Shahab v Victorian WorkCover Authority
[2019] VCC 276
•15 March 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-18-03295
| AUOOB SHABAB | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE HINCHEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7, 8 and 11 February 2019 | |
DATE OF JUDGMENT: | 15 March 2019 | |
CASE MAY BE CITED AS: | Shahab v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 276 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – paragraph (a) and (c) of the definition of “serious injury” – pain and suffering – loss of earning capacity – whether injury to lumbar spine is organic in nature – whether injury resulted in serious injury consequences – relevant principles
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s335(2)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Hunter v Transport Accident Commission & Avalanche [2005] VSCA 1; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Meadows v Lichmore Pty Ltd [2013] VSCA 201; FokasvStaff Australia Pty Ltd [2013] VSCA 230; Victorian WorkCover Authority vNguyen [2016] VSCA 284; GeorgopoulosvSilaforts Painting Pty Ltd & Ors [2012] VSCA 179
Judgment: Application granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J C Richards QC with Mr S Dawson | Zaparas Lawyers Pty Ltd |
| For the Defendant | Ms L M Glass | Hall & Wilcox Lawyers |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s335(2) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) for injury suffered by the plaintiff in the course of his employment with Labour Solutions Australia Pty Ltd (“the employer”) and while conducting work at the premises of JBS Australia Pty Ltd, from on or about 6 January 2016 until about 6 February 2016.
2 The plaintiff seeks leave to bring proceedings for damages in relation both to loss of earning capacity and pain and suffering.
Relevant legal principles
3 The application is brought pursuant to subsections (a) and (c) of the definition of “serious injury” as defined in s325(1) of the Act, namely:
“‘Serious injury’ means –
(a) permanent serious impairment or loss of a body function … .
…
(c) permanent severe mental or permanent severe behavioural disturbance or disorder.”
4 The impairment of body function relied upon is function of the lumbar spine.
5 The permanent severe mental or permanent severe behavioural disturbance (“psychological injury”) is said to be in the nature of an Adjustment Disorder with Anxiety and Depression.
6 In order to establish an entitlement to recover damages under the Act, apart from satisfying the definition of a “serious injury”, by s5 of the Act, the relevant physical or psychological injury must have arisen out of, or due to the nature of the plaintiff’s employment with the employer on or after 1 July 2014. As set out in s325(1) of the Act, the impairment of the body function or psychological injury must be permanent.
7 The plaintiff’s burden of proof on the application is on the balance of probabilities.
8 In relation to the physical injury which relates to the impairment of a body function, by s325(2)(c) of the Act, it is the “consequences” of the bodily impairment which produce the “pain and suffering” or “loss of earning capacity” which must be “serious” – that is, the plaintiff must prove, on the balance of probabilities, that the impairment or loss of body function results in relevant “consequences” that are “when judged by comparison with other cases in the range of possible impairments … fairly described as being more than significant or marked, and as being at least very considerable.”
9 Section 325(2)(h) requires me to disregard all psychological or psychiatric consequences in determining an application which relates to a physical impairment.
10 In relation to the psychological injury, by s325(2)(d) of the Act, it is the “consequences” of the permanent severe mental or behavioural disturbance which produce the “pain and suffering” or “loss of earning capacity” which must be “severe” – that is, the plaintiff must prove, on the balance of probabilities, that the psychological injury results in relevant “consequences” that are “when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders, fairly described as being more than serious to the extent of being severe.”
11 Section 325(2)(i) requires me to disregard all physical consequences in determining an application which relates to a psychological impairment.
12 Sections 325(e) and (f) set out the statutory formula by which the Court must measure the plaintiff’s loss of earning capacity prior to any grant of leave. This formula provides that the plaintiff must establish a loss of earning capacity of 40 per cent or more, as measured in accordance with s325(f) of the Act.
13 By s325(2)(b), in determining the “consequences” of the injury, the Court is required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury.
14 In determining the application, the Court:
(a) must assess whether “the injury” is a “serious injury” as at the time the application is heard.[1] In relation to the assessment of the pain and suffering consequences of an injury, it has been held that this task is largely a question of impression or value judgment;[2]
(b) must give reasons that disclose the pathway of reasoning in dealing with the evidence and issues raised by the application.[3]
[1]Section 325(2)(j) of the Act
[2]See 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]
[3]See generally HuntervTransport Accident Commission & Avalanche [2005] VSCA 1 at paragraphs [23]-[26]
15 In reaching my conclusions in this matter, I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors Podolak[4] and Grech v Orica Australia Pty Ltd & Anor.[5]
[4](2005) 14 VR 622
[5](2006) 14 VR 602
16 The plaintiff relied upon two affidavits, gave viva voce evidence with the assistance of an interpreter and was cross-examined at length. The defendant also cross-examined the plaintiff’s treating psychologist, Mr Martin Axelsson.
17 In addition, both parties relied upon medical reports and other materials which were contained within Court Books tendered in evidence.[6] I have read all of the tendered material and viewed the surveillance footage of the plaintiff. In this judgment, I will refer only to the relevant parts of the tendered materials.
[6]The Plaintiff’s Court Book was marked as exhibit P1; the Defendant’s Court Book was marked as exhibit D1
The Plaintiff’s background
18 The plaintiff was born in 1983 in Iran. He is now aged thirty-six. He attended school in Iran until he was fifteen or sixteen years old. Upon leaving school, he worked for his father, who was in the business of selling used cars and real estate. The plaintiff’s role in that business was administrative in nature.
19 At the age of eighteen, the plaintiff undertook compulsory military service in Iran. He completed basic training and was then placed in the role of driver, which required him to drive to and from remote locations and stay overnight.[7] After a few months in the role, he was exempted from completing the full period of service because he suffered from anxiety and depression, which meant that he could not stay in remote locations.[8] During cross-examination, the plaintiff said he was prescribed medication for depression and anxiety at the time but could not recall the name of that medication. He said he did not take it for very long[9] and when he got back home and was with his family, he felt much better.[10]
[7]Transcript (“T”) 19, lines 9-30
[8]T19, line 27
[9]T20, line 3
[10]T20, line 8
20 After completing his military service, the plaintiff resumed working for his father’s business.
21 In about 2005 or 2007, the plaintiff attended a political demonstration in Iran. He was arrested by police, forced into a van and taken to an undisclosed location where he was detained for two to three days. For a significant period during this time, he was handcuffed and made to hang from his hands.[11] In addition to being physically and verbally assaulted, he was tortured.[12] Eventually he was released onto the street where strangers found him and took him to hospital. The plaintiff had to have part of one of his little fingers amputated.[13] He began to suffer neck and shoulder pain as a result of being suspended from his hands.[14] The plaintiff believed he was released because he did not have any prior political background.
