Rahimi v Victorian WorkCover Authority
[2016] VCC 986
•14 July 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Suitable for publication |
| SERIOUS INJURY LIST |
Case No. CI-14-04740
| MOHAMMAD ZAFAR RAHIMI | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
JUDGE: | HIS HONOUR JUDGE SMITH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 and 5 July 2016 | |
DATE OF JUDGMENT: | 14 July 2016 | |
CASE MAY BE CITED AS: | Rahimi v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 986 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to right shoulder and neck – pain and suffering and loss of earning capacity consequences of injury – whether injuries may be aggregated
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Lu v Mediterranean Shoes Pty Ltd (2000) 1 VR 511
Judgment: Leave granted to plaintiff pursuant to s134AB(16)(b) to commence a proceeding claiming damages in respect of pain and suffering and loss of earning capacity.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C Harrison QC with Mr N Horner | Maurice Blackburn Lawyers |
| For the Defendant | Mr N Griffin | Russell Kennedy Lawyers |
HIS HONOUR:
1 Mohammad Rahimi alleges that he suffered injury to his right shoulder and neck in the course of his employment with Farmer’s Market Group (Vic) Pty Ltd (“FMG”) between late 2006 and March 2010. He seeks the leave of this Court to issue a proceeding to recover damages for pain and suffering and loss of earning capacity in respect of that injury.
2 Mr Rahimi’s right to do so is governed by the provisions of s134AB of the Accident Compensation Act 1985 (“the Act”). In order to obtain such leave, the Court must be satisfied, on the balance of probabilities, that he has suffered a “serious injury”.[1]
[1]Section 134AB(19)(a) of the Act
3 The term “serious injury” is defined in s134AB(37) of the Act insofar as is relevant to this application, as:
“(a) permanent serious impairment or loss of a body function.”
4 It can be seen that the definition does not refer to any physiological injury as such but to impairment or loss of a body function.
5 The body function relied upon in this application is that of Mr Rahimi’s right upper limb.
6 The term “permanent” is to be interpreted as meaning “likely to persist in the foreseeable future”.[2]
[2]Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraphs [18] to [19]
7 With regard to pain and suffering damages, the impairment or loss of a body function shall not be held to be serious for the purposes of this application unless the pain and suffering consequences are, when judged by comparison with other cases in the range of possible impairments or losses, fairly described as being more than “significant” or “marked” and as being “at least very considerable”.[3]
[3]Section 134AB(38)(c) of the Act
8 With regard to loss of earning capacity damages, leave is not to be granted by the Court unless Mr Rahimi establishes that, in addition to the requirements of s134AB(38)(c), he has suffered, at the date of the hearing of the application, a loss of earning capacity of 40 per cent or more when calculated in accordance with s134AB(38)(e), (f) and (g).
9 The defendant denies that:
(a)The pain and suffering consequences of Mr Rahimi’s injury can be fairly described as being more than significant or marked and as being at least very considerable;
(b)Mr Rahimi has suffered a loss of earning capacity of 40 per cent or more.
Background
10 Mr Rahimi is aged fifty-five. He was born and brought up in Kabul in Afghanistan. He is right-hand dominant.
11 Mr Rahimi came to Australia in April 2000. He obtained permanent residence here in 2005 and became an Australian citizen in 2008.
12 Mr Rahimi is married and has eight children, aged between twenty-six and two. His family joined him in Australia in 2007.
13 Initially he found it difficult to obtain work here. His English was poor. He eventually obtained work at a meat factory, where he worked for about two years packing meat. That employment ceased when the company closed and he was then out of work for some time.
14 In late 2006, he commenced with FMG. He worked as a produce labourer at its retail outlet at the Dandenong Market. Although there were some inconsistencies in the hours of work he described to examining doctors, he swore in his affidavit that he worked full time, 38 hours per week. This was not challenged in cross-examination.
