Salarinia v Victorian WorkCover Authority
[2023] VCC 261
•2 March 2023
IN THE COUNTY COURT OF VICTORIA
AT Melbourne
COMMON LAW DIVISION
Revised
Not Restricted
Suitable for PublicationSERIOUS INJURY LIST Case No. CI-22-02253
RAMIN SALARINIA Plaintiff v VICTORIAN WORKCOVER AUTHORITY Defendant ---
JUDGE:
HER HONOUR JUDGE ENGLISH
WHERE HELD:
Melbourne
DATE OF HEARING:
13 and 14 February 2023
DATE OF JUDGMENT:
2 March 2023
CASE MAY BE CITED AS:
Salarinia v Victorian Workcover Authority
MEDIUM NEUTRAL CITATION:
[2023] VCC 261
REASONS FOR JUDGMENT
---Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – sub-paragraphs (a) and (c) – pain and suffering and pecuniary loss – substantial organic basis – credit
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:State of New South Wales v Moss (2000) 54 NSWLR 536; Humphries and Anor v Poljak [1992] 2 VR 129; Meadows v Lichmore Pty Ltd [2013] VSCA 201
Judgment: Leave granted for pain and suffering under sub-paragraphs (a) and (c)
Leave refused for loss of earning capacity.
---
APPEARANCES:
Counsel Solicitors For the Plaintiff Mr J Fitzpatrick with
Mr D O’BrienMacquarie Injury Lawyers For the Defendant Mr C Miles Wisewould Mahony HER HONOUR:
Introduction
1Between 30 October 2017 and 14 November 2017, the plaintiff, Mr Ramin Salarinia, was working at a cheese factory, Floridia Cheese Pty Ltd. Whilst working there, he alleges he injured his back. On about 6 November 2017, he asked his supervisor if he could move jobs as the work was too heavy for him. On 14 November 2017, a manager told him, as milk was running low, he was not to come back unless contacted. He has not worked since 14 November 2017.
2This is a serious injury application pursuant to s335(1) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) by the plaintiff. He seeks leave of the Court to commence common law proceedings pursuant to sub-paragraphs (a) and (c) of the definition of “serious injury” in s325(1) of the Act for pain and suffering and economic loss for an injury to his back.
3The defendant submitted “everything” was in issue in this case: the defendant denied there was an injury at work. Secondly, the defendant denied there were serious consequences of any physical injury. Thirdly, the defendant denied the plaintiff has a severe psychiatric injury. As it was argued there is no substantial organic basis for the plaintiff’s injury under sub-paragraph (a), in those circumstances, the plaintiff bears the onus to disentangle the physical and psychological causes of his pain and suffering. The defendant submitted the plaintiff has not disentangled this to the extent required under sub-paragraph (a).
4The plaintiff claims he has a total incapacity for work. He claims he has a permanent loss of earning capacity of 40 per cent or more.[1] The defendant denied the plaintiff met the threshold and further argued his incapacity for work was not permanent.
[1] State of New South Wales v Moss (2000) 54 NSWLR 536 at paragraph [71]
Background
5The plaintiff is twenty-six years old. He was born and raised in Iran. He came to Australia in 2013 with his stepmother and two brothers. He learnt English and completed limited schooling. In 2014, when he turned eighteen, his stepmother asked him to leave home. In 2016, he obtained a work visa. He worked in a coffee shop and then at the Windsor Hotel performing housekeeping duties.
6On 30 October 2017, he commenced work with the defendant, on a casual basis, as a full-time operator/general hand at the cheese factory.
Evidence
7The plaintiff provided two affidavits dated 29 November 2021 and 6 February 2023, in support of his application. His partner, Madison Collinda, provided an affidavit in support dated 8 February 2023. Both the plaintiff and Ms Collinda were cross-examined at the serious injury application hearing.
Issue 1: Is there a compensable workplace injury?
8In his first affidavit dated 29 November 2021, the plaintiff details his duties at the defendant as follows:[2]
· manually lifting blocks of cheese from a tank of freezing water and moving them into another tank of brine
· manually lifting blocks of cheese onto a trolley
· pushing the trolley from production area to the cool room
· manually unpacking the cheese from the trolley into the cool room
· manually lifting the slabs of curd, cutting them and transferring them onto a conveyor belt
· manually lifting old cheese and transferring it into a bucket
· scrubbing and washing the production area.
[2] Plaintiff’s Court Book (“PCB”) 4-5
9The plaintiff stated that soon after he started working for the defendant, he noticed a pain in his back. After a week or so he asked his supervisor if he could be moved to a different role as the work was “too heavy”. He was told he would have to wait a month and see how he went.[3]
[3] PCB 5
10On 14 November 2017, a manager approached him and told him the company was running low on milk and cheese and not come to work unless he was contacted.
11In his affidavit, the plaintiff describes experiencing severe pain in his lower back which he thought would pass.
12It was not until 30 March 2018 that he went to see a doctor, Dr Salehi at the Sunshine City Medical Centre. Dr Salehi prescribed Mobic.