[11]T23, line 20
[12]T23, line 22
[13]T23, lines 29-31
[14]T24, line 4
22 The plaintiff was subsequently harassed by government officials and kept under surveillance for a period.[15] Government representatives would come to his home, sometimes with weapons.[16] Under cross-examination, the plaintiff accepted that the police detention and harassment exacerbated his pre-existing anxiety and depression.[17] This exacerbation was not serious enough for the plaintiff to require medication at this time. The plaintiff said he had sleep problems as a result of these incidents and would lie awake at night.[18]
[15]T25, line 2
[16]T24, lines 27-28
[17]T25, line 3
[18]T25, lines 16-21
23 As a result of his ordeal with police, the plaintiff developed an addiction to opium and morphine, and felt very isolated. He became withdrawn and introverted because he was afraid that if he went anywhere he would be arrested.[19] The plaintiff accepted that the addiction had a detrimental impact on his mental health.[20] The plaintiff was unable to recall when his addiction began but stated during his evidence that he had been “narcotic free for seven years, 11 months and 18 days”.[21]
[19]T25, lines 23-28
[20]T26, line 11
[21]T26, line 19-21
24 In 2013, the plaintiff paid people smugglers to assist him to come to Australia.[22] The plaintiff’s journey consisted of a number of legs by air and sea. The plaintiff spent time in various immigration detention centres including on Christmas Island and in Darwin and Perth. Upon being released, the plaintiff moved to Melbourne.[23] He had limited English and was not entitled to work. He received income from the Australian government.[24]
[22]T26, line 26
[23]Exhibit P1, page 2
[24]Exhibit P1, page 2
25 In about December 2015, that is, two years after the plaintiff arrived in Melbourne, he obtained a visa that entitled him to work. He said he started looking for a job as soon as he obtained his visa.[25] With the assistance of AMES Australia, the plaintiff found a job with the employer, a labour hire company. The employer placed the plaintiff in the role of abattoir labourer at the premises of JBS Australia Pty Ltd.
[25]T28, lines 10-13
Relevant prior injuries
26 In his affidavit sworn 28 March 2018, the plaintiff said that the injury to his right hand does not cause him any restrictions and he does not have any right shoulder pain. During evidence, the plaintiff made reference to previous neck and shoulder problems. As referred to above, these injuries were caused by events in Iran prior to him arriving in Australia as a refugee. It is clear that because of the same horrific events, the plaintiff has in the past, and continues to suffer, from Post-Traumatic Stress Disorder (“PTSD”). Having heard all of the evidence, including the cross-examination of Mr Axelsson (referred to below), I find that as at the date of the incident, these injuries constituted no impediment to the plaintiff’s ability to work.
27 In addition to the injuries which he suffered as a result of being tortured, the plaintiff also deposed to suffering from an injury to his right shoulder while living in Iran, which had caused him some difficulty on and off ever since.[26] He said that strenuous activities such as doing weights at the gym usually triggered his right should pain. He attended upon his general practitioner from time to time about the pain in his right shoulder and also in relation to the pain in his upper back and back of his neck.[27]
[26]Exhibit P1, page 7
[27]Exhibit P1, page 7
28 As at the date of swearing his first affidavit,[28] the plaintiff said that he did not have any pain in his right shoulder, upper back or neck. He said that the pain in his lower back, which is the subject of this claim and which sometimes radiates to his upper back and neck, is different to the pain he used to feel in this area.[29] This situation had not changed as at the date of swearing his second affidavit.[30]
[28]28 March 2018
[29]Exhibit P1, page 8
[30]4 February 2019
The incident
29 The plaintiff commenced employment with the employer on about 6 January 2016. He was employed on a casual basis. He usually worked four days per week, from 5.00am to 3.00pm, in boning room number 3.
30 In summary, the plaintiff’s role variously comprised lifting parts of meat carcasses into containers and placing filled containers onto a conveyer belt, as well as pushing a trolley loaded with meat. He also performed general cleaning duties which involved removing extra bones and lifting boxes weighing up to 20 kilograms. The plaintiff deposed to the work involving a lot of heavy lifting and bending. He had to work very quickly.[31] In relation to the work involving the trolley, he said there usually was not a clear path for him to transport the trolley and he often had to manoeuvre it in a crouched and bent position.[32]
[31]Exhibit P1, page 2
[32]Exhibit P1, page 4
31 In about late January 2016, the plaintiff was transporting a loaded trolley. As there was no clear path, he bent over and walked underneath a table in a bent position, he then turned around and pulled the trolley underneath the table. As the plaintiff stood up, he felt severe pain in his low back (“the incident”).[33] The plaintiff thought he had pulled a muscle and that the pain would go away.
[33]Exhibit P1, page 4
32 A few days after the incident, the plaintiff told a supervisor that he had back pain. The supervisor took the plaintiff to an onsite nurse who recommended he take pain medication and perform light duties. The plaintiff performed light duties for a few days but ceased work on 6 February 2016 because of back pain. The plaintiff has not worked since.
33 On 8 February 2016, the plaintiff attended his general practitioner, Dr Iman Tahmasebi, complaining of severe low back pain which started at work. A CT scan was ordered and performed the next day. The report of the scan contained the following observations:
“Impression:
Primary canal stenosis in the lumbar spine, which appears most marked at L3 and L4 vertebral level. There are superimposed disc bulges at L2/3, L3/4 and L4/5 levels. Overall, there is mild narrowing of spinal canal at L2/3 and moderate narrowing of spinal canal at L3/4 and L4/5 levels.”[34]
[34]Exhibit P1, page 39
34 Between April and June 2016, the plaintiff attended five Medicare funded physiotherapy sessions at the Sunshine Specialist and Dental Centre. The treatment comprised electrotherapy, spinal mobilisation, soft tissue work and gentle back exercises.[35]
[35]Exhibit P1, page 51
35 At the request of Dr Tahmasebi, the plaintiff underwent an MRI scan of his lumbar spine on 10 November 2016. The report of that investigation stated:
“There is right-sided L5 spondylosis. Short lumbar pedicles contribute to some minor spinal canal narrowing at L3/4 and L4/5, but there are no signs of nerve root compression.”[36]
[36]Exhibit P1, page 38
36 Late in 2016, Dr Tahmasebi arranged for the plaintiff to go on the public waiting list to see a neurosurgeon through the public health system. The plaintiff is still waiting for an appointment.[37]
[37]Exhibit P1, page 6
37 In 2017, the plaintiff attended at least two further physiotherapy sessions funded by Medicare. The plaintiff deposed to the fact that he is unable to afford more sessions.
38 As a result of a referral from Dr Tahmasebi, the plaintiff saw Mr Martin Axelsson, psychologist, for ten sessions between January and October 2018. Those sessions were funded by Medicare. In a report dated 31 January 2019, Mr Axelsson said the plaintiff fulfilled the diagnostic criteria for Adjustment Disorder with Anxiety and Depressed Mood.[38]
[38]Exhibit P1, page 82
39 Also by referral from Dr Tahmasebi, the plaintiff attended on Dr Ashok Kumar Singh, a consultant psychiatrist, in August 2018. Dr Singh recorded the plaintiff’s issues as follows:
·“Centrelink payment stopped
·Bridging Visa
·Feels that he will be deported
·Feeling anxious and depressed
·Periodic period of low and normalcy [sic]
·Feels trapped
·Feels negative about him self
·Poor self confidence
·Having issue with no contact with his family since he had come to Australia
·Have been victimised in his country Iran
·Threat for his life
·On DSP for long time
·Unemployed since arrived in Iran [sic]
·Night mares and flashbacks at times.