15 Each day his duties involved cutting up between 900 and 1,400 cabbages and cauliflowers to prepare them for sale. He was required to slash the leaves and stems of those plants and stack them for display. He was also required to lift boxes of carrots weighing 20 kilograms and boxes of potatoes weighing 50 kilograms. The cutting job was described by him as very repetitive and his evidence was that the knives that were provided to him were not regularly sharpened. As a result, they were often blunt and made the task of cutting the vegetables more difficult.
16 Mr Rahimi had not been in that employment long before he started to get pain in his right arm.
17 In November 2006, he saw a Dr White in Dandenong and told him that his shoulder was sore from cutting cabbages.
18 Mr Rahimi continued working.
19 In May 2008, he saw the doctor, again, and was prescribed Mobic, an anti-inflammatory medication.
20 Mr Rahimi returned to work but continued to experience pain in his right arm and shoulder. The doctor told him to rest and take Nurofen. The pain did not improve.
21 Mr Rahimi then saw a different doctor, Dr Musaddiq, in Narre Warren, who gave him an injection into his right shoulder (which I assume was of a steroid), which did not help.
22 In March 2010, he was told by FMG that there was no work for him and he finished work with it around that time. Since then, FMG has been wound up and no longer trades.
23 In July 2010, he saw his normal general practitioner, Dr Mirranay in Berwick, about his right shoulder and arm pain. Dr Mirranay organised an ultrasound of the shoulder and advised him it showed some problems. He underwent an ultrasound-guided cortisone injection into the right shoulder on 16 August 2010. It did not help.
24 Mr Rahimi lodged a WorkCover Claim in August 2010. In it, he described his injury/condition as being:
“… severe pain and weakness with my shoulder, right arm and right elbow.”[4]
[4]Defendant’s Court Book (“DCB”) 1
25 On the Claim Form he stated:
“Regular hard work of cutting at least 500 of cabbages a day for around five years caused me the problem. The injury first developed in 2009 and gradually increased and now I am suffering too much pain.”[5]
[5]DCB 1
26 He was referred to an orthopaedic surgeon, Mr Trung Nguyen, in September 2010. He recommended surgery to his right shoulder. This was performed in October 2010 – a right shoulder arthroscopic acromioplasty plus resection of the subacromial bursa and resection of the AC joint. The surgery was performed under suprascapular nerve block and general anaesthetic.
27 Mr Rahimi’s symptoms improved for a short time but later recurred. He underwent physiotherapy for a time, but continued to experience constant pain in his right arm, with reduced feeling and weakness in the hand and arm. He noted pain on the right side of his neck and on his right arm was significantly increased.
28 In March 2011, Dr Mirranay arranged an MRI scan of his neck, which showed a prolapse at the C5-6 level, severe right foraminal stenosis and compression of the exiting right C6 nerve root.
29 In July 2011, Mr Rahimi was referred to Mr Craig Timms, a neurosurgeon. Mr Timms recommended that he undergo surgery to his neck in the form of an anterior cervical discectomy and fusion, with partial vertebrectomy at the C5-6 level. Mr Rahimi was reluctant to proceed with such surgery. He told Mr Timms that a relative had recently undergone elective surgery and passed away as a consequence. This had put him off any type of surgery, which Mr Timms considered to be understandable. Mr Rahimi has remained unwilling to undergo further surgery. He is conscious that his earlier surgical experience did not assist his pain.
30 Mr Rahimi has continued to see Mr Timms from time to time and sees his main general practitioner, Dr Mirranay, regularly and Dr Musaddiq, who practises closer to his home, on occasions.
31 In September 2012, he was referred by Dr Mirranay to Mr Eden Riley (I suspect this is a misprint for “Eden Raleigh”, a well-known shoulder specialist) who organised an MRI scan of his right shoulder which showed “persistent rotator cuff pathology, and partial thickness labral deep tear of the right shoulder”.[6]
[6]Plaintiff’s Court Book (“PCB”) 31B
32 No report was served from Mr “Riley”. However, the referral to him and the results of the MRI scan of the shoulder are described in the report of Dr Mirranay dated 29 June 2016 which was tendered without objection.
