposed by Nabenet in its report dated 21 December 2017, or by Recovre in the vocational assessment report dated 7 January 2019.
Dr Hazem Akil – neurosurgeon
112Dr Hazem Akil, neurosurgeon, prepared a report dated 8 May 2019. Mr Rahim’s history of severe pain in his lower back, primarily centred on the left side, was noted. This related to his employment duties on 16 May 2016 which involved bending, lifting, pulling, and pushing heavy objects. On 17 May 2016, Mr Rahim experienced pain and discomfort in both his feet. The pain radiated towards his buttocks and to the left lateral thigh above the knee.
113Dr Akil reviewed the weight-bearing MRI scan performed in April 2017 and noted that there were annular fissures affecting the L4-L5 level and, to a lesser degree, the L5-S1 level. He could not detect signs of neural compression but noted that the L4-L5 disc bulge contacted the left L5 nerve root.
114Mr Rahim was noted to be taking Lyrica, Targin, Mobic and Panadeine Forte.
115Having considered Mr Rahim’s history and presentation, Dr Akil concluded that he was not fit for his pre-injury employment and given his current symptoms, his type of education (religious) in Afghanistan, as well as his moderate proficiency of English, he did not consider there to be an appropriate type of employment for him in Australia.
Dr Mohammed Awad – neurosurgeon
116Dr Mohammed Awad, neurosurgeon, prepared a report dated 29 May 2020 following his review of Mr Rahim on the same day.
117The history provided by Mr Rahim to Dr Awad was that he had started to have some back pain in around 2014. He did not have a prior medical history of lumbar spine injuries or symptoms. After 2014, he worked as a labourer and general hand in a sheet metal factory. His job involved a lot of heavy lifting, bending, twisting, and was physically demanding on his spine. He continued to do his normal duties despite the onset of increasing pain.
118In May 2016 his pain became increasingly severe. It was so severe that by 17 May 2016, he was unable to continue working. Following an MRI scan and some time off work, he eventually managed to return to work in December 2016, on light duties. This only lasted for a few days though, as he could not cope with the level of pain he was experiencing. He has not returned to work since.
119Mr Rahim had undergone several conservative treatments, none of which helped. He remained symptomatic. He had constant lower back pain anywhere between 4 to 8/10. He had a sitting time of 20 to 30 minutes and a walking time of up to 30 minutes with rest periods. He had poor, broken sleep and bilateral back pain running down the back of his legs towards his heels. He did not feel any true numbness.
120He was taking Targin, Lyrica, Mobic, and Avanza on a regular daily basis.
121His injury had significantly affected his lifestyle. Mr Rahim had previously worked two jobs side-by-side most of the time. He could no longer do anything. He described how playtime with his children had been affected, as had his ability to drive. He could no longer take trips interstate with his family in the car. His injury had affected his mood and his relationship with his wife.
122Dr Awad referred to an x-ray which had been taken of Mr Rahim’s thoracolumbar spine on 24 October 2014. This showed some possible disc degeneration at T10-T11, but nothing in the lumbar spine.
123The MRI scan dated 18 May 2016 concluded that there was mild disc desiccation at L4-L5 and L5-S1 without disc height loss. There was a disc bulge at L3-L4, L4-L5 and L5-S1 with narrowing of the neural foramina, but there was no focal nerve compression. There was a bilateral annulus tear at the L4-L5 level on the left. The report suggested that this may have been the source of Mr Rahim’s symptoms.
124The weight-bearing MRI dated 4 April 2017 concluded there was a moderate broad-based disc bulge at L4-L5 resulting in mild central canal narrowing. It was asymmetric in the left paracentral foraminal region, compressing the proximal traversing left L5 nerve root and contacting the proximal L4 nerve root.
125The MRI of Mr Rahim’s lumbar spine from 27 March 2020 showed lumbar disc degeneration, with left foraminal and lateral protrusion at the L3-L4 level. This was causing some nerve pressure.
126Dr Awad concluded that Mr Rahim had aggravation of lumbar spondylosis and that his condition was permanent. He considered that Mr Rahim’s heavy and repetitive workplace activities had significantly contributed to his injury and he did not have the physical capacity to undertake his pre-injury employment.
127Theoretically, Mr Rahim had capacity for alternate light employment for two to three hours, up to two to three days per week, if a suitable job was available. Considering Mr Rahim’s age, education, training, skills, work experience, as well as the nature and severity of his lumbar spine condition, Dr Awad thought it was unlikely that Mr Rahim would be able to procure such suitable employment, or, if he did, that he would be able to perform it consistently and reliably. He would not be able to perform any of the tasks identified in the vocational assessment reports dated 21 September 2017 or 7 January 2019.
128On 9 July 2021, Dr Awad reviewed Mr Rahim again and prepared a further report. Mr Rahim continued to have constant low back pain. The intensity of the pain was anywhere from 4 to 8/10, which was consistent with his earlier reporting. He complained of bilateral leg pain which he felt more in his heels, but without associated numbness. Mr Rahim had a maximum sitting or standing time of 20 to 30 minutes. He also continued to describe having broken sleep some nights because of back pain.
129He continued to be prescribed Targin, Lyrica, Mobic and Avanza as well as home exercises.
130Dr Awad noted an additional MRI scan taken on 22 February 2021 which documented evidence of facet joint arthropathy throughout Mr Rahim’s lumbar spine. There was also a left paracentral disc protrusion at T12-L1. Otherwise, the MRI scan was similar to previous scans.
131On physical examination, Mr Rahim was noted to have more limited flexion than earlier examinations. His flexion was only 20 degrees. He also had extremely limited extension of only 5 to 10 degrees. Mr Rahim was able to stand on his heels and toes. He had normal sensation throughout his lower limbs with normal reflexes.
132Dr Awad considered that Mr Rahim’s injury was “entirely consistent with its stated cause”. His diagnosis remained: permanent aggravation of lumbar spondylosis because of Mr Rahim’s workplace injury.
133Taking account of the back injury alone, and disregarding any consequences or sequelae, Dr Awad did not consider that Mr Rahim had any realistic capacity for any alternative employment. He reviewed the Nabenet vocational assessment report dated 20 December 2020 and did not believe Mr Rahim could perform any of the proposed employment options. His pain threshold with any form of mobility would limit him from doing any of the tasks consistently and reliably. The same conclusion was reached in relation to the vocational assessment report dated 7 January 2019.