·Feeling sad in general all the time
·Low motivation
·Low energy and poor concentration
·Feels anxious at times
·Feeling guilty about his past and coming to Australia.”
40 Dr Singh concluded that the plaintiff suffers from an Adjustment Disorder with Mild Depression and Mild Anxiety.[39] He recommended that the plaintiff take certain medication to address these issues and that he attend for review in six months.[40] In cross-examination, the plaintiff said he had attended a further appointment with Dr Singh in January 2019. The plaintiff was critical of the short amount of time Dr Singh initially spent with him.
[39]Exhibit D1, page 166
[40]Exhibit D1, page 166
The Plaintiff’s evidence
41 The plaintiff swore two affidavits, the first on 28 March 2018 and the second on 4 February 2019.
42 In summary, his evidence as to the pain and suffering consequences which he presently experiences is as follows:
Experience of pain, medication and treatment
(a) he has constant pain in his lower back that extends down into his left leg and ankle via his left hip. Pain and numbness extends down his right leg at times, usually after walking for a while;[41]
[41]Exhibit P1, page 14
(b) his pain is usually at a level of about 8 out of 10;
(c) bending, twisting and lifting more than 1 kilogram aggravates the pain in his low back, buttocks and legs and he tries to avoid these movements;[42]
[42]Exhibit P1, page 9
(d) he has a sitting tolerance of about 15 to 20 minutes before he needs to stand up;[43]
[43]Exhibit P1, page 9
(e) he has experienced increasing neck and upper back pain because of overcompensating when bending or leaning;[44]
[44]Exhibit P1, page 14
(f) he attends the hydrotherapy pool to alleviate his pain as often as possible, usually daily;
(g) almost every day he wears a back brace to assist with his pain, except when sleeping;
(h) he sees Dr Tahmasebi most weeks for medication and for Centrelink matters;
Medication
(i) he is presently taking:
“Lyrica (300mg) one tablet morning and night for the pain;
Mirtazapine (45mg) two tablets at night for the pain;
Celebrex (200mg) one tablet twice per day for inflammation;
Amitriptyline (50mg) two tables at night for [his] anxiety and stress; and
Esomeprazole (20mg) one tablet two to three days per week to address the side-effects the other medication is having on [his] stomach”;[45]
[45]Exhibit P1, page 14
Ability to sleep
(j) he has difficulty sleeping because of pain in his low back, buttocks and legs. He finds it hard to find a comfortable position and it takes him a while to fall asleep. He often wakes due to back pain;
(k) he experiences drowsiness from medication during the day and is forced to take naps most afternoons;[46]
[46]Exhibit P1, page 15
Activities of daily living
(l) he can drive for about 15 to 20 minutes and usually only drives locally. He often feels stiff and sore when he gets out of the car;[47]
[47]Exhibit P1, page 10
(m) he showers and dresses independently but does so slowly to avoid aggravating his low back, buttocks and legs;
(n) prior to the incident, he shared household chores equally with his housemates. Now he does some light chores such as making a sandwich and washing a few light dishes. His housemates do all the other chores;
(o) he can do some light grocery shopping but cannot carry much;
(p) prior to the incident, he enjoyed going out to clubs with friends, going for long walks, swimming and doing weights at the gym. He rarely does any of those activities because of low back, buttock and leg pain. He spends most of his time at home watching television or playing on his phone.[48] He feels he is living the life of an old person;[49]
[48]Exhibit P1, page 10
[49]Exhibit P1, page 10
Work capacity
(q) the plaintiff deposed to the fact that he would like to get back to work and get his life and his self worth back; however, he said that taking into account the symptoms of his injury, his short and limited work experience in Australia, his lack of confidence, his poor English skills, his lack of education, his limited ability to concentrate and his need to rest and take breaks, he thinks that this hope is unrealistic.[50]
[50]Exhibit P1, page 15
43 Under cross-examination, the plaintiff gave the following evidence:
(a) after his injury, he attended an English course for a few days. He did not complete the course because of his difficulties with sitting;[51]
[51]T16, lines 18-21
(b) he has not looked for work since his injury.[52] He obtained a certificate from Dr Tahmasebi. He said he “filled out the forms … [an] application for surgery. [I have been] waiting for the specialist.”[53] He said Dr Tahmasebi did not tell him that he could go back to work, rather, he told the plaintiff to rest;[54]
[52]T31, line 12
[53]T31, lines 13-15
[54]T31, lines 21-22
(c) in relation to seeing a specialist, he said:
“There are two different specialists. One specialising in pain, the other one is a surgeon that I’m waiting for because I don’t have money. I can’t afford paying that out of my pocket, I’m waiting for governments [sic] to. One of the reasons they want to send me to specialist or pain specialist is because I refuse using medication, consisting morphine or having morphine in it. Therefore the other forms of painkillers they only get me confused and dizzy or kind of foggy, therefore they’re gonna send me to a pain specialist to help me with that.”[55]
[55]T31, line 24 – T32, line 3
(d) in relation to seeing a surgeon, he said:
“I’m still waiting. They sent me a letter which came with another return envelope. The letter was asking if…I’m still sure that I want to proceed with the surgery and I said yes, and I put it on the return envelope and I sent it back.”[56]
[56]T33, lines 13-17
(e) he was asked whether he had made attempts to follow up the surgical appointment, to which he said, “So it’s not something I can follow-up. I told my GP. The GP said ‘I sent them a letter’.” The plaintiff went on to say that he was contacted using a telephone interpreter in Arabic language. That person said “You’re still on the waiting list”;[57]
[57]T34, lines 17-19
(f) he said he is able to walk normally if he takes his medication on time and correctly and also if he does hydrotherapy and exercises.[58] He said that even when walking normally, he still experiences pain.[59] He said, sometimes, after driving for 30 or 40 minutes and then walking a distance:
[58]T36, lines 7-13
[59]T36, line 15
“… [the pain] gets so bad I have to lie down. However there are times that I’ve taken my meds and also sitting in a Jacuzzi, or you know, in a sauna, that would be – and after that … I’m very good, I can cope for a few hours.”[60]
[60]T36, lines 18-25
The plaintiff accepted that his condition fluctuates quite dramatically, depending on the circumstances;[61]
[61]T36, lines 26-27
(g)when asked if there was ever a time where pain was not present, he said:
“… [the pain] is persistent, even when I’m sleeping or lying down the pain is there. I put cushions under my knees and on my back, I have to do some form of movements. And I take strong painkillers and sleeping pills to be able to sleep [for a] few hours … .”[62]
[62]T37, lines 20-24
(h)he said he still has problems with bending forwards and backwards from the waist. He said he told Dr Awad that he can do movements like that but cannot do so repetitively.[63] He said he has been saying his prayers in a sitting position for the last three years instead of standing and bending;[64]