33 Mr Rahimi is currently prescribed Panadeine Forte and, on occasions, Mersyndol Forte. I accept that these are powerful prescription analgesics. In addition, he regularly takes Panadol tablets, which he purchases without prescription. He has been diagnosed with depression and anxiety and has been prescribed the antidepressant, Zoloft, and, in more recent times, Pristiq.
34 Mr Rahimi has been referred to the Caulfield Pain Management Clinic, where he saw Dr Peter Janovic, as well as a physiotherapist and psychologist.
35 Since September 2015, he has been in receipt of a Disability Support Pension.
36 He has not worked since March 2010.
Diagnosis of injury
37 It was not in dispute that Mr Rahimi had suffered injuries to his right shoulder and neck. What is in dispute is the origin of those injuries and the extent of any consequences of them.
Shoulder
38 The operating surgeon, Mr Nguyen, considered that Mr Rahimi had suffered right shoulder impingement and subacromial bursitis. At surgery, he found osteoarthritis in the AC joint. He considered that Mr Rahimi’s work at the Dandenong Market cutting vegetables had caused, or significantly contributed, to that shoulder condition. He considered that the injury was caused by cutting cabbages at work repetitively.[7]
[7]PCB 37
39 Dr Mirranay made a diagnosis of a right-sided rotator cuff injury with impingement syndrome.[8] He appears to have accepted the diagnosis of Mr “Riley” that Mr Rahimi had persistent rotator cuff pathology and had a partial tear of the labrum which would make his shoulder worse with any lifting.[9]
[8]PCB 19 and 25
[9]PCB 31B
40 Mr Thomas Kossmann, orthopaedic surgeon, saw Mr Rahimi in February 2016 at the request of his solicitors. Mr Kossmann’s diagnosis was that he had pain and movement restriction of the right shoulder presenting as a frozen shoulder following surgery. He considered that injury had been suffered in the course of his employment.[10]
[10]PCB 62-3
41 The defendant arranged for Mr Rahimi to be examined by Mr Troy (general surgeon), Mr McArthur (orthopaedic surgeon), and three occupational physicians – Dr Wilson, Dr Fish and Dr Baynes.
42 Mr Troy’s report is dated 16 September 2010 and pre-dates Mr Rahimi’s shoulder surgery and is of little assistance to me.
43 In July 2011, Mr McArthur considered Mr Rahimi’s clinical history was consistent with a supraspinatus tendonitis, noting he had not regained full movement of the shoulder post-surgery. He considered there might be a relationship between that condition and Mr Rahimi’s employment with FMG “albeit tenuous”.[11] In the same report he stated that Mr Rahimi’s tendonitis and impingement syndrome may have developed after repetitive use of his right upper limb in cutting cabbages and cauliflowers at work.[12] He appeared to have no knowledge of the results of the MRI scan of the shoulder arranged by Mr “Riley”.
[11]DCB 20
[12]DCB 21
44 In September 2012, Dr Wilson considered that Mr Rahimi had diminished strength in his right upper extremity and did not have the capacity to perform the demands of his previous job.[13] He described the shoulder diagnosis as being “rotator cuff degeneration”.[14] He considered that Mr Rahimi’s employment had contributed to that condition.[15]
[13]DCB 34
[14]DCB 37
[15]DCB 33
45 In December 2011, Dr Fish was not convinced that Mr Rahimi had any significant rotator cuff injury prior to the 2010 surgery. Nevertheless, he concluded that he was suffering from the residual effects of right shoulder pain following surgery.[16] I note this was prior to the later MRI scan of his shoulder.
[16]DCB 43
46 In April 2016, Dr Baynes was of the view that work was a contributing factor to the aggravation of a pre-existing right shoulder condition given the repetitive use of a knife in the right hand, and that his symptoms were still associated with that work-related aggravation.
47 Taking all of the evidence into account, I am satisfied, on the balance of probabilities, that Mr Rahimi did suffer an injury to his right shoulder in the course of his employment with FMG, most likely consisting of a partial thickness tear of the labrum and evidenced by persistent rotator cuff pathology.