13There is no note in Dr Salehi’s clinical record that the plaintiff advised him his back pain was work related. His notes state:
“back pain since 1 months ago / not radiating
recent heavy physical activity/ pushing/ lifting/ at gym/ no recent trauma … .”’[4]
[4] PCB 186
14In cross-examination, he stated Dr Salehi had incorrectly recorded he had back pain for a month, and stated:
“When I saw him I explained for him I was doing the heavy work and the job I was doing was lifting and pushing. I was pushing the heavy stuff. I did not even mention trolley, I said heavy stuff.”[5]
[5] Transcript (“T”) 25
15He denied stating to the doctor that his recent heavy physical activity was “‘at the gym”. He denied stating he was going to the gym regularly doing weightlifting and other heavy activities.
16The plaintiff stated the doctor asked him:
“He asked me, ‘you look fit. Do you do any sport?’ I told him, ‘I’m a soccer player’ and he said: ‘Oh. Do you go to the gym?’ and I said ‘of course I go’. Maybe that’s why he did the report, I don’t know.”[6]
[6] T25
17On 2 April 2018, the plaintiff returned to the doctors and saw Dr Tahmasebi. The doctor noted “chronic low back pain” and “plays soccer”. The plaintiff stated he said to the doctor, “I’m going to soccer training but my back is sore. I can’t do it.”[7]
[7] T27
18The plaintiff was referred to a physiotherapist, Stephen Vong. On 3 April 2018, Mr Vong has recorded:
“22 YO M soccer player with LBP, starting 3/12 ago. Nil issues with pre-season. Changed job 3/12 more manual labour.//bending over and turning, heavy objects - onto trolley then to fridge. 3 hrs of lifting …”.[8]
(sic)
[8] PCB 271
19In cross-examination, the plaintiff stated he attended training in the pre-season once a week.[9] His evidence was he persisted with soccer training, even though he was experiencing pain.
[9] T29
20On 27 November 2018, the plaintiff returned to see Dr Salehi. He did so to ask him to correct the history he had recorded on 30 March 2018 which made no mention of the plaintiff’s work in the cheese factory. The plaintiff’s evidence was when he saw him on 30 March 2018, he mentioned he was doing lifting and pushing heavy stuff. He stated the doctor did not ask him about it, and he answered the doctor’s questions.
21The plaintiff denied telling Dr Salehi he needed a “good letter” to help him with his WorkCover case.[10]
[10] T36
22In her affidavit, the plaintiff’s partner, Ms Collinda, stated she attended the doctor’s appointment on 30 March 2018 with the plaintiff. Ms Collinda noted she “forced” him to go and see a doctor.[11]
[11] PCB 47
23She recalled the consultation was in English. She stated:
“He asked Ramin amongst other things if he worked? Ramin said he did – was his job physical? – he said yes. There was a discussion about lifting and pushing at work. He asked him did he go to the gym? Ramin said he did. A fair bit was said. At some stage the doctor looked at Ramin’s back. The doctor typed some notes. He suggested Ramin try sleeping on the floor for a while and gave him a prescription for painkillers, telling him to see how he went.”[12]
[12] PCB 27
24At the hearing, Ms Collinda was cross-examined, however she was not asked any questions about her attendance with the plaintiff to see Dr Salehi or her recollection regarding what was discussed.
25The plaintiff, who was a promising soccer player, exhibited to his second affidavit a text exchange between himself and Omer, assistant coach of Hume United Football Club, dated 30 March 2018. The plaintiff had been asked whether he was interested in joining the football club and attending training. On 30 March 2018, following his attendance at the doctors, the plaintiff sent the following text to Omer:
“Hey Omer how are you brother? Omer I just went to the doctor today about my back, they gave me the strongest Mobic capsule, it’s not my muscle it’s my disk from work about 3 months ago, anyway I will come tomoz to get the uniform and try to play, if I couldn’t I’ll tell the coach and seat on the bench, I need to fix it for the second match.”[13]
(sic)
[13] PCB 35
The Plaintiff’s credit
26A focus of the defendant’s case was the plaintiff’s credit. In the defendant’s opening, Counsel stated credit was “very much in issue”. The plaintiff’s credit was challenged about whether a workplace injury had occurred, as well as the basis of that injury and the consequences from that injury.