[63]T38, lines 7-16
[64]T38, lines 13-16
(i) he accepted that he suffered sleep issues when he was in the military in Iran[65] and again after being detained in Iran,[66] continuing until the time he left Iran;[67]
[65]T42, line 28
[66]T43, line 1
[67]T43, line 4
(j) he denied having difficulty starting a new life in Australia. He denied having low mood and feeling a bit down in the early years of being in Australia;[68]
[68]T43, line 43
(k) he accepted that he consulted Dr Tahmasebi on 23 June 2015 about his mental health;
(l) in a subsequent consultation with Dr Tahmasebi on 1 July 2015, he said he was feeling down “Because at the time I was in limbo, I didn’t have a working visa”.[69] He said it was likely that he discussed “experiencing stress”,[70] that his energy was “a bit low”[71] and “positive thinking”.[72] He accepted that he felt disappointed by his situation;[73]
[69]T44, lines 20-21
[70]T44, line 22
[71]T44, line 27
[72]T44, line 29-30
[73]T44, line 24
(m) he said he cannot afford to self-fund physiotherapy sessions;[74]
[74]T46, line 8
(n) he denied receiving assistance from a friend with dressing after an examination with Dr Yong;[75]
[75]T48, line 2
(o) he said he was unable to recall if he was limping when he saw Dr Brazenor but said it was likely because when he drives, he sometimes develops leg pain;[76]
[76]T49, lines 20 and 23-24
(p) he said Dr Singh did not allow him to have an interpreter so he used Google Translate to communicate with and understand that doctor;[77]
[77]T51, line 21-26
(q) he was asked about ownership of a Toyota Camry that he purchased in 2017 for $3,000 and subsequently sold for $4,800.[78] He was also asked about ownership of a Ford Fairlane, a BMW and a permit he obtained from VicRoads to move an unregistered vehicle.[79] No suggestion of any wrongdoing or undeclared work capacity emerged as a result of this line of questioning;
[78]T61, lines 15 and 19
[79]T62 and T63, lines 5-8
(r) he was challenged about various cash deposits that had been made over a period of time into his Commonwealth Smart Access Account.[80] He said he collects $650 every month from his housemates for utility bills and for rent and puts those funds into his account. He said the lease is in his name only.[81] He denied having other sources of cash aside from rent money.[82] He said if he won money at the casino, he would put it into his account.[83] An examination of the plaintiff’s bank records, a vast number of which were included in the Court Book,[84] demonstrated entries which were consistent with the evidence given by the plaintiff prior to him being shown those documents;
[80]T71, line 31
[81]T71, line 31 – T72, line 9
[82]T72, lines 8-9
[83]T72, lines 13-14
[84]Exhibit D1, pages 167-243
(s) in the period after his injury, he said he visited the casino –
“… a lot and the environment is beautiful and also for walking. My physiotherapist has advised me to walk and I have insomnia at night as well and I used to go there and walk and I paid the price for it.”[85]
[85]T72, lines 28-31 and T72, line 1
He said he would “stay [at the casino] for several hours”.[86]
[86]T72, line 26
He further said:
“Basically when I started there I went [to the Casino] to walk but then found myself in the trap of gambling.”[87]
[87]T111, lines 10-12
(t) as to how often he won money, he said “The reality of the case is I don’t know how many times”.[88] He later said “I don’t think it was more than 10 times winning, most of the time it’s my own money that goes back”. [89] He said he stopped going to the Casino in November 2018;[90]
[88]T73, lines 11-12
[89]T74, lines 13-16
[90]T109, lines 19-24
(u) he receives payments from Centrelink. Those payments were stopped for a period but subsequently resumed;[91]
[91]T110, line 20-26
(v) in November 2017, he received a compensation payment of $18,000. He accepted that he had, at that time, sufficient financial means to spend money on treatment like physiotherapy. He said he only paid for medication.[92] In response to the proposition that he did not self-fund physiotherapy or other treatment because the pain or restriction was not significant enough to require it,[93] he said:
[92]T114, lines 21-22
[93]T115, lines 1-6
“I did have pain it was significant, but I had significant problem which was addiction to gambling. And I neglected myself … .”[94]
[94]T115, lines 3-6
(w) he was challenged about failing to mention his experiences in Iran in his affidavits, and diagnoses prior to his WorkCover injury. He said that he spoke to his psychologist and psychiatrist about that;[95]
[95]T116, lines 16-17
(x) he pays for a gym membership but only uses the steam room and sauna;[96]
(y) in relation to socialising with his friends, he accepted that he could, for example, go to a nightclub, by driving to a club where his friends are, walk around in the same manner as he does at Crown Casino and enjoy the company of friends.[97]
[96]T121, lines 11-12
[97]T122, lines 1-20
Medical evidence regarding loss of earning capacity and pain and suffering
44 Following the incident, the plaintiff continued to see his treating general practitioner, Dr Tahmasebi, who, in his report to the plaintiff’s solicitors dated 5 February 2019, described the plaintiff’s symptoms in the following manner:
“Initially Mr. Shabab came to see me on the 8th February 2016 while he was complaining of sever[e] low back pain which started after lifting heavy weight in meat factory. He has been my patient since 29th November 2013 and has not complained of back pain before 8th February 2016. His current medication is Lyrica 300 mg BD and Celexib 200 daily. He still has low back pain along with referral pain to both legs. He is … [on the] waiting list to see Neurosurgeon in hospital outpatient clinic …
Mr. Shabab has low back pain problem because of lumbar disc protrusion. Accordingly, physical examinations were performed and CT scan arranged which revealed primary canal stenosis in the lumbar spine, which appears most marked at L3 and L4 vertebral level. There are superimposed disc bulges at L2/3, L3/4 and L4/5 levels. Overall, there is mild narrowing of spinal canal at L2/3 and moderate narrowing of spinal canal at L3/4 and L4/5 levels.
…
[By reason of Mr. Shabab’s back injury alone], repetitive bending, stooping, pushing or pulling, prolonged standing and sitting will aggravate his symptoms …
I beli[e]ve he will not be able to perform his pre-injury duties as an abattoir [worker].
...
… he has no capacity [to work as a packer, product assembler or forklift driver] … .”[98]
[98]Exhibit P1, pages 85-87
45 The report of Ms Samantha Teo, physiotherapist, dated 23 August 2017, includes the following observations:
“Auoob reports ongoing constant pain across his lower back and numbness down the lateral on the left leg to the ankle. He also has pain down the lateral of R leg to the knee only. Both pain intensity remains the same. His back pain is slightly better than last year but he still finds it debilitating….He reports that he is now able to walk up to 15 minutes limited by his back and leg pain. He can only sit for 15- 20 minutes [limited] by back pain. He struggles to sleep at night and relies on Lyrica and Mobic to minimise his pain. His MRI scan (10/11/2016) revealed that he has R sided L5 spondylosis with minor spinal canal narrowing at L3-L5. This is consistent with his bilateral leg symptoms.
… His diagnosis is L3-L5 spondylosis and Lx stenosis ...