Dr Siva Chandrasekaran – orthopaedic surgeon
134Dr Siva Chandrasekaran, orthopaedic surgeon, prepared a report dated 27 May 2019. He noted Mr Rahim’s account of having injured his lower back in May 2016 which was consistent with what Mr Rahim reported to Professor Bittar.
135At the date of the review – 27 May 2019 – Mr Rahim was complaining of constant lower back pain. The pain was of such a level that it was causing daily sleep disturbance. Lifting weights, walking more than one kilometre, or sitting or standing for more than 30 minutes, exacerbated the pain. The pain impacted his social life and he had reduced capacity to perform activities of daily living.
136On examination Mr Rahim walked with an antalgic gait. He had flexion of his lumbar spine of 20 degrees and extension of 5 degrees. His lateral flexion was 10 degrees to the right and 10 degrees to the left. He could not walk on his toes or his heels. He had a straight leg raise of approximately 15 degrees bilaterally with grade 5 power of hip flexion, abduction, knee flexion and extension, ankle flexion and extension and big toe extension. There were no sensory changes.
137Dr Chandrasekaran diagnosed an L4-L5 disc prolapse with L5 radiculopathy and considered that the condition was consistent with the stated cause. He opined that Mr Rahim was not fit for his pre-injury employment. He identified that Mr Rahim had difficulty walking, standing, and sitting, and could not perform any labour-intense activities involving bending and lifting. He was not suited to any sedentary role because sitting increased his pain.
138He identified that Mr Rahim had experienced one to two days’ relief from the radio frequency trial and suggested that he may benefit from a more permanent ablated therapy.
Defendant’s medico-legal reports
Dr Graeme Doig – general orthopaedics and trauma
139Dr Graeme Doig, orthopaedic surgeon, prepared two reports dated 23 February 2017 and 16 July 2021. His most recent report followed his examination of Mr Rahim on 5 July 2021.
140Dr Doig referred to the MRI scan of May 2016 which revealed minor disc desiccation at the L4-L5 and L5-S1 levels. He also referred to the MRI scan of March 2020 which revealed a degenerative disc with an annular fissure at the L3-L4 level. There was possible impingement of the left L3 nerve-root on a background of multiple minor disc bulges. The more recent MRI scan of February 2021 confirmed the multi-level disc bulges; particularly at the L3-L4 level. It also identified moderate facet joint degeneration. He noted Mr Rahim’s referral to a pain specialist and to the trial of spinal cord stimulation in December 2020 which had resulted in no improvement to Mr Rahim’s condition. Mr Rahim had been referred to a neurosurgeon who felt that operative intervention was not appropriate.
141Dr Doig noted that Mr Rahim’s current medications were Lyrica 150mg b.d., Targin 10/5 b.d. and Mobic 15 mg to control his musculoskeletal symptoms. He was also taking Avanza for his anxiety and depression. Dr Doig noted that the medications were outside his expertise.
142On clinical examination, Mr Rahim walked slowly into Dr Doig’s consulting rooms. He held his spine straight and presented with low affect. Dr Doig considered that he presented with “elements of functional overlay”. Mr Rahim had localised tenderness to the lumbo-sacral region of the spine. He also had significant restrictions in spinal movement with only 30 degrees of forward flexion and 5 degrees of extension. He had reduced lateral flexion to the left. He had reasonable rotation.
143Dr Doig suggested that Mr Rahim had a soft-tissue injury to his lower back on the basis that he considered that there was minimal pathology on his initial medical imaging. However, he also observed that the MRI reports had “changed over the years”. Dr Doig considered that Mr Rahim had chronic pain with secondary psychological problems and functional overlay “far in excess of any identifiable pathology on his medical imaging”.
144Dr Doig considered that from a purely musculoskeletal perspective, Mr Rahim was fit for suitable employment. He could not return to his pre-injury employment due to the demands of the position. However, with restrictions on lifting, pushing, pulling, bending, and twisting, and a “sympathetic employer”, his opinion was that Mr Rahim might be fit for a light pick/packer or process worker role. While outside his area of expertise, his view was that Mr Rahim would be unable to drive a forklift given his back condition, time out of the workforce, de-conditioning, levels of concentration and the sedative medication he had been prescribed. He also noted that his poor command of English could affect his ability to re-train and that if a suitable position was identified, Mr Rahim initially would require restricted hours.
145Dr Doig also considered that Mr Rahim would have difficulty with all activities of daily living, including domestic, social, and recreational activities. He opined that Mr Rahim presented with signs of abnormal illness behaviour and exaggeration. His apparent significant restrictions appeared excessive relative to any pathology identified on his medical imaging.
Plaintiff’s rehabilitation reports
Dr Kilner Brasier – occupational physician
146Mr Rahim was referred to Dr Kilner Brasier, occupational physician, for the purpose of undertaking an independent occupational assessment.
147Dr Brasier in his first report dated 7 August 2018 referred to Mr Rahim’s injury and detailed Mr Rahim’s employment as a process worker and a machine operator. He described the heavy labouring involved in Mr Rahim’s work, including repetitive bending, lifting, and carrying. Reference was also made to Mr Rahim’s lack of formal qualifications and his limited transferrable skills, knowledge and experience.
148Dr Brasier reported that Mr Rahim had attempted a return to pre-injury employment but had been unable to progress because the continuous standing and twisting aggravated his pain.
149Dr Brasier opined that Mr Rahim’s condition was work related and arose predominantly from his organic injury. It had rendered him unfit for his pre-injury duties, the duties provided to him when he returned to work in December 2016, and any of the duties referred to in the Nabenet vocational assessment.
150At the time Dr Brasier prepared his later report dated 12 July 2019, Mr Rahim continued to complain of constant lower back pain bilaterally in the sacroiliac area, with the left side being more severe than the right. The pain was of severity ranging from 8 to 9/10 and radiated to both legs, buttocks, and feet. Mr Rahim’s pain was aggravated by standing or sitting for extended periods and he could only tolerate 30 minutes of driving. He also complained of some urinary urgency.