Neck
48 The treating orthopaedic surgeon, Mr Timms, has seen Mr Rahimi on a number of occasions. He considered that the MRI scans of Mr Rahimi’s neck showed neural compression of the C6 nerve root from a C5-6 disc protrusion, and retrolisthesis at that level. He considered that the neck findings were most likely the cause of his symptoms in his right arm. He considered that such injury had occurred in the course of his employment.[17]
[17]PCB 43, 47 and 51
49 Dr Janovic, pain clinician, saw Mr Rahimi in May 2015. He considered that Mr Rahimi was experiencing severe pain secondary to a nerve root prolapse and also with associated moderately severe anxiety and depression, with an associated Panic Disorder. He did not express a view regarding causation.
50 In February 2016, Mr Kossmann found severe right foraminal stenosis at the C5-6 level, with compression of the exiting right C6 nerve root. He was not asked to give his opinion as to the cause of that condition.
51 Mr David Brownbill, neurosurgeon, examined Mr Rahimi in March 2016. It was his view that, on probability, Mr Rahimi had sustained, in the course of his employment, aggravation of pre-existing asymptomatic cervical spine degenerative changes at C5-6, with resulting onset of neck pain and nerve root irritation causing right arm pain.[18] Mr Brownbill commented that it was a common clinical experience that injuries to a shoulder and neck may occur at the same time, with the initial diagnosis being difficult to establish precisely.
[18]PCB 72
52 Mr Troy’s report pre-dates the cervical MRI scan findings of March 2011 and June 2012 and I do not give weight to it as regards Mr Rahimi’s neck injury.
53 In July 2011, Mr McArthur considered that the cervical spondylosis at the C5-6 level was longstanding. He accepted that there might be a relationship between the shoulder injury and his work with FMG, but stated that “the claimed neck pain, referred to his right shoulder, has no relationship with his former employment”.[19] I am unsure what the doctor meant by this. I assume he means that there is claimed neck condition resulting in referred pain to the right shoulder. Mr McArthur saw Mr Rahimi on only the one occasion in July 2011. He was not asked to report on the second MRI scan of June 2012.
[19]DCB 20
54 In September 2012, Dr Wilson considered there was evidence of degenerative change at the C5-6 level of the cervical spine, but that this had not been caused by the work activity involving the cutting of vegetables. At the time, he had been provided with Mr McArthur’s report of 25 July 2011, but no other relevant medical opinions. Nevertheless, he thought it was possible that he had a brachialgia or borderline radiculopathy emerging from the disc degeneration at C5-6. He thought that employment had contributed to the rotator cuff degeneration, but not to the cervical condition. In his report, he claimed to have outlined his reasons for reaching this conclusion, although I am unable to identify any such reasons in the report.
55 In December 2011, Dr Fish was unable to find any evidence of wasting of musculature, which is consistent with the findings of Mr Nguyen in 2010 but contrary to the findings of Dr Janovic in May 2015, when he noted “significant local muscle wasting around the shoulder and upper arm”.[20] Dr Fish accepted that the MRI findings and Mr Rahimi’s symptoms may well be due to the C6 nerve root compression although he considered there was a high degree of embellishment and abnormal pain behaviour. He concluded that Mr Rahimi was suffering from aggravation of cervical spondylosis with referred symptoms but without clinical evidence of radiculopathy.[21] He did not express an opinion as to the relationship of that aggravation and Mr Rahimi’s employment.
[20]PCB 53 and 55
[21]DCB 47 and 48
56 In April 2016, Dr Baynes, occupational physician, considered that there was evidence of significant pre-existing degenerative change in the neck, which was constitutional in nature. He did not believe that his work contributed to that condition to any significant degree. If there had been a work-related aggravation, he considered it had ceased.
57 It can be seen that there are contrary views expressed by some of the doctors concerning the link between Mr Rahimi’s neck injury and his employment. It is not uncommon for medical practitioners to express differing views concerning the nature of an injury or its cause.