Based on his physical status, he will not be able to return to his pre-injury employment. He will however be able to do some modified duties. He is not allowed to carry more than 4kg, not to do prolonged sitting or standing for more than 20 minutes. He is not allowed to twist, push or pull using his back.”[99]
[99]Exhibit P1, page 49
46 In his report dated 16 November 2018,[100] Mr Mohammed Awad, neurosurgeon, recorded the following matters in relation to the plaintiff:
[100]Exhibit P1, page 54
“Current symptoms
…
1. Ongoing constant lower back pain. He describes this as anywhere between 7-10/10. When the pain is severe he cannot mobilise. He has a maximum walking time now of 10 to 15 minutes. He continues to have very poor sleep and he is sleeping on a hard bed … to aide his sleep.
2. Bilateral leg pain. The left remains worse than the right. The right leg pain comes on after a period of 5 to 10 minutes of mobilisation. He continues to have numbness in his left leg.
Current treatments
His current treatment regimen has increased markedly since I have last seen him and is now as follows:
1. Pregabalin 300 mg once a day, omeprazole daily, mirtazapine daily, a sleeping tablet of unknown origin daily, amitriptyline daily, celecoxib daily and naproxen daily.
2. Very short daily walks now as he is struggling to mobilise due to pain.
3. Self-swimming and hydrotherapy on a daily basis.…” [101]
[101] Exhibit P1, page 54
Work capacity
In his current state, he does not have the physical capacity to undertake his pre-injury employment. In my opinion, he actually does not have the capacity to undertake alternative employment taking into account his age, education, training, skills, work experience, very limited English and the nature and severity of his work-related lumbar spine condition. His incapacity for work in my opinion is looking long-term.
…
His condition is consistent with the stated cause and his employment has most likely been a significant contributing factor to aggravation of his lumbar spondylosis.
Taking into consideration his back injury alone, he is currently not fit for his pre-injury employment and in my opinion not fit for any alternate light duties. Please see section marked Work Capacity above.
He necessitates further treatments in the form of an opinion from a spinal treating physician as to whether any decompressive surgery +/- fusion may be of benefit to him.
Prognosis in my opinion is such that he is likely to continue with ongoing pain and disability into the ... future.”
47 In his report dated 26 November 2018, Dr Slesenger, occupational physician, stated, in relation to pain and suffering:
“Mr Shabab advised that despite treatment, his symptoms persist with ongoing severe lower back pain that is both dull and sharp in character with similar symptoms into the left leg. He advised that the pain is radiating up into his mid back to the intrascapular (sic) area. He advised that symptoms have deteriorated since the injury.
PSYCHOLOGICAL IMPAIRMENT
Mr Shabab has had depression, anxiety and sleep disorder and he is being seen by both a psychiatrist and a psychologist … .”[102]
[102]Exhibit P1, page 64
48 In relation to current capacity for work, Dr Slesenger said:
“… based on the residual organic impairment alone, he could not return to unrestricted pre-injury duties.
With regard to alternative duties, this is more difficult to assess. I am of the opinion that he retains capacity for work with restrictions, namely:
• No push, pull, carry or lift over 5 kg.
• No repetitive bending and twisting.
• No prolonged static postures.
• No exposure to whole body vibration.
• 4 hours a day, 4 days per week.”[103][103]Exhibit P1, page 73
Medical evidence regarding psychological injury
49 In his report dated 5 February 2019, Dr Tahmasebi, the plaintiff’s general practitioner, addressed his present psychological impairment in the following manner:
“Mr Shabab came to Australia as a refugee and he has a history of PTSD. However, his chronic lower back pain caused developing of depression and aggravating of his anxiety symptoms.
…
… [he is now] complaining of low mood, sleep problem[s], low motivation, poor memory and concentration [and] stress …
…
He [was] also referred to [a] psychiatrist and psychologist to address his mental condition …
… he requires to have regular counselling with [a] psychologist and also assessment and review with [a psychiatrist] as needed …
[as a consequence of Mr Shabab’s psychiatric condition on its own] the patient has no capacity for suitable employment …
… his symptoms and capacity [are] likely to be permanent or last for the foreseeable future … .”[104]
[104]Exhibit P1, pages 86-87
50 In a report dated 29 November 2018, Dr Nicholas Ingram, consultant psychiatrist, diagnosed the plaintiff as suffering from “Chronic Adjustment Disorder with Depressed Mood,” which he thought was “a secondary consequence of his pain”.[105] As to the plaintiff’s capacity for work, Dr Ingram stated:
“… if it is accepted that his pain is related to his work, then his depression is related to his work.”
…
“Mr Shabab is limited in working because of his pain. If he could find something he could do from a physical perspective however, he may be able to work part-time from a psychological perspective, though I doubt he could work fulltime because of the effect that his depression has on his motivation, concentration and energy levels.”[106]
[105]Exhibit P1, page 78
[106]Exhibit P1, page 78
51 In his report dated 31 January 2019, Mr Martin Axelsson, psychologist, said that the plaintiff “fulfilled the diagnostic criteria for Adjustment Disorder with Anxiety and Depressed Mood”.[107] In relation to the plaintiff’s work capacity, Mr Axelsson said
“His psychological symptoms do not represent a pre-existing condition and are [a] direct result of his workplace injury in or about January 2016. The continued experience of these symptoms fulfil the criteria for ‘persistent’.