151On examination, Mr Rahim had lost 5 kilograms and his gait was antalgic. His lumbar spine was unchanged apart from his forward flexion, which was worse. It was 20 degrees using his hands to support his thighs. His straight leg raising while sitting was only 30 degrees. His medications included Targin 10mg/5mg twice daily, Lyrica 150 mg twice a day, Mobic 15mg daily, Avanza 30mg at night and Panadeine Forte two to three times a day.
152Dr Brasier opined that Mr Rahim had suffered an L2-L3 left paracentral disc protrusion, contacting the proximal traversing left L3 nerve root. At L4-L5, he had suffered an annular tear. There was a broad-based disc bulge compressing the proximal traversing left L5 nerve root. There was contact with the proximal traversing right L5 nerve root. This was associated with mild central canal narrowing and a mild bilateral neural foraminal stenosis. There was facet joint arthropathy at L3-L4 and L5-S1. Dr Brasier concluded that Mr Rahim’s conditions were consistent with the stated cause and were related to his employment. He considered that Mr Rahim had no capacity for his pre-injury employment or alternative duties.
153Dr Brasier did not consider that Mr Rahim had capacity to perform any of the possible employment options referred to in the Nabenet vocational assessment report dated 21 December 2017, including roles as a customer service officer, warehouse supervisor, packer (light items), trade sales assistant and product examiner. He also did not consider that Mr Rahim had capacity to perform the roles of picker packer, process worker and forklift driver referred to in the vocational assessment report of Recovre dated 7 January 2019.
Dr Robyn Horsley - occupational physician
154Dr Robyn Horsley, occupational physician, prepared reports dated 2 June 2020, 11 June 2020 and 27 May 2021.
155In her most recent report, Dr Horsley noted Mr Rahim’s presentation with ongoing disability related to his lumbar spine. He was taking Targin 10/5 mg one tablet twice a day, Lyrica 150mg one tablet twice a day, Mobic 15mg one tablet per day and Avanza 30mg one tablet per day.
156Dr Horsley referred to Mr Rahim’s injury, his medical history, and his current symptoms, including his chronic back pain. Mr Rahim’s back pain was described as varying in intensity from 6 to 8/10, although most of the time it was 7/10. The pain was in his lower lumbar spine and radiated to the left buttock and down the left leg posterolaterally. At times Mr Rahim experienced discomfort in both anterior thighs and he also experienced bilateral heel pain. He had no paraesthesia or numbness in his lower limbs and no bowel or bladder symptoms. He had greater difficulty ascending stairs than descending, and the cold weather exacerbated his pain.
157Mr Rahim’s functional tolerances were noted as being 30 minutes for each of sitting, static and dynamic standing, and walking.
158On clinical examination, Dr Horsley noted Mr Rahim presented with a flat affect. She observed the presence of fear avoidance behaviour. There were no trigger points on light touch palpation of his lower spine and the axial compression test was negative. However, he walked in a very stiff fashion. There was negligible movement in the thoracolumbar spine. Forward flexion was 30 degrees, extension was negligible, and left and right lateral flexion and left and right lateral rotation were limited to less than 15 degrees. Mild lumbar lordosis was also noted.
159Dr Horsley concluded that Mr Rahim had ongoing mechanical back pain and his presentation was compatible with the events on 16 May 2016. There was organic pathology for the pain, with the three annular fissures noted on the MRI scans likely to be the ongoing pain generators. There was also a paracentral disc protrusion. Mr Rahim had developed a chronic pain syndrome, poor functional tolerance and had been diagnosed with a major depressive disorder.
160Dr Horsley described Mr Rahim’s education and qualifications. Mr Rahim was not literate in his native tongue of Hazaragi, but, commendably, had good verbal English skills. He could read and understand about 80 per cent of the front page of the Herald Sun and he coped with the literacy requirements of a machine operator in a factory environment. His computer skills were average. He had a drivers’ licence and a forklift licence, but otherwise had no formal qualifications.
161In Dr Horsley’s opinion, given Mr Rahim’s condition, and not taking into consideration his mental health issues, Mr Rahim would have work restrictions which would apply to his lumbar spine. These would include matters such as avoiding repetitive reaching, pushing, pulling; avoiding using tools with a vibratory component; avoiding using equipment with exposure to whole body vibration through the footplate; avoiding lifting items greater than 10 kilograms occasionally, or 8 kilograms repetitively; avoiding truncal rotation; avoiding working in awkward or confined spaces; and using good manual handling techniques. He opined that Mr Rahim would be unsuitable to work on a forklift. His functional tolerance was poor, which would render him unfit for work generally.
162Dr Horsley’s opinion was that Mr Rahim’s poor presentation, his poor functional tolerances, the time he had out of the workforce, his literacy issues, his limited attention span and concentration, and his limited opportunities for redeployment, meant that he would remain out of the workforce into the longer term.
Defendant’s vocational assessments and rehabilitation reports
Recovre vocational assessment
163Janette Ash, occupational therapist, injury management consultant, and Nikki Burden, vocational consultant, both of Recovre, prepared a vocational assessment report dated 7 January 2019. At the time that was prepared, the authors had available to them only the reports of Dr David Barton dated 2 and 3 August 2016, the reports of Dr Joseph Slesenger dated 20 March 2018 and 3 May 2018, the report of Dr Graeme Doig dated 23 February 2017, Mr Rahim’s affidavit and the Nabenet vocational assessment report dated 21 December 2017.
164Based on Mr Rahim’s education, work history and transferable skills, the Recovre report considered that roles as a pick/packer, a process worker and a forklift driver were all suitable forms of employment for him.
Nabenet Vocational Assessment
165Belinda Grant, rehabilitation consultant from Nabenet, prepared a vocational assessment report dated 21 December 2017. The report was prepared based on medical information obtained from Dr D’Argent, Dr Peter Boys, consultant orthopaedic surgeon, and Dr Kennedy, forensic psychologist.
166The Nabenet report suggested that occupations such as customer service operator, warehouse supervisor, light packer, trade sales assistant, and product examiner may be suitable.