58 Here, I note that, before commencing work with FMG, Mr Rahimi had no symptoms of pain in his neck. Within a reasonably short time after commencing he did experience pain in his right upper limb. Taking all of the evidence into account, I consider it likely that, whilst there may have been some pre-existing degeneration at the C5-6 level of his neck, it is likely that that condition was aggravated by his employment duties and was a cause of his right upper limb pain.
59 I note that the definition of “serious injury” in the Act refers to impairment or loss of a body function rather than any particular physiological injury. In this case, the claim is based upon impairment or loss of function of the right upper limb which I regard as incorporating the arm and shoulder. I accept that the function of his right upper limb has been impaired. I am unable to be certain as to the degree to which that impairment has been contributed to by the respective shoulder and neck conditions. I am however satisfied that both of the conditions are likely to be contributing to the impairment of the function of Mr Rahimi’s right upper limb.
60 Looking at the medical evidence as a whole, I am satisfied, on the balance of probabilities, that Mr Rahimi has suffered an impairment of his right upper limb as a consequence of his employment with FMG. I consider it likely that the impairment is primarily caused by the shoulder injury, although the neck injury is also likely to be contributing.
61 The claim is not based upon any particular incident or traumatic event but upon the whole of the course of his employment from 2006 to 2010. I am satisfied that both the shoulder and the neck conditions arose out of and in the course of that employment due to the general nature of his duties.
Consequences of injury
62 Generally I am not permitted to aggregate the consequences of two or more separate injuries in determining whether a serious injury has been suffered. Here, however, I accept the submissions on behalf of Mr Rahimi that his shoulder and neck conditions are not separate injuries in the sense described in Lu v Mediterranean Stores Pty Ltd & Ors.[22] Assuming they are two discreet conditions, they were suffered:
[22](2000) 1 VR 511
· At the same relevant time (that is, over the course of his employment);
· Whilst performing the same duties;
· Whilst employed by the same employer; and
· Affecting the same body function – that is the function of the right upper limb.
63 In Humphries & Anor v Poljak[23], Crockett and Southwell JJ stated that body function must be identified and that that function may be impaired or lost by reason of two or more injuries acting together to cause such impairment or loss.
[23][1992] 2 VR 129 at 134, 137 and 138
64 Accordingly, I consider I can take into account the consequences to the function of Mr Rahimi’s right upper limb of both conditions.[24]
[24]See Lu at paragraph [3] per Buchanan JA and at paragraph [29] per Chernov JA
65 Counsel for the defendant submitted that this application involved issues of credit concerning both Mr Rahimi’s affidavit material and the various histories given by him to examining doctors.
66 Three DVD films were tendered by the defendant depicting Mr Rahimi for relatively brief periods on 6 dates – 2 in mid-2014, 2 in October 2015, and 2 in June 2016. Counsel for the defendant submitted that the films showed that Mr Rahimi was capable of much greater range of movement in his neck than he had conceded to examining doctors or when asked to demonstrate his range of movement in the witness box.
67 The films did not show Mr Rahimi performing any strenuous activities or using his right arm or neck to any degree. He was shown walking short distances of up to 15 to 20 metres in a relaxed and normal manner; entering and alighting from motor vehicles without apparent difficulty; driving motor vehicles over short distances; and bending to remove papers from the interior of a car and from his mailbox.
68 I accept that on two occasions, he was shown reversing a vehicle from a car park or driveway and rotating his head left and right in order to do so safely. It appeared to me that he was able to turn his head briefly on those two occasions to a degree which was further than that which he demonstrated he was capable of in the witness box on the first day of the hearing.
69 I am conscious that the films tendered by the defendant are films of short duration on a limited number of occasions. They are essentially no more than snapshots of him on those few occasions. The defendant admitted that it had had Mr Rahimi under surveillance for a total of 45 hours in all. The films shown in Court were of approximately 30 minutes duration in total. Having carefully perused the films again, I am not satisfied that they detract in any significant way from Mr Rahimi’s evidence or his case as a whole. The fact is, they depict him doing very little. The most that can be said of them is that, on two brief occasions, he was able to turn his head a little further than what he demonstrated he was capable of in Court on the first day of the hearing.