In my opinion, while Auoob has the experience to perform the role he was in before his injury, however his psychological condition would make it impossible for him to succeed with this role or any similar. As noted his deficits [in] concentration and memory … would make carrying out required tasks very difficult. His social withdrawal, fatigue, loss of energy, lack of motivation, irritation and anger would make working in this role or any other type of employment impossible for the foreseeable future.”[108]
[107]Exhibit P1, page 82
[108]Exhibit P1, page 82
52 Under cross-examination, Mr Axelsson said:
(a) that symptoms of PTSD such as depression, anxiety and stress can overlap and be attributable to more than one condition;[109]
[109]T86, lines 17-25
(b) the assessment of which symptom is produced by which ailment is based on the history provided by the patient, together with professional assessments conducted by the practitioner;[110]
[110]T87, lines 3-13
(c) in his professional assessment, the plaintiff satisfied the criteria for suffering PTSD arising out of his past experience of persecution in Iran.[111] The link in the relevant symptoms was reported to Mr Axelsson by the plaintiff;[112]
[111]T92, lines 15-23; see also T93, lines 24-31
[112]T95-96
(d) it is his view that the plaintiff’s PTSD does not interfere with his ability to work. He formed that view because the plaintiff was initially able to work when he was suffering from PTSD:
“… the only time he wasn’t able to work was after the workplace injury and the … chronic pain adjustment disorder.”[113]
[113]T96, lines 19-31
(e) the fact that the plaintiff only worked for about three weeks prior to sustaining his workplace injury did not change Dr Axelsson’s view, since:
“… even for that period of time its indicating…he’s got the ability to work and it’s the injury that took place and the chronic pain experience that…resulted in the depression and anxiety, that has impacted on his ability to work following that…it wasn’t a debilitating presentation…it was there in the background.”[114]
[114]T97, lines 19-24; T98, lines 5-9
(f) there were times when Mr Axelsson discussed with the plaintiff his stress and anxiety in relation to the uncertainty of his visa status and having to go back to Iran, but that the “predominant presentation was in relation to the adjustment disorder” arising out of the workplace injury;[115]
[115]T98, lines 16-28
(g) while the plaintiff’s stressors were “multifactorial… it doesn’t mean they’re all allocated ... equal significance … .”[116]
(h) The plaintiff’s disturbed sleep was related to the pain in his back: “he was explicit in stating that he was having trouble sleeping because of the pain experienced”.[117]
[116]T99-100; see also evidence at T101, lines 19-31
[117]T103, lines 14-21
53 The defendant relied upon a medical report from Dr Ashok Kumar Singh dated 30 August 2018. While Dr Singh diagnoses the plaintiff as suffering from an Adjustment Disorder with Mild Depression and Mild Anxiety, as set out at paragraphs 39-40 above, he links the onset of this illness with the plaintiff’s issues arising out of his refugee status, leaving his family in Iran and the issues that have arisen with his immigration status in Australia since that time. The plaintiff’s workplace injury to his lumbar spine is not recorded as an issue, which the plaintiff raised with Dr Singh.[118]
[118]Exhibit P1, pages 165-166
The issues
The Plaintiff’s credit
54 The plaintiff was questioned closely in relation to matters affecting his credit during the hearing. Counsel for the defendant pressed the plaintiff during cross-examination about the accuracy of matters referred to in his affidavits and also the various doctors’ reports. In addition, as referred to above, the plaintiff was questioned at length about perceived anomalies in his bank account, the circumstances in which he bought and sold particular cars and his attendances at Crown Casino. Despite extensive cross-examination in relation to each issue, it was clear that the plaintiff had reasonable explanations in relation to each of these issues, the documentary evidence in relation to which was consistent with the verbal explanation he had given previously.
55 Several short pieces of film of the plaintiff engaging in day-to-day activities was produced, but showed no activity that exceeded the limitations which were said by the doctors to be appropriate, given the plaintiff’s present physical restrictions.[119]
[119]Exhibit D2, pages 56-57, per Dr Yong
56 To the extent that one piece of film appeared to show the plaintiff engaging in much less restricted movement than he had demonstrated during an examination by Dr Yong (which had taken place only minutes earlier), the plaintiff explained:
“When I am outside and when I want to turn…it is different to the time that the doctor says “Stand and don’t move your feet” and then try to rotate. This situation is entirely different to when I am outside.”[120]
[120]T59, lines 3-10
57 The plaintiff went on to say, under cross examination:
MS GLASS:
Q:“I suggest to you that your ability to rotate your spine when you’re standing still in a doctor’s room or outside moving freely is exactly the same?---
A:Yes, when there is something on the floor, for example, I can kneel and (indistinct), but the situation is different to when I’m at the doctor’s office and they say don’t bend your knee, how much can you bend forward …”[121]
[121]T59, lines 11-17
…
HER HONOUR:
Q:When Dr Young (sic) was asking you to perform movements, whether it be bending or twisting, whatever it might be. Was it your understanding he was asking you how much you could do without pain?---
A:Do you mean the rotational movement?
HER HONOUR:
Q: Take that as an example?---
A:He doesn’t say rotate, he holds my body and rotates me until I say that I have pain or I am not in pain. And other doctors also do pretty much the same.
HER HONOUR:
Q:All right, so he asked you to tell him when you started to feel the pain?---
A:Yes.
HER HONOUR:
Q:I see, and what you’re saying to me and to Ms Glass is when you’re outside the clinic and you can move more, it’s because you are doing it with pain?---
A:Yes, yes, (indistinct) when I’m outside [I’m] more comfortable when I do the movement.
HER HONOUR:
Q:So it is both things, in other words more comfortable because you’re not being twisted by another person also [you’re doing it] with pain?---
A:When I want to rotate, for example, I can release my other leg and do that…And when I with doctor and say turn, I turn, but I did turn now and I was in pain.”[122]
[122]T60, lines 1-19
58 The plaintiff also gave evidence that in the film he was wearing a spinal support belt which makes it easier for him to move, although the movements are still with pain.[123]
[123]T60, lines 24-31
59 Dr Awad was asked to comment in relation to the activities which he saw the plaintiff undertake during the period of surveillance, and made the following comment:
“Of note, I have reviewed the imaging dated 23 September, 2016 and also the surveillance imaging dated 23 May, 2017. These images and surveillance tapes should be taken into consideration of the patient's symptoms on the day and medications taken. None of the surveillance alters my opinion in anyway.”[124]
[124]Exhibit P1, page 56
60 The defendant’s medico-legal experts were also asked to comment on the significance of the plaintiff’s presentation in the surveillance footage, viz:
(a) Dr Brazenor was scathing in his criticism of the plaintiff, saying that his presentation in the consulting rooms “was a far cry from the vigorous gait and short periods of jogging that I saw on this video footage”;[125]
[125]See report of Dr Graeme Brazenor dated 28 November 2018, exhibit D1, page 72
(b) In his report dated 6 August 2018, Dr Yong, for the defendant, commented:
“The worker’s presentation on the surveillance film appears to show a man who moved more in an unrestricted manner, compared to when being formally assessed in the consulting room. During the footage, the range of movement of the spine was greater than when being formally assessed. He was able to briefly jog and run. This would suggest an increase in function compared to during the consultation.”
However, Dr Yong continued:
“I do note that the actions viewed in the footage did not exceed the recommended restrictions above, … For example, there was no demonstration of handling tasks in excess of the recommended weight restriction. In addition, there were no actions viewed exceeding any of the other restrictions. Therefore the recommended restrictions described would still be considered currently suitable … .”[126]
[126]Exhibit D1, pages 56-57
61 There is no doubt that the plaintiff appeared to move fairly freely in the surveillance footage. Having viewed the footage myself, I find that nothing in the surveillance footage constitutes the plaintiff walking with a “vigorous gait,” “running” or even “jogging” in any sporting sense. What I observed was small bursts of a shuffling jog in the context of what the plaintiff described as being asked by a sales assistant or bank teller to hurry to retrieve some papers from his car. I accept the plaintiff’s evidence and find that while he was undertaking the activities in the surveillance footage, he was doing so with pain, as part of the necessary activities of his everyday life. In relation to this, I find that the plaintiff is somewhat stoic in the way in which he continues to try to live his life, despite the pain that he experiences.
62 Having had the benefit of observing the plaintiff while he was giving evidence to the Court, I formed the view that he was a co-operative witness who appeared to be doing his best to give accurate responses to the questions asked of him. During cross-examination, he gave his evidence openly and without embellishment. At times, as referred to above, he made concessions which were disadvantageous to his case. He did not quibble or prevaricate in relation these matters.