27The defendant’s case is there was no workplace injury. In this section, I will consider all the defendant’s submissions regarding the plaintiff’s credit, although I note they extend beyond the question of whether a workplace injury occurred. The defendant submitted, after embarking on the medico-legal process in about August 2018, the plaintiff went “lawyer shopping and doctor shopping”.[14] The defendant notes there was no report of a workplace injury to the defendant, and the plaintiff did not seek medical attention until 30 March 2018, and continued with soccer training until at least 20 April 2018. Further, there is no mention in the doctor’s note that the injury occurred at work. It was submitted, once the plaintiff brought his compensation claim that “he gave the cheese factory injury history to doctors”.[15] The plaintiff then later attempted to get the doctor to correct his record from the consultation, which the doctor refused to do. The doctor alleges in his notes, the plaintiff told him he needed a “good” letter for his WorkCover case, and the doctor would get $3,000.[16]
[14] T108
[15] T108
[16] PCB 187-188
28The defendant’s further example of “doctor shopping” is the report from Dr Singh, psychiatrist, who stated he was “unable to do any report for his WorkCover and the immigration”.[17] Dr Singh states he was unable to see the plaintiff in the near future and, amongst other advice, refers him to a psychiatrist who can do a report for the Court. The plaintiff’s evidence was that Dr Singh was unable to take on additional clients at that time.[18] The defendant also submitted Mr Vong, physiotherapist, was of the view the plaintiff was behaving in an injured or invalid manner because he stated his apprehension to movement “contributes to the chronicity of his low back pain”.[19]
[17] PCB 100
[18] PCB 7
[19] T109. Note: Mr Vong’s report was not tendered as an exhibit
29The defendant further submitted the medico-legal reports of Dr Awad and Dr Rowe were “tainted” because the surveillance footage showed him attending the doctors’ appointments using a crutch or a walking stick, with a limp, “and he’s behaving in an invalid way”.[20] Further, Dr Gutman’s opinion is no longer valid because when he saw the plaintiff, he had an antalgic gait and utilised a crutch. The defendant submitted that because the plaintiff now rarely uses a crutch (the plaintiff stated in his evidence this was on the advice of his physiotherapist not to become dependent on a crutch[21]) and hardly limps, that he has improved greatly. It was submitted the plaintiff attempted to “blame” his injection for ankle numbness in August 2018 when his injection was in fact in September 2019, “he will say whatever advances his case”.[22] In fact the plaintiff had two CT-guided injections, on or around August 2018 and 12 September 2019.[23]
[20] T109
[21] T54
[22] T118
[23] PCB 6-7, PCB 181 and T66
30The defendant also relied on the observations in the report by Dr Reza Sabetghadam, specialist occupational physician consultant, dated 22 April 2022, who assessed the plaintiff on 8 April 2022. Dr Sabetghadam stated the plaintiff exhibited “abnormal pain behaviour, grimacing, sighing, crying, limping and he was quite theatrical when taking his shoes, socks and trousers off …”.[24] Although the plaintiff had a stiff left leg, Dr Sabetghadam noted “multiple inconsistencies” such as when he had left knee bent whilst sitting on the examination table. He noted he had an “athletic physique” and had no muscle wasting.
[24] Defendant’s Court Book (“DCB”) 11
31Finally, with respect to the plaintiff’s credit, the defendant played two pieces of video surveillance dated 25 March 2022 and 13 December 2022. In both videos the plaintiff is seen arriving at doctors’ appointments using the assistance of a crutch to ambulate. The defendant also played a montage of film from Ms Collinda’s Instagram account. This comprised of compilation shots from various holiday locations such as Geelong and Brisbane. Further, there were two short videos of the plaintiff proposing to Ms Collinda at their local church. The plaintiff is pictured on one knee. It was submitted the Instagram and video material adds up to the fact “the plaintiff is quite simply grossly exaggerating his disability, or more correctly said, he’s lying”.[25]
[25] T115
32Despite the attack on his credit, I am satisfied the plaintiff suffered a compensable workplace injury for the following reasons.
33Firstly, I note the plaintiff’s second language is English. From my observations of him in the witness box, he struggled to respond to the questions asked of him and to express himself. That is a generous interpretation of his demeanour. He was often not forthcoming in his answers, he struggled to remember to answer verbally, he was irritable, second-guessing questions and quite inarticulate; however, I am reluctant to impugn his credit based on his demeanour.
34Secondly, although his affidavit stated he raised the difficulties he was having with the heavy nature of the work with his supervisor, he had no opportunity to report his injury as his employment abruptly ceased when he was advised not to come in to work as the factory ran low on milk.
35Thirdly, in his first affidavit, the plaintiff explained he initially did not seek medical treatment as he had no money, and no knowledge about WorkCover. Further, he thought the pain would subside and improve.[26] This explanation appears consistent with his poor English skills, limited education in Australia and lack of family supports.
[26] PCB 5
36Fourthly, despite the short compass of his employment period, the plaintiff’s description of his duties at the workplace is consistent with his description of the injury to his back. He was not cross-examined or challenged regarding that description or his duties. In his second affidavit, he refers to the back pain:
“I had back pain which was the result of my heavy repetitive physical job which involved lifting, bending, pushing heavy trolley, standing, cleaning in November 2017.
When the pain started, I thought I had bruised it or its muscle cramp. It was new to me. Anyway, after months pain was getting worse and I couldn’t let it go any more.”[27]
[27] PCB 23
37This is supported by the report of Dr Matthew Gutman, independent expert, dated 6 May 2022, who opines it possible that heavy lifting involved in manual labour, has contributed to the presence of a prolapsed disc which has precipitated the plaintiff’s sciatica.[28]
[28] PCB 182
38Mr Siu notes in his report dated 13 December 2022, it is conceivable that the injury to his back resulted in a disc prolapse between October and November 2017.[29] He states “indeed, he reported symptoms to the employer in November 2017, it was possible that he injured himself at that time. The statement from the manager at that time may be helpful.”[30]
[29] DCB 20
[30] DCB 20
39Dr Rowe, the specialist occupational physician, was satisfied the injury is directly related to his employment, particularly the heavy lifting, heavy pushing and pulling involved.[31]
[31] PCB 169
40Fifthly, the text the plaintiff sent to Omer, the assistant coach, the same day he saw Dr Salehi, namely 30 March 2018, refers to the workplace nature of his injury. This text message is strongly corroborative. It was exhibited to his affidavit dated 6 February 2023 and was not challenged. Further, the physiotherapy notes of his first session in April 2018 with Mr Vong refers to manual labour, bending and turning, lifting heavy objects.[32] Although the clinical record by Dr Salehi dated 30 March 2018 does not mention work, neither am I satisfied it states the injury occurred either at the gym or playing soccer.