167Dr Boys opined that Mr Rahim’s injury reflected an aggravation of pre-existing degenerative changes within the lumbar spine. Employment was noted to have been a contributing factor. Dr Boys did not consider that Mr Rahim was a surgical candidate. Dr Boys concluded that Mr Rahim was not fit for his pre-injury duties or employment. Mr Rahim may have been suitable for light warehouse-based employment or employment as a sales assistant or product examiner.
Dr David Barton – occupational physician
168Dr David Barton, occupational physician, prepared two reports dated 2 and 3 August 2016 following a consultation with Mr Rahim on 27 July 2016.
169Mr Rahim had a history of lower back pain following an injury on 17 May 2016. The MRI scan had been reported by the radiologist as showing a lateral annular tear which the radiologist said may have been the cause of Mr Rahim’s pain. In Dr Barton’s view the annular tear was “questionable”.
170Dr Barton examined Mr Rahim and found there was a “considerable degree of illness behaviour apparent”. He referred to Mr Rahim holding onto his back repeatedly, moving in a cautious manner, walking as if his feet were tender, and grimacing and complaining of pain. On examination his back was tender to palpation throughout the lumbar spine extending to the left side. Forward flexion was limited to reaching the mid-thigh level. Straight leg raising was limited on both legs to 10 degrees.
171Dr Barton took the view that Mr Rahim was suffering from a soft tissue back injury complicated by functional overlay. He noted “contrived” grimacing and complaints of pain, “non-anatomical sensory changes” and the lack of any “clear objective evidence of any physical problem”. His conclusion was that he believed that Mr Rahim could return to work and that “motivational factors were playing a significant part in his recovery” along with “poor medical advice”.
Dr Joseph Slesenger – occupational physician
172Dr Joseph Slesenger, occupational physician, prepared seven reports dated 20 March 2018, 3 May 2018, 1 January 2019, 9 January 2019, 19 May 2020, 9 June 2020, and 13 May 2021. The reports followed assessments of Mr Rahim, respectively, on 19 March 2018, 18 December 2018, 22 April 2020, 3 June 2020, and 11 May 2021.
173In his most recent report, Dr Slesenger noted the circumstances of Mr Rahim’s injury and the imaging showing evidence of an annular tear in the lumbar disc. He noted Mr Rahim’s reported symptoms of ongoing lower back pain at a moderate to severe level, centred in the lower back. The pain radiated into both legs and the left leg was worse than the right.
174Mr Rahim’s functional capacity was such that he could sit, walk, and stand for 20 minutes.
175Dr Slesenger observed Mr Rahim walking with a stiff but symmetrical gait; verbalising and grimacing; having difficulty mobilising; being able to sit with his legs extended over the edge of the examination couch and being able to stand on his tiptoes and his heels but being unable to squat. There was tenderness over the lumbosacral junction, the left lumbar spine and the paraspinal musculature. He had no flexion, extension and only 10 degrees of right and left rotation and right and left lateral tilting. He was observed to have an improved range of lumbosacral spinal movements upon distraction.
176Mr Rahim was taking Lyrica 150 mg twice daily, Targin 10/5 mg twice daily, Mobic once a day, Panadol Osteo up to two to three times a day, Avanza at night and Panadeine Forte occasionally. An unsuccessful trial of spinal cord stimulation was noted. Mr Rahim continued to participate in a self-managed exercise program, although he was no longer continuing to attend physiotherapy or hydrotherapy and was attending a psychologist every three weeks.
177Dr Slesenger thought that the prognosis for Mr Rahim “must be guarded” given the length of his impairment and his poor response to treatment. He considered that he could not return to his pre-injury duties but that he retained a capacity for work with restrictions including no pushing, pulling, carrying, or lifting over 10 kilograms. He recommended that Mr Rahim would need to avoid sustained static postures and not expose himself to whole body vibrations or repetitive bending or twisting. It was recommended that Mr Rahim could return to work for four hours a day, four days a week increasing to his pre-injury hours over the course of six weeks.
178Of the employment options suggested by Recovre in its vocational assessment dated 7 January 2019, Dr Slesenger considered that the tasks of a pick/packer lay within Mr Rahim’s capacity limits; although he recommended that Mr Rahim rotate through the workstations in order to avoid prolonged static postures. He also considered that Mr Rahim could return to work in the roles of a picker or an assembler/packer. He recommended that he rotate through the workstations to avoid prolonged static postures.
Was a compensable injury sustained on 16 May 2016?
179It was common ground, and I accept, that there was an incident on 16 May 2016, which caused Mr Rahim to be injured and to have consequences in terms of pain and functional ability. Mr Rahim described the incident to Dr Pereira who referred him to Dr Khan, an orthopaedic surgeon. MRI scans were ordered. Further, Mr Rahim consistently described to several doctors, including Dr D’Argent who he commenced to consult on 31 May 2016, and Dr Barton on 2 August 2016, the development, on 16 May 2016, of sudden onset severe low back pain which was worst in the left lower lumbar region. Mr Rahim’s account of how he was injured was not seriously challenged by any of the medical practitioners and I accept that on 16 May 2016 Mr Rahim was injured in the course of his employment and sustained injury to his spine.
180In the year prior to the injury on 16 May 2016, Mr Rahim experienced some intermittent pain in his lower back. Dr D’Argent recorded this in her first report dated 7 June 2017. The report did not suggest that the prior pain placed any significant limitations on Mr Rahim in terms of his enjoyment of life or his ability to work. Neither did it suggest that Mr Rahim had experienced a gradual onset of pain. Similarly, although Dr Jancovic referred to Mr Rahim having experienced some “minor intermittent pain for some time”, he also did not suggest that the injury was the result of a pre-existing condition. On the contrary, he said that the injury occurred at work while Mr Rahim was doing a task involving repeated lifting and bending of heavy metal parts for welding. For each of these reasons, I find that Mr Rahim did not have a relevant pre-existing back condition which was productive of impairment consequences or functional limitation, immediately before the incident on 16 May 2016.
181In any event, even if there had been evidence of a pre-existing back condition, it is not relevant because it was not symptomatic or productive of any impairment consequence, nor was it impacting on Mr Rahim’s ability to earn income in the employment he was in at the time of the incident on 16 May 2016.