63 Furthermore, I find that the plaintiff's account of events has remained consistent throughout the period during which he has seen his treating medical practitioners, consulted with the medico-legal assessors and provided evidence to this Court. To the extent that inconsistencies were noted in various pieces of documentation or omissions were made from the plaintiff’s affidavit, for example as to his adverse experiences in Iran, it was my observation that these issues arose at least in part, due to language difficulties and cultural misunderstandings.
64 After a consideration of all the evidence and in particular, the evidence of the plaintiff, I consider that he was a credible witness, in the sense of being a truthful person. At no time did I gain the impression that he was attempting to mislead the Court, or exaggerate his symptoms.
Compensable injury
65 The details and occurrence of the incident are not in dispute.
66 Apart from questioning the plaintiff’s credit, the defendant submitted that there is an issue as to whether and to what extent the pain and suffering consequences alleged by the plaintiff have a “substantial organic basis”.[127]This is also relevant to an assessment of the plaintiff’s loss of earning capacity. The key to this analysis lies in the medical reports tendered into evidence.
[127]Meadows v Lichmore [2013] VSCA 201 at [21]-[24] per Maxwell ACJ; Fokasv Staff Australia Pty Ltd [2013] VSCA 230; Victorian WorkCover Authority v Nguyen [2016] VSCA 284
67 It is well established that in serious injury applications where this issue is raised, a two-step process of analysis should be adopted.[128] As mentioned above, the first is to ask whether there is a substantial organic basis for the relevant consequences relied upon. If the answer to that question is in the affirmative, and if the relevant consequences satisfy the statutory criterion, then the application will succeed without the need for any “disentangling” of the physical versus the psychological contributions to those consequences.[129]
[128]Meadows (ibid) at paragraph [21]
[129]Meadows (ibid) at paragraph [21]
Substantial organic basis
68 Each of the doctors who treated the plaintiff’s lumbar spine gave opinions that this injury is persistent and organic in origin:
(a) on 5 February 2019, Dr Tahmasebi, the plaintiff’s general practitioner, reported that the plaintiff’s diagnosis is:
“Primary canal stenosis in the lumbar spine … most marked at L3 and L4 vertebral level. There are superimposed disc bulges at L2/3, L3/4 and L4/5 levels. Overall, there is mild narrowing of [the] spinal canal at L2/3 … .”[130]
(b) on 23 August 2017, Ms Samantha Teo, physiotherapist, reported that the plaintiff’s diagnosis is “L3-L5 spondylosis and Lx stenosis”.[131]
[130]Exhibit P1, pages 85-86
[131]Exhibit P1, page 49
69 The plaintiff’s medico-legal experts were of the same opinion:
(a) on 16 November 2018, Mr Mohammed Awad, neurosurgeon and spinal surgeon, diagnosed the plaintiff as suffering from:
“Aggravation of lumbar spondylosis with ongoing pain”[132]
and
“Intermittent bilateral sciatica likely secondary to canal stenosis at L3/4.”[133]
(b) on 26 November 2018, Dr Joseph Slesenger diagnosed the plaintiff as suffering from “mechanical injury to the lumbar spine”, “aggravation of degenerative disease of the lumbar spine” and “chronic lower back pain”.[134] While Dr Slesenger thought that there was a “significant psychogenic element to Mr Shabab’s presentation,” he nevertheless concluded that by reason of the organic component of his injury alone, the plaintiff ought be subject to significant work restrictions, both in relation to dynamic activities involving lifting, pushing, pulling, bending and twisting and also in relation to how long he could feasibly spend at work, namely no more than 4 hours per day, four days per week. On that basis, it is clear that Dr Slesenger’s opinion is that there is a substantial organic basis to the plaintiff’s presentation.
[132]Exhibit P1, page 55
[133]Exhibit P1, page 55
[134]Exhibit P1, page 72
70 The defendant’s medico-legal experts gave the following opinions:
(a) in his report dated 23 July 2018, Dr Dominic Yong, a specialist occupational physician, stated that the plaintiff –
“… is likely to have had initially a lumber discal injury … .”[135]
[135]ExhibitD1, page 48
He noted that the plaintiff’s description of the work tasks he was performing at the time of the incident –
“… would be a reasonable mechanism of injury leading to the onset of his condition. Therefore his employment has been a significant contributing factor to the onset of the injury … .”[136]
[136]ExhibitD1, page 51
In addition, and consistent with the opinion of Dr Slesenger, Dr Yong was of the opinion that the plaintiff ought be subject to significant work restrictions by reason of the injury to his lumbar spine;[137]
[137]ExhibitD1, page 52
(b) in his report dated 27 July 2018, Dr Graeme Brazenor, neurosurgeon, said that:
“On the basis of [the] two scans that I have seen … on the balance of probabilities Mr Shabab suffered injury to the L4/5 disc annulus in January 2016 in the course of his duties …”.[138]
[138]ExhibitD1, page 67-68
He said that the –
“… mechanism of injury postulated would seem to be bending and lifting in the course of Mr Shabab’s duties in January 2016.”[139]
[139]ExhibitD1, page 69
He thought that “this is plausible”.[140]
I note that Dr Brazenor expressed the opinion that the plaintiff has “largely recovered” from his injury “by the process of natural healing,”[141] although Dr Brazenor did accept that the plaintiff ought be subject to ongoing work restrictions by reason of his original injury.[142] I note that Dr Brazenor’s opinion was based upon his assessment of the 2016 imaging and reports thereof.[143] It is clear from the substance of his report that he was not in possession of the reports containing the opinions of Dr Yong, Mr Awad or Dr Slesenger as to ongoing nature of the plaintiff’s current presentation.
[140]ExhibitD1, page 69
[141]ExhibitD1, page 68
[142]ExhibitD1, page 72
[143]ExhibitD1, pages 64 and 67
71 Each of the plaintiff’s treaters found a substantial organic basis for the consequences of the plaintiff’s injury to his lumbar spine. To the extent that the defendant’s medico-legal opinions raise doubt about the cause of the plaintiff’s current symptoms, I prefer the evidence of the plaintiff’s treating doctors, with whom the plaintiff’s medico-legal experts are in agreement.
72 On the basis of the opinions set out above, the weight of the evidence satisfies me that the consequences of the plaintiff’s injury to his lumbar spine, have a substantial organic basis.
Is the compensable injury permanent for the purposes of the Act?
73 Having considered the relevant reports from Ms Teo,[144] Mr Awad[145] and Dr Slesenger,[146] I find that the plaintiff is likely to continue to suffer from symptoms in his lumbar spine for the foreseeable future. Thus, I find that the injuries sustained by the plaintiff in the incident are permanent for the purpose of the Act.
Is there a need to disentangle consequences suffered by the Plaintiff which are psychological in nature, from the physical consequences of her injuries?
[144]Exhibit P1, page 49
[145]Exhibit P1, page 55
[146]Exhibit P1, page 74
74 As set out above, Counsel for the defendant submitted that in this case, there is a need to disentangle the plaintiff’s physical consequences from the psychological consequences suffered by him.