[32] PCB 271
41Sixthly, the affidavit of the plaintiff’s partner, Ms Collinda, confirms she attended the doctor’s appointment on 30 March 2018 and that he told the doctor about his workplace duties.
42Finally, Ms Collinda was living with the plaintiff as a housemate when he was working at the cheese factory. She recalled him complaining of back pain after a few days of working there and prior to that, she had never seen him have any sign of back pain, he was fit and healthy. Neither this evidence nor evidence of her attending the doctor’s appointment with the plaintiff were raised in cross-examination. I note the defendant’s suggestion his injury could equally have been caused by his gym work or his soccer playing. I accept the evidence of the plaintiff, supported by evidence of his text to Omer, as well as the evidence of Ms Collinda, that he sustained his back injury whilst working at the cheese factory.
Issue 2 – Does the plaintiff have a “serious injury”?
43The onus of proof is on the plaintiff. In Humphries and Anor v Poljak,[33] the question whether an injury is a serious injury, considers when regard is had to the consequences, can the injury, when judged by comparison with other cases in the range of possible impairments and losses, be fairly described as at least “very considerable” and certainly more than “significant” or “marked”?
[33][1992] 2 VR 129 at 140
44Meadows v Lichmore Pty Ltd[34] is authority that to establish serious injury, the plaintiff must satisfy the court, on the balance of probabilities, that the organically-based pain and suffering consequences satisfy the statutory criterion of being “more than significant or marked and … at least very considerable”.
[34] [2013] VSCA 201 at paragraph [2]
Is there is a substantial organic basis for the pain and suffering consequences?
(a) physical injury
Medical treatment
45In his first affidavit, the plaintiff details initially using Voltaren and taking prescribed Mobic for his back pain.[35] He then saw Mr Vong, physiotherapist.
[35] PCB 5
46On 20 August 2018, he had a CT scan of his spine. At about the same time, he had a CT-guided cortisone injection, however, this offered no relief.
47On 19 November 2018, he attended the Neurosurgical Clinic of The Alfred hospital and was referred for an MRI scan of his lumbar spine,[36] which he had on 23 November 2018.[37]
[36] PCB 83
[37] PCB 181
48On 12 September 2019, he had a CT-guided nerve root injection,[38] however, this made the pain worse in his left leg.
[38] PCB 181
49On 14 September 2019, he woke up in uncontrollable pain and was taken by ambulance to the Royal Melbourne Hospital. He was given pain relief and discharged back to the Neurology Outpatients Department of The Alfred hospital.[39]
[39] PCB 7
50In November 2019, the doctors at The Alfred hospital recommended surgery, however, the plaintiff decided to opt for further conservative treatment. This included physiotherapy and seeing an exercise physiologist.
51On 22 November 2019, as recommended by doctors at The Alfred hospital, he had a repeat MRI scan.
52In May 2020, Dr Tan referred him for further chiropractic treatment, and on 13 May 2020, he re-attended Reload Physiotherapy. His treatment has included acupuncture and pain management.
53The plaintiff sees his general practitioner, Dr Tan, regularly. He has regular physiotherapy with Mr Mahmud. He is also under the treatment of a psychologist, Ms Costa, and has recently seen psychiatrist, Dr Ibrahim.
54He details his medication in his first affidavit, which includes pain medication Panadeine Forte, codeine, Palexia and Maxigesic.
Medical diagnosis
55Neurosurgeon and spinal surgeon, Mr Mohammed Awad, prepared a report dated 14 June 2022 as an independent expert.
56In his history, Mr Awad noted the plaintiff had a CT scan which showed an L5-S1 disc prolapse. He also referred to the MRI scan dated 23 November 2018 which showed a left L5-S1 disc protrusion with left S1 nerve root compression. A further MRI scan dated 22 November 2019 notes the left L5-S1 disc protrusion has largely resolved. Mr Awad noted: “There is still an extruded disc fragment with minimal residual protrusion contacting the left S1 nerve root without compression”.[40]
[40] PCB 140-141
57Mr Awad diagnosed the plaintiff with likely acute L5-S1 disc prolapse, ongoing aggravation of lumbar spondylosis and ongoing left leg radiculopathy.
58Dr Matthew Gutman, neurosurgeon, prepared a report dated 6 May 2022 as an independent expert.
59He states the patient’s initial presenting condition was consistent with a left S1 sciatica and it now appears he has features of a chronic pain and probable central sensitisation.[41]
[41] PCB 182
60The defendant was critical of Dr Gutman’s assessment, because he did not have access to the plaintiff’s MRI scan dated 22 November 2019. This MRI showed the disc had reabsorbed. Although he stated there were no specific features to suggest a functional component to the injury, he did note the sensory examination findings were not consistent with S1 radicular compression syndrome.[42]
[42] PCB 183
61It was submitted by the plaintiff that this diagnosis is of an organic condition as pain sensitisation, as distinct from a chronic pain syndrome, is accepted as an organic condition.