Nature of the injury sustained by Mr Rahim on 16 May 2016 – radiology reports
182The MRI scan of the lumbosacral spine dated 18 May 2016 revealed that Mr Rahim had mild disc desiccation at L4-L5 and L5-S1 without disc height loss. There was a disc bulge at L3-L4, L4-L5 and L5-S1 with narrowing of the neural foramina, and definite focal nerve compression. There was also a far lateral annulus tear reported at the L4-L5 level on the left which the radiologist noted “may have been the source of the patient’s symptoms”.
183The weight-bearing lumbosacral spine MRI conducted on 4 April 2017 showed moderate broad-based disc at L4-L5, resulting in mild central canal narrowing, and asymmetric in the left paracentral/foraminal region compression the proximal traversing left L5 nerve root and contacting the proximal.
184The annular tear, and the extent of it, were subsequently confirmed by the MRI lumbar spine taken on 27 March 2020. The radiologist reported three annular fissures: an L3-L4 annular fissure which was said to be associated with “a small foraminal and lateral protrusion which contacts and is likely to irritate the exiting L3 nerve” at the L4-L5 level “a disc bulge indents the thecal sac. An annular fissure is present”. A further annular fissure is present at the L5-S1 level on the left.
185On 22 February 2021, a further MRI Lumbar spine was undertaken which documented evidence of facet joint arthropathy throughout Mr Rahim’s lumbar spine and a left paracentral disc protrusion at T12-L1. Otherwise, the MRI scan was similar to previous scans.
186Professor Bittar examined Mr Rahim on 19 June 2017 (he had also examined him on 10 February 2017). At the first examination, Professor Bittar had available to him the 18 May 2016 MRI scan. He examined Mr Rahim again on 21 November 2017 and subsequently prepared a report dated 18 March 2018.
187In preparing the report dated 18 March 2018, Professor Bittar reviewed the 4 April 2017 weight-bearing MRI scan. He observed:
“I reviewed his weight-bearing MRI lumbosacral spine which was performed on April 4, 2017. This was most helpful, as it demonstrates the disc prolapse at L4/5 which is compressing the left L5 nerve root and contacting the right L5 nerve root. This would certainly explain his symptoms.”
188When Dr Akil, neurosurgeon, examined Mr Rahim in May 2019, he also reviewed the April 2017 weight-bearing MRI scan and said he could see that there were “annular fissures affecting primarily the level of L4/L5 as well as to a lesser degree L5/S1”. He could not detect signs of neural compression, but he did note that the L4-L5 disc bulge contacted the left L5 nerve root. He concluded that Mr Rahim “most likely had back pain caused by annular fissures affecting two levels of L4/L5 and L5/S1”. The prognosis was stated to be poor, and the pain was reported as having been ongoing for a long time. There was no suggestion that Mr Rahim was exaggerating his symptoms.
189Subsequently, Dr Chandrasekaran, orthopaedic surgeon, in his report dated 27 May 2019 also noted disc desiccation of L4-L5 and L5-S1. He reported the 18 May 2016 MRI scan as disclosing “a disc-bulge at L5-S1 which was not compressing the S1 nerve root. At L4-L5 there was a disc bulge and an annular tear with the disc bulge contacting the left L5 nerve root in the sub-articular compartment”.
190Dr Awad on 29 May 2020 summarised Mr Rahim’s radiological investigations as follows:
“MRI of his lumbar spine from 27 March 2020 shows lumbar disc degeneration with left foraminal and lateral protrusion at the L3/4 level causing some nerve pressure. He also has an MRI scan from 18 May 2016. This concludes mild disc desiccation at L4/5 and L5/S1 without disc height loss. There is disc bulge at L3/4, L4/5 and L5/S1 with narrowing of the neural foramina, but no definite focal nerve compression. There is a bilateral annulus tear at the L4/5 level on the left which may be the source of the patient’s symptoms. He also has a weight-bearing MRI scan of his lumbosacral spine from 4 April, 2017. This concludes a moderate broad-based disc at L4/5 resulting in mild central canal narrowing and asymmetric on the left paracentral foraminal region compressing the proximal traversing left L5 nerve root and contacting the proximal L4 nerve root.”
191The 22 February 2021 MRI of the lumbar spine was reported by Dr Richard Sullivan, pain specialist, as showing multi-level disc space narrowing with posterior disc protrusion without overt neural impingement and facet joint arthropathy extending from L3-L4 down to and including L5-S1. Paracentral disc protrusion was noted at T12-L1 predominating on the left side with contact of the distal cord, but without signal change noted associated with the structural anomaly. Mr Rahim suffered from aggravation of lumbar spondylosis causing chronic pain affecting his lower back and pain affecting his bilateral lower limbs, contiguous with the lower back pain.
192In his further report dated 9 July 2021, Dr Awad noted that not much had changed in Mr Rahim’s condition. He continued to suffer from aggravation of lumbar spondylosis. His prognosis was said to be such that he would be likely to suffer the consequences of his injury in the form of some degree of ongoing pain and disability into the foreseeable future.
193The radiology evidence supports a conclusion, and I find, that as a result of the incident on 16 May 2016, Mr Rahim sustained an injury to his spine which comprised mild disc desiccation at L4-L5 and L5-S1; a disc bulge at L3-L4, L4-L5 and L5-S1 with narrowing of the neural foramina; focal nerve compression, and a far lateral annulus tear at the L4-L5 level.
230In my view though, notwithstanding this, the surveillance footage is not a video that impacts significantly on Mr Rahim’s credit.
231First, Mr Rahim, did not materially deny he had undertaken the rock fishing activities at the time the surveillance footage was taken. Neither did he deny that he had been fishing. The fact that Mr Rahim did not refer to fishing in his affidavit is not important. He did not try to conceal it. On the contrary, in response to an open-ended question in cross-examination about whether he had been able to do any sporting activities or outdoor activities since he injured his back in 2016, he volunteered without prompting, the fact that he went fishing. Further, the length of time he could be said to have engaged in fishing was very imprecise. He said he could not really remember, and this was not inconsistent with the video surveillance footage.