75 The plaintiff bears the burden of proof in any disentangling exercise which needs to be undertaken.
76 I have accepted that there is a substantial organic basis for the physical consequences of the injury to the plaintiff’s lumbar spine.
77 Applying the principles set out above, no further disentangling needs to be undertaken. The only matter left to decide is whether the physical consequences of that injury produce a sufficient degree of impairment to satisfy the relevant test under the Act.
Conclusions as to economic loss
78 It was agreed as between the parties that the plaintiff’s pre-injury earning capacity was $739 per week.[147] Pursuant to s325(2)(f), it was submitted that a fair assessment of the plaintiff’s “without injury” earning capacity (relying upon a 3 per cent yearly wage increase) was $41,964 per annum, or $807 gross per week. The defendant did not take issue with this approach to the calculation.[148]
[147]T183-185; see Worker’s Claim Form at page 32, exhibit P1
[148]See discussion regarding analysis of economic loss during closing address for defendant: T159-163 See also reply to closing address for plaintiff, T185-186
79 On the basis of a vocational assessment report from Recovre, dated 10 August 2018 and relied upon by the defendant,[149] it was postulated that based upon his education, work history and transferable skills, the following work options were suitable for the plaintiff to consider:
[149]Exhibit D1, pages 73-106, specifically at page 105
(a) packer;
(b) product assembler; and
(c) forklift driver.
80 I have referred above to the medical and other expert evidence replied upon by the plaintiff in support of his submission that he has no capacity for his pre-injury duties and significant restrictions in relation to any other suitable employment. I note that some of the defendant’s medical evidence is to similar effect, viz:
(a) Dr Dominic Yong stated:
“Taking into account the following factors related to Mr Shabab’s back condition:
· Current diagnosis.
· Current functional capacity.
· Clinical course since the last review.
· Requirement to participate in an activity-based recovery program.
Mr Shabab could perform tasks within the following restrictions:
· Avoid repeated bending and twisting of the back.
· Avoid repeated firm pushing and pulling tasks.
· Avoid lifting more than 5 kg on a repeated basis.
· Vary posture regularly between sitting, standing .and walking.
· Reduction in working hours.
Mr Shabab described the nature of his pre-injury role.
He described handling meat into tubs. He described firm pushing and pulling actions when pushing the tub. He described bending actions as part of the role.
This pre-injury role would exceed the recommended restrictions, and thus he does not have a current capacity to work his pre-injury duties and hours.
This incapacity to work these duties would also be present at an alternate employer, workplace or environment.”[150]
[150]Exhibit D1, page 52
(b) in his report dated 26 November 2018, Dr Yong opined that as described in his instructions, a job as a packer may be suitable alternative employment for the plaintiff. He did not think that a job as a product assembler would be suitable. He was unable to provide an opinion as to whether a job as a forklift driver would generally be suitable, saying that any particular role would need to be individually assessed;[151]
[151]Exhibit D1, page 1
(c) Dr Graeme Brazenor stated that, from an orthopaedic point of view:
“I believe that Mr Shabab could begin work full-time and be expected to work to normal retiring age as a product assembler at a bench or conveyor belt where he did not have to bend repeatedly at the waist, or as a forklift driver where he did not also have to bend at the waist in picking and packing. I would not recommend the position of packer, insofar as there is far too much bending at the waist for somebody who has indeed had a documented disc injury in the past, now healed.”[152]
[152]Exhibit D1, page 72
(d) neither medico-legal expert relied upon by the defendant addressed the practical barriers facing the plaintiff in relation to rehabilitation and retraining, nor in relation to his concentration and memory issues, save that Dr Yong thought that the need for the plaintiff to participate in an “activity-based recovery program” needed to be taken into account in assessing the plaintiff’s capacity for work;
(e) as set out above, Dr Slesenger thought that the plaintiff had a residual work capacity of a maximum of 4 hours, four days per week with significant restrictions.[153] Dr Slesenger did not address the practical barriers facing the plaintiff which I have referred to above;
[153]Exhibit P1, page 73
(f) by comparison, Mr Awad specifically grappled with this issue. Taking Mr Awad’s opinion in relation to the plaintiff’s current capacity for work at its highest, he said that the plaintiff “would potentially be fit for alternative light duties in the form of a maximum of two to three hours per day for a maximum of two to three days per week …”.[154] This opinion is clearly to be qualified by the observations made by Mr Awad in relation to the other factors which in a practical sense limit the plaintiff’s theoretical physical capacity for work, viz:
“In his current state, he does not have the physical capacity to undertake his pre-injury employment. In my opinion, he actually does not have the capacity to undertake alternative employment taking into account his age, education, training, skills, work experience, very limited English and the nature and severity of his work-related lumbar spine condition … .”[155]
[154]Exhibit P1, page 60
[155]Exhibit P1, page 55
81 On the basis of the opinions set out above, the weight of the evidence satisfies me that the consequences of the plaintiff’s injury to his lumbar spine have resulted in the plaintiff being unfit for both his pre-injury duties and indeed, for any alternative employment.
82 Even if I am wrong in relation to this conclusion, it is clear that put at its highest, the maximum postulated work capacity retained by the plaintiff[156] would see him earn no more than $408 gross per week as a product assembler[157] - a figure which on any view does not reach the threshold of 60 per cent of either the plaintiff’s pre-injury earnings ($739 gross per week) or the figure which I accept most fairly represents the plaintiff’s “without injury” earning capacity ($807 gross per week).
[156]Four hours per day, four days per week: see the opinion of Dr Slesenger, exhibit P1, page 73
[157]Being the suggested suitable employment with the highest hourly rate: $25.50 per hour – see Recovre report Exhibit D1, page 84 – although note that Dr Yong did not think that the plaintiff would be able to cope with this type of employment
83 I am also required to consider issues of retraining and rehabilitation pursuant to s325(g) of the Act.
84 In light of my findings as to the plaintiff’s impairment and his incapacity for employment, I am satisfied that there is no rehabilitation or retraining that would be appropriate to be undertaken by the plaintiff which would alter the fact that he has a permanent loss of earning capacity of 40 per cent or more. As rehabilitation and retraining have nothing to offer the plaintiff in terms of his capacity for employment, the plaintiff has satisfied the requirements of s325(g) of the Act.
85 Accordingly, I grant leave to the plaintiff to bring proceedings for damages in respect of both pain and suffering and loss of earning capacity.
Psychological injury
86 Having decided to grant leave to the plaintiff as set out above, I am not required to decide whether the plaintiff has suffered a permanent severe mental or permanent severe behavioural disturbance as referred to in the Act.[158]
[158]See Georgopoulos v Silaforts Painting Pty Ltd & Ors [2012] VSCA 179; in particular, see paragraphs [106]-[109]
Conclusion
87 Accordingly, pursuant to s335 of the Act, I grant leave to the plaintiff to bring proceedings for damages for pain and suffering and loss of earning capacity in respect of the injury that he suffered to his lumbar spine in the course of his employment with the employer and while conducting work at the premises of JBS Australia Pty Ltd, from on or about 6 January 2016 until about 6 February 2016.
88 I will hear the parties on the issue of costs.
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