62Mr Kevin Siu, neurosurgeon, prepared a report dated 13 December 2022 as an independent expert.
63Mr Siu noted the MRI confirmed a left-sided L5-S1 disc protrusion and the doctors at The Alfred hospital organised for him to have a left-sided S1 nerve root injection.[43] He noted the plaintiff had a second MRI scan in November 2019. The left L5-S1 extruded material has largely resolved, and the left S1 nerve root is no longer compressed.[44]
[43] DCB 18
[44] DCB 19
64Mr Siu summarised the plaintiff’s condition that it is likely that the disc prolapse has resolved, but he had a period of nerve root compression and now he has developed a Chronic Pain Syndrome. Chronic Pain Syndrome is considered to be a psychologically-based condition.
65Dr Sabetghadam stated, in his clinical opinion, the plaintiff has non-specific pain symptoms which all have psychosocial reinforcers and “none of them have an organic origin”.[45]
[45] DCB 12
66The plaintiff submitted that the opinion of the specialists, Mr Awad and Mr Gutman, support the finding the plaintiff had a pathology that was compressing the nerve and that although it has largely resolved, “in the context of the nerve having been compressed for some time which may well, one would infer, possibly have damaged that nerve and may explain why the current diagnoses are what they are”.[46]
[46] T120-121
67The plaintiff is required to prove he has a physical injury for which there is a substantial organic basis.
68I am satisfied it is clear from the evidence his original injury was physically based. Further, it was not a soft tissue injury. The two CT-guided injections (although unsuccessful in offering pain relief) reflect the organic basis of his pain, as does the recommendation for surgery.
69I prefer the neurosurgeons, Dr Awad and Dr Gutmans’ expertise, and for that reason, I discount Dr Sabetghadam’s opinion regarding the absence of an organic origin.
70Whilst I note Mr Siu’s opinion on the basis of the second MRI the nerve compression has resolved, I note Mr Awad referred to “minimal residual protrusion contacting the left S1 nerve root”. Taking Dr Awad’s opinion at its highest supports a finding the plaintiff has an organically-based injury.
71I accept the organic component of the plaintiff’s back injury has not completely subsided or resolved and accounts predominantly for his current pain symptoms. The medical evidence supports a finding for an organic basis for the plaintiff’s pain. Having been satisfied there is a substantial organic basis and consequent impairment, I am not required to disentangle the physical and psychological consequences.
Do the pain and suffering consequences meet the statutory criterion of being “more than significant or marked and at least very considerable”?
Description of pain
72The plaintiff describes suffering from constant pain and stiffness, and he describes the pain as a deep ache.[47]
[47] PCB 8
73He describes the pain is radiating down the left side of his body, through his buttock down his left leg and into his left foot. He has sensations in his left leg including electric-shock-type pain, weakness and numbness.
Consequences
74The plaintiff described standing and sitting as aggravating the pain in his back. Short walks can help free up his back pain, but anything longer aggravates it. He finds sitting in the car very uncomfortable. He has difficulty bending, reaching, turning, twisting and lifting. His sleep is disrupted, and he is very tired during the day.
75The plaintiff was a passionate and talented soccer player and has not returned to soccer since March 2018/April 2018.
76He is no longer able to enjoy his strength or cardio sessions at the gym.
77He used to enjoy shopping with his partner, as well as long drives to explore Australia. He can no longer go on these adventures and struggles with his motivation.
78His relationship has been affected as they used to be extremely social, and that they were always “out and about”. He is now reluctant to leave the house and avoids anything that may aggravate his back. He feels guilty as to how this impacts his partner. He feels sad and depressed.
79His first affidavit detailed assistance he would get from his partner in terms of bathing and dressing. He clarified in his evidence he no longer requires this assistance.[48] In his second affidavit, he states he is “… trying to be a bit more independent with activities including small tasks … Sometimes it hurts but I just do it.”[49]
[48] T55
[49] PCB 22
80He is extremely sad he is not able to work. He has no qualifications, limited literacy, and limited computer skills.
81His first affidavit refers to him taking Viagra and having intimacy issues with his partner. In his second affidavit, he notes he stopped taking Viagra about two years ago.
82The plaintiff manages the pain with medication and physiotherapy. He is on a number of medications for his pain including Panadeine Forte, which he takes two to three times a day for back pain; paracetamol; codeine daily; Alexia daily for his back pain, as well as Palexia daily for back pain.
83The affidavit of Ms Collinda also details consequences of the plaintiff’s injury. She states:
“The effect that Ramin’s injury has had on his life and hobbies are numerous. It has been an ordeal that still goes on. Before the work injury Ramin suffered, he was very happy, energetic, motivated, and enthusiastic about life.