70 It does not strike me as at all unusual that symptoms of an injury such as those complained of by Mr Rahimi would fluctuate from day to day or even during a particular day. I accept his evidence that his symptoms are affected by his taking of medication and the quantity of it.
71 Submissions were also made concerning the nature of the histories given to the doctors who examined him. It was submitted that the range of movement that he demonstrated to some examining doctors was severely restricted and this was not depicted in the films. Further, it was submitted that a number of doctors had referred to Mr Rahimi as demonstrating an “illness behaviour” or similar. I interpret this as the doctors’ opinion that he was exaggerating his symptoms to them.
72 I note that none of the films appear to have been shown to medical practitioners engaged by the defendant. If it were to be seriously submitted that the films depicted Mr Rahimi moving in a manner significantly different to occasions when he had been examined, I assume those practitioners could have expressed a view concerning this but were not asked to do so.
73 Although the word was not used, I interpret counsel’s submissions as being that Mr Rahimi was largely malingering, in that he was capable of far more than he was willing to admit.
74 I do not accept this. Mr Rahimi has consistently complained of right upper limb pain and weakness dating back to his employment with FMG. He has been prepared to submit to invasive procedures involving injections to his shoulder and to his cervical spine and significant shoulder surgery. I accept that his symptoms to his right upper limb have been consistent although, naturally, would have fluctuated over the period concerned. I accept that he is a stoic type of person. His symptoms were such that he sought medical attention for his painful upper limb in 2006 and 2008 but continued working until 2010.
75 Essentially, I consider Mr Rahimi to be a reliable witness, although I do accept that from time to time he may have exaggerated his symptoms. I am conscious that he is a man of little education and little experience of living in this country. He would have little understanding of our legal system or how the compensation system operates here. It is often the case that people in such circumstances feel the need to exaggerate or emphasise their symptoms in an effort to make their point to an examining doctor.
76 Taking all of the evidence into account, I accept that the current consequences of his injury are:
(a)He continues to suffer from consistent pain in his right upper limb, extending from the base of his neck to his hand and fingers;
(b)He has restricted movement of his right arm and shoulder;
(c)He has a reduced right hand grip strength and general weakness in his dominant right arm;
(d)His pain requires him to consume large quantities of powerful prescription analgesia;
(e)His sleep is affected to the extent that he gets two to three hours of sleep before being woken by pain and requires Valium to assist with sleep;
(f)He is only able to drive a car short distances because of right limb and neck pain;
(g)He is limited in the activities he can perform with his children and in particular, picking up his younger children and playing in the park with them;
(h)Whereas he was previously active and played soccer and volleyball with his children, he is no longer able to do so;
(i)He is no longer able to play a musical instrument;
(j)He is no longer able to help his wife out around the house and he is aware that this has put more pressure on her;
(k)He is restricted in the time that he can drive, partly because of his symptoms of pain but also for safety reasons given the multiple medications he consumes;
(l)His capacity to work has, on any view, been reduced.
77 Taking all of the evidence into account, I am satisfied that the pain and suffering consequences of Mr Rahimi’s injury are, when judged by comparison with other cases in the range of possible impairments or losses of a body function, fairly described as being more than significant or marked, and as being at least very considerable.
Loss of earning capacity
78 A significant dispute between the parties appeared to relate to Mr Rahimi’s current capacity for work and as to whether he could establish that he has suffered a 40 per cent loss of earning capacity as required by s134AB(38)(e) of the Act.
79 The defendant tendered five reports from an entity named Nabenet, which appears to be part of a company, Innovative Physiotherapist Services Pty Ltd.[25] On its letterhead, it describes itself as involved in “integrated workplace health services”. The five reports were each prepared by one of three “rehabilitation consultants” and dated between September 2011 and August 2012. The qualifications of those persons is unknown.