232Second, in isolation, the video surveillance footage shown is not particularly remarkable. The defendant conducted 117 hours of surveillance, yet only two hours and 26 minutes footage was generated of which the bulk showed Mr Rahim essentially stationary, either sitting or standing. It is impossible to know with certainty what activity occurred during the footage which was not available. A reasonable inference could be drawn that the balance of the footage not shown, was of less forensic impact. The footage tendered is therefore the high watermark and it is selective.
233During the two hours and 26 minutes relied upon by the defendant, Mr Rahim is seen to bend or twist, reel in a fish, or walk quickly across rocks only a limited number of times. The best that can be said is that Mr Rahim engaged in some low-level physical activity for a very short time. The extent of the fishing was minimal and was consistent with what Mr Rahim told his doctors about his pain tolerances. In my view the video surveillance does not reasonably permit me to discern a reliable pattern of ability and pain-free activity such that I could find that Mr Rahim was pain-free.
234Third, I do not think it appropriate to compare Mr Rahim’s activities as shown on the video recordings with everything he said in his affidavits or to each of the doctors who had examined him. In my view, the better approach is to compare Mr Rahim’s description of his symptoms at, or as close as possible to, 18 February 2020, being the relevant date of surveillance.
235Fourth, as Mr Rahim tried to explain when cross-examined, the amount of physical activity he can do, and the time that he rests each day, depends on the amount of sleep he has been able to have on the preceding night. The amount of sleep he has been able to have in turn impacts the intensity of his pain, which varies each day. This was consistent with what Mr Rahim told Dr Sullivan on 29 May 2020 when Dr Sullivan recorded that Mr Rahim’s “pain intensity ranges between 4/10 and 8/10 numerical rating scale with an average day rating approximately 6-7/10 and fairly trivial or modest activities leading to substantive pain aggravation”. It is also consistent with what Mr Rahim told Dr Horsley on 2 June 2020, when he said that his pain “varies in intensity from 4 to 5 out of 10, up to 8 out of 10 on the visual analogue scale. Most of the time, it is 8 out of 10, which prompts him to lie down for 15 minutes every couple of hours during the day”.
236Fifth, just because Mr Rahim was able to bend, squat or walk on uneven surfaces does not necessarily mean that his account of pain should be disregarded. As Mr Rahim said in relation to his apparent ability to squat demonstrated on the surveillance footage:
“Although it looks easy, but I cannot say that it was easy for me. It was difficult. I had pain.”[50]
[50]T43, L12-13
237Similarly, in relation to his ability to walk over uneven, rocky, surfaces, Mr Rahim’s answer was:
“It wasn’t normal for me, it was difficult for me, but I went there for my relaxation, for my peace of mind.”[51]
[51]T39, L16-18
238Sixth, Mr Rahim’s pain on any given day, also depends on the medication he has taken. At around the time of the surveillance footage, Mr Sullivan noted that Mr Rahim was taking Targin 10/5 mg twice daily, Pregabalin 150mg twice daily, Meloxicam 30 mg daily and Mirtazapine 50mg daily. As Mr Rahim said:
“[E]very day varies and also it depends on the medication. Sometimes when I have the medication it takes a while for the medication to begin working and therefore allow me to do certain movements easier.”[52]
[52]T43, L15-19
239It is entirely possible, and consistent with Mr Rahim’s evidence, that he may have been in pain when rock fishing on 18 February 2020, but that he was nevertheless able to perform the bending and reeling activities observed on the surveillance footage because the medications were masking the effects of his pain. As he said:
“Most of the time when you’re under heavy medication then you’re able to do things that later on you start getting pain, and so at that time I had medication so I was able to do those sort of things where later on, you know, the pain would come on later.”[53]
[53]T47, L-25-30
240There was no evidence that contradicted Mr Rahim’s account in this regard.
241Alternatively, it is possible that Mr Rahim had genuine pain but engaged in fishing on the advice of his psychologist to get out and be active for his mental health.
242Seventh, I do not accept the defendant’s submission that if Mr Rahim’s complaints are genuine and related to an organic injury, his pain and functional abilities ought to be generally consistent. As set out above, there is objective evidence of deterioration in Mr Rahim’s spine demonstrated by the radiology. In those circumstances, fluctuations in pain and functional ability are to be expected.
243Even if the conclusion I have reached with respect to the video surveillance is not correct, the surveillance footage provides only some basis from which to evaluate Mr Rahim’s credit. It does not provide the entire picture.
Uber earnings
244The defendant further submitted that Mr Rahim’s credit was also impugned on the basis that he had significantly overstated his Uber earnings for the purposes of bolstering his economic loss case. It was submitted that Mr Rahim had claimed to earn $500 gross per week from driving an Uber. This was said to be contradicted by his 2016 tax return which showed Uber income of only $930 after expenses or $71.53 gross per week (being $930 divided by 13 weeks).
245In fact, Mr Rahim’s evidence, disclosed in his 18 April 2018 affidavit, did not mention the word “gross”. It said, “I drove for Uber about 3 nights a week and earned on average about $500 per week”.[54] However, the affidavit also contained a further paragraph which stated that “[w]hen I stopped working, my income from both jobs was about $1,545 per week”.[55] The best that can be said about the affidavit evidence is that it is unclear.
[54]Affidavit of Jan Ali Rahim sworn 18 April 2018, at paragraph [43]
[55]Ibid at paragraph [44]
246In cross-examination Mr Rahim was challenged that the figure of $500 was made up to bolster his case for economic loss and was not based on documents. Mr Rahim denied this and said that he had proof. He also sought to clarify that he understood that the $500 per week was without any expenses. He said that when he worked for Uber, after each trip, he was provided with an estimated amount of earnings and that was how he came to the $500 figure. He said that he had provided a bank statement of the income he earned with Uber to his solicitors. While the defendant’s counsel said that a Notice to Produce had been issued, she was not certain whether that covered bank statements, and in any event no request to produce or inspect the bank statements was made at trial. In these circumstances, while there may have been a mistake in the final statement of Mr Rahim’s Uber earnings, it was not such as to damage his credit.