Ramin has always been a healthy athletic person, but since his work related injury Ramin has no motivation, is always upset and angry. Even if Ramin could be motivated he wouldn’t be able to do many physical things for any significant time due to the pain he suffers from.”[50]
[50] PCB 49
84She went on to say:
“From a motivated, healthy athlete to an unmotivated, depressed person – that’s how he’s become. Ramin loved soccer but since his work related injury he hasn’t been able to successfully play soccer, work or earn money which distresses him the most.”[51]
[51] PCB 49
85I note the surveillance footage, the Instagram video compilations and the two videos of the plaintiff proposing are interpreted by the defendant in two ways. Firstly, where he is attending a doctor’s appointment with a crutch he is said to be “faking” or exaggerating his pain. Where he is seen in an Instagram video as standing on a balcony or wearing a life jacket this is said to be evidence he is not injured. Similarly, the video of him on one knee. It is possible he thought he should take his crutch to the doctor’s appointment. He stated the physiotherapist told him not to become dependent on it, so he uses it sporadically. The footage from Instagram and from the church show a young couple living their life celebrating a birthday with a night at the casino or a holiday to Geelong. They are not evidence to support a finding that the plaintiff does not have an injury or suffer consequences from it. The only activity in one scene is the plaintiff kicking a ball on the beach which he immediately stated was taken pre-injury.[52]
[52] T65
86On the question of consequences, I pause to note the plaintiff was not cross-examined in any detail about his interest in soccer; however, he agreed in cross- examination he had been a keen soccer player for years.[53] I note the affidavit material refers to his father having played soccer for Iran,[54] the plaintiff always wanting to play soccer professionally,[55] and the plaintiff playing soccer in Iran growing up and competitively in Australia from 2015.[56] I accept his passion for soccer was not just an interest for him but a possible career path. At the time of his injury, some prospects were opening up for him at the Hume United Football Club State Two League FFV.[57] I find it highly unlikely the plaintiff would be faking the consequences of his injury if there was a possibility he could be still playing soccer.
[53] T23
[54] PCB 24
[55] PCB 24
[56] PCB 11
[57] PCB 23
87I take into account the pain the plaintiff suffers, reflected by the treatment and medication regime he is on. I also take into account the impact the injury has had on the plaintiff at a very young age, particularly on his promising soccer career and work prospects. Not being able to play soccer, a sport he is passionate about, and that he regarded as a feasible career path, has had a monumental impact on him.
88In comparison with other cases, I am satisfied the pain and suffering consequences for the plaintiff have been more than significant or marked and are at least very considerable. This is supported by his level of pain, and the medication he takes for it, the life altering nature of his injury in terms of his now limited capacity for physical activity. I also take into account his lack of enjoyment of life as reflected in the medical material, his affidavits and the evidence of his partner, Ms Collinda.
89I grant leave to commence proceedings at common law under sub-paragraph (a).
Is the “serious injury” under section 325(1)(c) of the Act a “permanent severe mental or permanent severe behavioural disturbance or disorder?”
90Section 325(2)(h) and (i) of the Act state:
“(h) the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of serious injury and not otherwise;
(i) the physical consequences of a mental or behavioural disturbance or disorder are to be taken into account only for the purposes of paragraph (c) of the definition of serious injury and not otherwise.”
91The plaintiff claims he has chronic Major Depressive Disorder with anxious distress.
92In his first affidavit, the plaintiff referred to suffering from Severe Depression. He constantly feels extremely sad or worse than sad. He suffers from terrible anxiety and regularly gets panic attacks and his heart runs at a million miles an hour and he struggles to breathe.[58]
[58] PCB 9
93Further, the plaintiff states he is teary every day and has become irritable and short tempered. He isolates himself even from his partner and spends most days in his bedroom alone.
94The plaintiff states he struggles to sleep and has regular nightmares; however, he cannot afford sleeping tablets.
95He also has no motivation or energy, feels worthless in his self-confidence and has had suicidal thoughts.
96His medication regime includes duloxetine for his depression, Tramadol, Largactil for his depression as well as mirtazapine and amitriptyline.[59]
[59] PCB 10
97He sees his psychologist on a mental health plan and last saw psychiatrist, Dr Ibrahim, in October 2022.[60]
[60] T51-52
98In his second affidavit, he states his back pain and mental illness have not resolved and remain huge problems for him.[61] The problems have remained at about the same level as described in his first affidavit. He describes his mental health is remaining very bad. He described himself as feeling anxious, miserable and depressed most of the time.[62] He suffers insomnia each night and may manage four hours’ sleep and then has bad dreams.
[61] PCB 20-21
[62] PCB 21
99His mental health problems were confirmed in the affidavit by Ms Collinda. She describes him as having no motivation and is always upset and angry.[63] He has a disturbed sleep. He has no goals and most of the time feels agitated, annoyed, moody and depressed which he was never like prior to his injury.[64] She states that due to his stress and depression, he does very little by way of day-to-day household duties such as cooking and cleaning.[65] She describes the mental impact the injury has had on the plaintiff as severe. He is now very insecure, especially in their relationship.
[63] PCB 49
[64] PCB 49
[65] PCB 50
100The plaintiff’s treating psychologist, Ms Lisa Costa, prepared a report dated 9 February 2023. She has treated the plaintiff since 9 March 2021. Her diagnosis was Somatic Symptom Disorder with comorbidity existing, severe Major Depressive Disorder, recurrent with anxious distress.[66] Ms Costa stated Major Depression significantly affect’s a person’s family and personal relationships, work life, sleep disruption, eating habits, low mood, experience of pleasure, and he has a poor prognosis.[67]
[66] PCB 174
[67] PCB 177-178
101Dr David Weissman, psychiatrist, prepared a report dated 20 June 2022. Dr Weissman considered the plaintiff a very genuine historian, not displaying any abnormal pain behaviour and not embellishing or exaggerating symptoms.