[25]DCB 62
80 I note that in the first of those reports, dated 29 September 2011, the author, one Oliver Black, indicates that his understanding is that Mr Rahimi had suffered a right shoulder compression injury. He had not been provided with details of the MRI scan performed in March 2011 indicating that Mr Rahimi had, in addition, suffered a cervical disc prolapse. Further, he does not appear to have been provided with Mr Timms’ letters dated 26 July 2011 or 13 August 2011. The first of these was a letter to the claims agent seeking approval for Mr Timms to undergo the surgical procedure – anterior cervical discectomy and fusion at the C5-6 level. Put another way, the rehabilitation consultant was being asked to advise as to suitable employment options for a man without being told that that the man’s treating surgeon had, shortly before, advised that he should undergo spinal fusion surgery. In none of the five Nabenet reports is there an acknowledgement that Mr Rahimi has suffered any injury to his neck at all. Nor in any of the reports is there reference to the views or opinions of Mr Rahimi’s treating orthopaedic surgeon or general practitioner. Instead, Nabenet had been provided with reports of Mr Macarthur and Mr Troy, who had each seen him on one occasion and, in the case of Mr Troy, a year earlier and before the shoulder surgery.
81 It is perhaps not surprising in those circumstances that the rehabilitation consultants at Nabenet came to a different conclusion to that of Ms Katrine Green, a psychologist and occupational rehabilitation consultant with a background in human resources, who had been provided with reports of Mr Rahimi’s treating orthopaedic surgeon and general practitioner, both of whom had treated him over a number of years and examined him on numerous occasions. She was not provided with reports from doctors engaged by the defendant or its claims agent.
82 Neither Ms Green nor the Nabenet personnel have medical qualifications. They each obviously relied on the medical opinions with which they were provided.
83 I consider that the opinions as to work restrictions provided by treating doctors, based on multiple examinations and treatment, carry more weight than opinions of other practitioners based on merely one or two such examinations.
84 In any event, the positions considered suitable for Mr Rahimi by Nabenet were those of:
· Packer
· Medium Rigid Truck Driver
· Product Assembler (light); and
· Security Guard.
85 In his closing submissions, counsel for the defendant abandoned the suggestion that the occupation of a security guard was suitable for Mr Rahimi.
86 It was clear from Mr Black’s first report that he was uncertain as to whether or not a suitable position in any of the remaining positions actually existed, given the conditions and restrictions nominated.[26]
[26]DCB 65, 66 and 67
87 Ms Green, in her report, addressed each of the proposed positions.[27]
[27]PCB 75
88 Ms Green analysed the employment duties of a fruit and vegetable packer, a farm worker, general labourer, factory process worker (which I assume is similar or identical to the position of a product assembler), hand packer, shelf filler, and delivery driver and concluded that none of these positions were suitable employment for Mr Rahimi. I am satisfied that her qualifications and experience (annexed to her report)[28] are such that she has knowledge of the particular duties that a person employed in those positions would be expected to perform. She took into account the opinions of his treating specialist and general practitioner concerning work restrictions which I consider she was entitled to do.
[28]PCB 89
89 On the basis of her descriptions of those duties, I accept her opinion that the positions proposed by Nabenet are not suitable employment for Mr Rahimi. He has little education. He has only ever worked in Australia as a manual labourer. He has little prospect for re-training for administrative or sedentary work.
90 I am satisfied that Mr Rahimi is currently unable to return to any employment for which he is suited by education or experience. This has been the case for some six years. I am satisfied this is likely to continue for the foreseeable future.
91 It is possible there might be some improvement should he undergo spinal fusion surgery proposed by Mr Timms. He is reluctant to undergo such surgery. Counsel for the defendant did not submit that his reluctance was not genuine or that it should be held against him in this application.
Conclusion
92 I am satisfied that Mr Rahimi has suffered a “serious injury” as defined in s134AB of the Act.
93 I am satisfied that Mr Rahimi has suffered a loss of earning capacity of 40 per cent or more, calculated in accordance with s134AB(38) of the Act.
94 Pursuant to s134AB(16)(b) of the Act, there is leave for Mr Rahimi to commence a proceeding for the recovery of pain and suffering damages, and loss of earnings damages, with regard to injuries suffered by him in the course of his employment with FMG between 2006 and 2010.
95 I shall hear the parties in respect of costs.
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