Change in medication dose and impact on finalisation of case
247The final matter relied upon by the defendant as impacting Mr Rahim’s credit, was the suggestion that he did not change his medication in April 2020 because he was concerned that the Court may not accept that he was as injured as he suggested. In my view, Mr Rahim’s response when challenged, did not demonstrate a concern that the Court may not accept how injured he was. Rather, Mr Rahim’s concern appeared to be a genuine concern that his case, which had already taken five years, could potentially be further delayed if he was prescribed new medications with side-effects. I do not consider that this affected his credit.
Conclusion on credibility
248The case must be decided on the whole of the evidence. I have considered the tenor of Mr Rahim’s evidence overall, including objective evidence of diagnostic tests and MRI scans. These were unaffected by Mr Rahim’s credit. I also considered the way Mr Rahim presented to his doctors, how he described his pain, and how he was observed to behave on video surveillance footage.
249I also had the benefit of observing Mr Rahim in court and watching him give evidence in the witness box over two days. I gained an impression of the evidence, and the import of it, as it was given. Mr Rahim presented with minimal emotion, limited facial expressions and generally with a flat affect. Nevertheless, he appeared to be a co-operative witness who answered questions honestly and did not seek to embellish the responses he gave during cross-examination, even when the answers he gave were unhelpful to his case. From my observation, Mr Rahim appeared to be an honest and credible witness.
250However, even if this is not correct, an adverse finding as to Mr Rahim’s credibility would not, in my view, justify refusal of his application given the objective radiological evidence which provides an organic basis for his pain.
Loss of earning consequences
251Mr Rahim is required to satisfy the Court, among other things, that the claimed impairment caused a loss of earning capacity of the requisite degree.
252Mr Rahim submits that he is no longer able to work, and consequently that he has sustained a loss of earning capacity of at least 40 per cent.
253The defendant submits that Mr Rahim has exaggerated his pain and its consequences and that he retains a capacity to undertake light work. The defendant submits that Mr Rahim has capacity to work in suitable lighter employment, including the jobs of picker, packer and assembler/packer identified in the vocational evidence. It was submitted that the potential earnings in those jobs exceeded 60 per cent of Mr Rahim’s “without injury” earnings and that Mr Rahim’s economic loss claim must consequently fail.
254The most recent medical evidence from the occupational physicians, Dr Horsley and Dr Slesenger, is consistent. It is to the effect that Mr Rahim cannot return to his pre-injury employment with the defendant. The inability to return to pre-injury employment is, in my view, a “very considerable” loss of earning consequence for the purposes of s325(2)(c)(ii) of the Act. I consider Mr Rahim satisfies that part of the statutory provision.
255It remains to consider whether there are “suitable employment” options available to Mr Rahim other than his pre-injury occupation, and whether he has a lack of motivation to obtain alternative employment.
“Suitable employment”
256The defendant relied on a Vocational Assessment Report from Nabenet dated 21 December 2017 which identified a range of possible suitable employment options including customer service officer, warehouse supervisor, packer – light items; trade sales assistant and product examiner. It also relied on the Recovre Vocational Assessment Report dated 7 January 2019 which also identified suitable employment options of picker packer, process worker or forklift driver. Of the roles referred to as “suitable employment”, the defendant submitted Mr Rahim had capacity to perform the jobs of packer, picker and assembler/packer.
257The defendant relied on the opinions of Dr Doig and Dr Slesenger. Dr Doig’s opinion was that Mr Rahim was fit for suitable employment such as a picker packer or process worker. Dr Slesenger considered that Mr Rahim had some capacity for roles as a packer (Springvale), a picker (Dandenong South) and an assembler/packer (Bayswater) (subject in each case to rotation through workstations to avoid prolonged static postures). Dr Horsley, on the other hand, considered that Mr Rahim had no capacity for suitable employment having regard overall to the range of relevant matters to be considered pursuant to s3 of the Act.
258Mr Rahim was cross-examined about his capacity for employment. In relation to the jobs identified by Dr Slesenger, Mr Rahim’s evidence was that:
“I’m happy to do these jobs, as long as it follows the doctor’s recommend[ation]s and there is some sort of guarantee that this is not going to worsen my injury because I don’t want to take that risk of making my injury worse and making my pain a lot worse.”
259He was asked whether he plans to look for work in the future to which he responded, “[i]f my current condition allows it, then I have no fear of returning to work”.
260In re-examination, Mr Rahim was asked about some of the requirements for the pick packer job in Springvale including the requirement that Mr Rahim do a 12-hour shift for three consecutive days. Mr Rahim’s evidence was:
“I don’t think I would be able to complete the first 12-hour shift. … based on the past experience of trying to return to light duties and trying my best – and the activities that I’ve done in the past, I haven’t been able to cover the 12 hours, or not even close to that, so just based on that because of the pain, I don’t think I’d be able to.”
261He was next asked about his ability to rotate through sitting and standing roles at a conveyor belt and his ability to bend to pick up fallen items. Consistent with his evidence in relation to his ability to bend whilst fishing, Mr Rahim said that:
“Physically, if I take all the medications and it[’]s taken its full effect, physically I can do that, but that night, it’s going to cause me a lot of pain and it’s going to disturb my sleep.”
262The following day, he said it was most likely that he would “either fall asleep at work or fall over or something”.
263Finally, in relation to sitting for 30 minutes other than when walking every 10 minutes to collect a stack of boxes weighing 5 kilograms, Mr Rahim said that:
“It’s going to cause a lot of discomfort sitting down for that period, and – you know, I just don’t want to do something wrong during work that may cause me to injure myself even worse, or hurt myself even worse.”
264He continued:
“I can say that I may be able to for five or ten minutes, but anything further than that will just cause even more pain to my back.”
265In relation to the second role of a picker, which would require Mr Rahim to walk constantly during his shift and pick items from shelves ranging in height from 35 centimetres to up to 170 centimetres high, Mr Rahim’s evidence was:
“I can walk half an hour, maybe maximum an hour, but even after walking, that night I’m going to have a lot of pain.”
266If he was required to repetitively and constantly pick from the shelves in that fashion he said:
“doing this repetitively, not only physically, will be difficult for me, but also mentally because you’re going to need to know details of the items and record them and list them, and that all would be very difficult for me. Even when I was better, in a better condition than I am now, I was doing work that was similar to this and even then that was a lot of pressure.”