102Dr Weissman noted the plaintiff has:
“… persistent and severe depressed/lowered mood with marked anxiety, nervousness and worry, … marked and uncharacteristic frustration, irritability, agitation and anger. This is coupled with feelings and thoughts of hopelessness, helplessness, worthlessness, uselessness, shame, embarrassment, guilt and regret, as well as, worryingly, passive suicidal ideation, anhedonia and a strong sense of ennui.”[68]
[68] PCB 157
103Dr Weissman assessed him as suffering from a chronic Major Depressive Disorder with anxious distress and agitation of moderately severe intensity, relevant to his employment. He noted his (employment related) pain, injury, disability, limitation and restriction is the significant and predominant contributing factor to his Major Depressive Disorder.[69]
[69] PCB 158
104Dr Weissman opined his psychiatric prognosis for the future is very uncertain and guarded, poor, negative and unfavourable.[70]
[70] PCB 159
105Dr Weissman’s opinion was that the plaintiff should continue to see his general practitioner, Dr Tan; his psychologist, Ms Costa, and psychiatrist, Dr Ibrahim, on a regular basis for treatment and supportive therapy.
106I was cautioned by the defendant about basing my decision on Dr Weissman’s report because he saw the plaintiff once and the assessment appointment was conducted via FaceTime. I note the report is dated 20 June 2022, which was still during the COVID-19 pandemic. I do not regard that as valid reason not to accept Dr Weissman’s comprehensive assessment.
107Both Dr Weissman and Ms Costa discount the plaintiff has factitious disorder or malingering.
108Dr Samir Ibrahim, senior consultant psychiatrist, prepared a report dated 26 December 2021. He is the plaintiff’s treating psychiatrist, and, in that report, he notes he has seen him twice, in August 2021 and October 2021.
109He diagnosed the plaintiff with an Adjustment Disorder and Depression symptoms. The plaintiff is prescribed duloxetine (an anti-depressant), Endep (an anti-depressant) and Largactil (a sedative anti-psychotic). He is also prescribed Temazepam (a benzodiazepine) for sleep.[71]
[71] PCB 131
110He states his psychiatric disability depends on the physical injuries. He notes his prognosis is unclear and guarded, as the physical injuries are the main pathology and they caused/cause the psychological symptoms.[72]
[72] PCB 132
111Dr Kevin Siu, neurosurgeon, is of the opinion the plaintiff’s disc prolapse has resolved, and the period of nerve compression has developed into a Chronic Pain Syndrome, which is a psychiatric condition.[73]
[73] DCB 20
112I take into account the plaintiff’s description of his symptoms, corroborated by his partner’s evidence and the impact on his daily activities and social life. I note the diagnosis of his treating psychiatrists, his suicidal ideation and the prescription of several different anti-depressant medications. I note Dr Weissman referred to the plaintiff suffering from a moderately severe group of psychiatric conditions consequent to his pain, disability, limitation and restriction.[74] The plaintiff is transformed from a young man described prior to his injury as “very happy, energetic, motivated, and enthusiastic about life” to post injury most of the time being “agitated, annoyed, moody and depressed”.[75] I find the medical evidence supports his partner’s description of the plaintiff, who is a young man in his prime of life.
[74] PCB 159
[75] PCB 49
113Compared to the range of comparable cases, I am satisfied the plaintiff has a permanent and severe mental disorder.
114I grant leave to commence proceedings at common law under sub-paragraph (c).
Loss of earning capacity
115The plaintiff seeks leave to sue for pecuniary loss damages and has the burden to establish the consequences of the injury are serious with respect to loss of earnings.
116As he was under twenty-six at the time of the accident, he has to establish that at the date of the hearing, he has a loss of earning capacity of 40 per cent or more. Further, he must establish that he will, after the date of the hearing, continue to have a permanent loss of earning of 40 per cent or more.[76] That assessment is made on common law principles.
[76] State of New South Wales v Moss (supra) at paragraph [71]
117In this case, as the plaintiff has not worked since 14 November 2017, there is no agreed “without injury” earnings figure. The plaintiff submitted his wage at the cheese factory was just over $43,000 gross.
118In dispute is the plaintiff’s capacity for work and whether his loss of earning capacity is permanent.
119The defendant’s counsel submits the plaintiff is able to find work as a traffic controller, infringements officer, cashier at Bunnings or customer service officer. Further, the defendant submits he could be a train driver, a tram driver or an Uber driver.
120The defendant submitted the difficulty with the plaintiff’s case is that he is improving, evidenced by the fact he no longer needs a crutch and hardly limps. His second affidavit detailed that his partner no longer needs to help with his personal care.
121Against this, the plaintiff submits his work capacity is “effectively non-existent”.[77] He is not able to work consistently and reliably because of his psychiatric problems and very significant pain. This is supported by some but not all the medical opinions.
[77] T136
Evidence regarding work capacity
122The plaintiff’s general practitioner, Dr Baglar, prepared a report dated 5 August 2019, noting he requires surgery for his back condition. He states:
“In his current state he is unable to walk and stand for a reasonable period and he is unable to bend, rotate, lift and carry. Right at this moment he is strictly unemployable.”[78]
[78] PCB 80
123With respect to work capacity, Dr Awad stated the plaintiff does not have capacity for his pre-injury employment:
“He does have some capacity for sedentary work on a part time basis should a suitable job be available. In practice, however, we will take into account his age, education, training, skills, work experiences as well as the nature and severity of his lumbar spine condition, it is going to be extremely unlikely that he will be able to procure any alternative employment, and if he did, it will be unlikely that he will be able to carry this out in a consistent and reliable fashion.”[79]
[79] PCB 141
124In his report dated 20 June 2022, Dr Weissman, psychiatrist, was of the opinion the plaintiff was suffering from a moderately severe group of psychiatric conditions, namely chronic Major Depressive Disorder with anxious distress and agitation. Dr Weisman opined that due to the nature, extent, severity and chronicity of his symptoms, there has been, and there continues to be, a total loss of work capacity for pre-injury duties, suitable duties or alternative duties.[80]
[80] PCB 159
125Dr Sabetghadam, specialist occupational physician, noted the plaintiff had multiple motivational, psychological, behavioural and attitudinal factors to a lack of willingness to return to meaningful employment.[81]
[81] DCB 12
126Dr Sabetghadam’s opinion was that the plaintiff “can participate in any occupational duties that he is willing to …”.[82] He was of the opinion the plaintiff could work as a traffic controller, infringement notice worker, Bunnings in customer service, or a supermarket cashier or in retail in customer service.[83] Further, he could be a tram, bus or Uber driver if he is willing to. He could work as a delivery driver or light parcel driver or in heavy duties such as nursing or industrial jobs.
[82] DCB 13
[83] DCB 13
127Dr James Rowe, specialist occupational physician, prepared a report dated 17 August 2022. In his opinion, the plaintiff is not fit to return to his pre-injury duties, as they would be outside his current physical capacity:
“Mr Salarinia is not fit for any work that requires heavy, physical labour and this is likely to be a permanent incapacity.”[84]
[84] PCB 170
128Dr Rowe states the plaintiff may have some limited capacity for suitable sedentary employment on a minimal part-time basis, noting he had no previous experience in a sedentary or office-based environment. He would require extensive retraining and re-education to transition to this type of employment. He states the plaintiff needs a re-assessment in twelve months’ time.[85]
[85] PCB 170
129Dr Rowe disagreed with Dr Sabetghadam’s assessment, but noted:
“He is not precluded from all employment but he cannot return to physically demanding work, he will need help to transition”.[86]
[86] PCB 171
130Dr Tan, the plaintiff’s general practitioner, whom he sees every fortnight or month, prepared a report dated 6 January 2023. With respect to his capacity for employment, he states he remains totally incapacitated for any type of employment.[87]
[87] PCB 173
131Dr Gutman, neurosurgeon, was of the view the plaintiff would need a workplace assessment to ascertain what work he could perform without provoking pain.[88]
[88] PCB 183-184
Loss of earning capacity
132In relation to the pre-injury earnings, the plaintiff’s submission was his pre-injury gross income was just over $40,000. Sixty per cent of which is $24,000.
133To establish the requisite 40 per cent loss, the plaintiff must show he is incapable of earning a sum greater than $16,000 per annum.
134The plaintiff is not currently working and has not worked since November 2017. This is now a period of over five years.
135Suitable employment requires an objective test which looks at the worker’s suitability for work, taking into account matters such as age, education, experience and residence.
136Relevant to this application, with respect to rehabilitation, pursuant to s325(2)(g) of the Act, the plaintiff must establish that retraining or rehabilitation in an employment sense has nothing to offer him in the future that would give rise to the 40 per cent loss.
137The defendant’s counsel submits the plaintiff has capacity for future employment.
138The plaintiff has not attempted any study or re-training.
139With respect to proposed jobs that involved dealing with the public, he stated he did not have the tolerance to deal with members of the public. Specifically, the plaintiff stated:
“Any conversation between me and any stranger makes me agitated, because I do suffer from depression.”[89]
[89] T49
140The plaintiff was also asked about work as a supermarket cashier and responded to the effect he was working on getting more treatment for his mental health. He stated:
“Because I’m trying to get more treatment for my mental health first, I don’t want to have trouble while I’m working, having fights with people or arguing with people.”[90]
[90] T49
141I prefer the evidence of Dr Rowe, who is a specialist occupational physician.
142I note the plaintiff has not worked since November 2017; however, he is still young and has not attempted any retaining or re-education. Dr Rowe is of the opinion there is sedentary work he could re-train for and recommends further assessment. Dr Baglar’s report is dated and other doctors such as Dr Awad and Dr Gutman also note there is some capacity for sedentary work and that he needs a workplace assessment. This coincides with Dr Rowe’s guarded assessment.
143Considering this evidence, given his age and lack of retraining or re-education, I have reached the conclusion the plaintiff is capable of retraining and is not totally incapacitated for work. Further, the advice from Dr Rowe and Dr Gutman suggesting re-assessment in twelve months suggests a lack of permanency in his current condition.
144I refuse leave to bring proceedings for the recovery of loss of earning capacity.
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