267In relation to repetitive work stacking boxes onto a pallet starting at floor level up to a height of 1.5 metres, Mr Rahim said that would:
“put a lot of pressure and a lot of pain on my lower back, which I would think that it would probably injure it even more.”
268The assembler role involved constant dynamic standing for intervals in the vicinity of two hours when performing packing duties, as well as bending when packing product boxes and sitting when performing assembly tasks. Basic spoken English was required.
269Having considered the specific requirements of each of the jobs the defendant proposed could be performed by Mr Rahim, as well as the range of factors set out in s3 of the Act, in my view, the suggested roles are not suitable for Mr Rahim.
270Mr Rahim is a refugee from Afghanistan. He attended medical consultations with, and gave evidence via, an interpreter. His own evidence demonstrated that he experienced a level of difficulty understanding details associated with items and tasks because of his lack of English language proficiency.
271Even if he was able to understand all aspects of the proposed roles, he has a background only in manual labouring. It is not suggested that he is suitable for office-based employment, but the roles proposed by the defendant are nevertheless not suitable given Mr Rahim’s skillset.
272Both Dr Brasier and Dr Horsley, occupational physicians, considered the full range of factors impacting upon whether each role constituted “suitable employment” and determined the roles to be unsuitable. Conversely, Dr Slesenger, also an occupational physician, considered that Mr Rahim had some residual employment capacity. Dr Slesenger’s view as to the suitability of various roles, however, failed to take account of the full range of factors relevant to an assessment of suitability of employment. These included the amount of time Mr Rahim had been out of the workforce, his literacy issues, his lack of transferable skills, his medications and their effect, particularly with respect to limits to his attention span and concentration, the severity of his underlying pain and the associated functional limitations this produced with respect to his ability to walk, sit, drive, lift, squat, lift, push and pull.
273In my view Dr Horsley and Dr Brasier’s evidence is to be preferred to that of Dr Slesenger. Not only will Mr Rahim be unable to perform the job tasks referred to in the roles suggested by Dr Slesenger – the picker job in Dandenong South, for example, requires three consecutive 12-hour shifts with repetitive bending, prolonged standing or sitting and constant walking, each of which Mr Rahim is unlikely to be able to manage – but having regard to the totality of the evidence and the range of impairments and what they mean in a practical sense for Mr Rahim in terms of employment in the real world, I am satisfied that Mr Rahim has no capacity to earn in “suitable employment” and hence no “with injury” earning capacity.
Motivation
274The defendant also submitted that Mr Rahim lacks motivation to look for work while in receipt of WorkCover benefits and while this litigation is on foot and that his failure to seek and obtain work is not indicative of a lack of physical capacity to undertake suitable employment. It is apparent that before he was injured, Mr Rahim was a hardworking employee. He is a refugee who worked two jobs. He was ambitious. He attempted a return to work but through no fault of his own, that was unsuccessful. Any suggestion that there has been no reasonable effort to engage in retraining and rehabilitation, in my view can be disregarded. Mr Rahim has been certified by his general practitioner as unfit and there is no evidence of Mr Rahim having ever been referred to any rehabilitation service for the purposes of identifying suitable employment. In each of these circumstances, I am not prepared to make a finding that Mr Rahim lacked motivation.
275Accordingly, given that I am satisfied that Mr Rahim has no “with injury” earning capacity, I am satisfied that he has established the requisite 40 per cent loss for the purposes of the statutory formula.
Pain and suffering consequences – “serious injury”
276It is not strictly necessary for me to go further and consider whether Mr Rahim’s pain and suffering consequences are also “serious”. For completeness though, in my view this aspect of the application is also made out. I have already dealt in detail with the relevant medical evidence. Before the injury with the defendant, although Mr Rahim had some minor back pain, he was able to engage in full and unrestricted manual work. For practical purposes any symptoms he had did not stop him functioning.
277Mr Rahim experienced a physical injury with the onset of pain on 16 May 2016. His treating doctors accepted that there was an injury and tracked Mr Rahim’s clinical progress over many years. Those doctors expressed no reservations about his veracity or the extent of his symptoms. Further, the opinions of Mr Rahim’s treating doctors and experts have been corroborated by the chronology of onset, the radiological scanning and Mr Rahim’s clinical progress.
278The physical injury creates substantial organic pain and restriction which is ongoing and fluctuating. Mr Rahim is required to take prescription pain relief medication including 10mg/5mg of Targin (twice a day), 150mg of Lyrica (twice a day) and 15mg of Mobic (once a day). The medication makes his pain less severe, but he says the pain never goes away. He also now takes 30mg of Avanza, once a day, to help his mood, and Panadol Osteo, two tablets three times daily, for nociceptive pain relief.
279Despite an initial attempt to return to work, he has been unable to return to his pre‑injury employment, or to similar manual work. He experiences fear and anxiety about the prospect of further pain. He has required considerable ongoing conservative treatment and specialist referral, with the use of painkilling medication and some physical therapy including radio frequency denervation and neuromodulation.
280I accept that he is restricted for day-to-day activity. He has trouble getting dressed. Putting on pants increases his pain. He is unable to put on his shoes due to pain. He relies on his wife to assist him. He is unable to assist around the home to the extent he once did. He can only do light tasks like washing dishes and although he has started to do a little vacuuming on the advice of his physiotherapist, it increases his back pain.
281His sleep is impacted.
282He cannot drive for long periods due to pain.
283His children are young and he is unable to lift them or play with them because of back pain. He is prevented from playing sport with his daughters.
284His social life has been significantly impacted. He previously enjoyed going out to dinner with friends, but he rarely does this now because it is too uncomfortable to sit in restaurant chairs, which make his back pain worse. He is unable to play any sport and can no longer play cricket and soccer with friends at the park.
285Mr Rahim’s injury has also significantly impacted his physical relationship with his wife.
286Mr Rahim is still a relatively young man, and when all the evidence is taken in combination, in my view, that produces a “very considerable” pain and suffering consequence.
Conclusion
287I will grant leave to Mr Rahim to commence a proceeding for both pain and suffering and economic loss damages.
288I will hear argument with respect to costs.
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