Sharif v VWA

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-23-03118

Shamshad Sharif	Plaintiff
v
Victorian WorkCover Authority	Defendant

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JUDGE:	HIS HONOUR JUDGE GINNANE
WHERE HELD:	Melbourne
DATE OF HEARING:	8 & 9 February 2024, 19 March 2024
DATE OF JUDGMENT:	25 October 2024
CASE MAY BE CITED AS:	Sharif v VWA
MEDIUM NEUTRAL CITATION:	[2024] VCC 1662

REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords:              Serious injury application – pain and suffering – loss of earning capacity
Legislation Cited:      Workplace Injury Rehabilitation and Compensation Act 2013 (Vic)
Cases Cited:Ansett Australia Pty Ltd v Taylor [2006] VSCA 171; Barwon Spinners Pty Ltd & OrsvPodolak (2005) 14 VR 622; Dwyerv Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Elias-Mikre v Royal Melbourne Hospital [2013] VCC 1860; Haden Engineering Pty Ltd v McKinnon (2010) 21 VR 1; HuntervTransport Accident Commission & Avalanche [2005] VSCA 1; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Meadows v Lichmore [2013] VSCA 201; Noori v Topaz Fine Foods Pty Ltd [2018] VSCA 323; Sabo v George Weston Foods [2009] VSCA 242; Stijepic v One Force Group Australia Pty Ltd [2009] VSCA 181; TTB SMS Pty Ltd v Reading [2020] VSCA 203; VWA v Nguyen [2016] VSCA 284.
Judgment:                  Application granted.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms J Zhu	Zaparas Lawyers
For the Defendant	Mr P.D Elliott KC Ms L Burke	Russell Kennedy

HIS HONOUR:

Introduction
1In support of his application for the grant of a serious injury certificate for pain and suffering and loss of earnings, the plaintiff relies upon a permanent serious impairment to the spine by way of a loss of function of his head, neck, right shoulder and or a severe or permanent behavioural disturbance or disorder in the form of anxiety and/or depression.
2The particulars of injury relied upon are:
(a) Permanent serious impairment or loss of function of his head, neck, right shoulder, and spine.
or
(c)permanent severe mental or permanent severe behavioural disturbance or disorder including but not limited to development of anxiety and/or depression.[1]
[1]Exhibit P1, Plaintiff Court Book (“PCB”) 12.

3Ms Zhu of counsel appeared for the plaintiff.
4The defendant was represented by Mr Elliott KC, together with Ms Burke of counsel. In opposing the application, the defendant contended that the plaintiff is, to coin a phrase, a fabulist, so far as the extent of his impairment consequences whether physically or mentally are concerned. Allied to this, the defendant submitted that the plaintiff’s workplace injury was no greater than soft tissue injuries, with the preponderance of medical evidence suggesting that these have resolved.

Legal Principles

5The definition of “serious injury” contained in section 325(1) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) reads:
“Serious injury” means –
(a) permanent serious impairment or loss of a body function; or
…
(c) permanent severe mental or permanent severe behavioural disturbance or disorder…

6The Court must not give leave to commence common law proceedings unless it is satisfied, on the balance of probabilities, that the “injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in section 325(1) of the Act.[2]
[2] Section 335(5) of the Act.
7To establish serious injury, the plaintiff must prove, on the balance of probabilities, that:
“the injury” suffered by him arose out of, or in the course of, or due to the nature of employment;[3]
[3] Section 327 of the Act; see also Barwon Spinners Pty Ltd & OrsvPodolak (2005) 14 VR 622 (‘Barwon’).

“the injury” and resulting impairment must be “permanent” – that is, permanent in the sense that it is “likely to last for the foreseeable future”;[4]
the “consequences” of the impairment in relation to “pain and suffering” must be “serious” – that is, the impairment or loss of body function “when judged by comparison with other cases in the range of possible impairments … may be fairly described as being more than significant or marked, and as being at least very considerable”.[5]
[4] Barwon (2005) 14 VR 622, 638 [33].
[5] Section 325(2)(c) of the Act.
8The requirement to satisfy these elements is sometimes referred to as the “narrative test.”
9In determining the “consequences” of the injury, the Court is required to consider them as they affect this plaintiff, viewed objectively, arising from his injury and according to an assessment of range of like impairments.
10In determining the application the Court:
must not take into account psychological or psychiatric consequences of “the injury” for the purposes of paragraph (a) of the definition of “serious injury” – these can only be taken into account for the purposes of paragraph (c) of the definition of “serious injury”;[6]
must assess whether “the injury” is a “serious injury” as at the time the application is heard;[7]
must give reasons that disclose the pathway of reasoning in dealing with the evidence and issues raised by the application;[8]
[6] Section 325(2)(h) of the Act.
[7] Section 325(2)(j) of the Act.
[8] See generally HuntervTransport Accident Commission & Avalanche [2005] VSCA 1, [23]-[26].

11In TTB SMS Pty Ltd v Reading,[9] Tate and T Forrest JJA had occasion to emphasise the essential aspects to which consideration is to be given on a serious injury application in a pain and suffering case, and these are:
(a)   serious injury means permanent serious impairment or loss of a body function;[10]
(b)   an impairment shall not be held to be serious unless the pain and suffering consequence is, when judged by comparison with other cases in the range of possible impairments or losses of a body function, fairly described as being more than significant or marked, and as being at least very considerable;[11]
(c)   in assessing the seriousness of the claimed impairment consequences, a Court is required to consider both the effects of the impairment and those aspects of the affected body function which remain unaffected.[12]
[9] [2020] VSCA 203.
[10] Section 325 of the Act.
[11]Section 325 of the Act. This formulation picked up the language in Humphries, which concerned similar provisions in the Transport Accident Act 1986.
[12]Dwyerv Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 (“Dwyer (No 2)”), [27] per Ashley JA; Stijepic v One Force Group Australia Pty Ltd [2009] VSCA 181 (“Stijepic”), [44] per Ashley JA and Beach AJA; Tatiara Wheat Co Pty Ltd v Kelso [2010] VSCA 12, [77] per Ross AJA, quoting Dwyer [2008] VSCA 260, [27]).
Permanent Loss of Earnings
12In addition to his claim brought pursuant to paragraph (a) and (c) of the definition of serious injury, the plaintiff alleges that he has suffered a permanent loss of earning capacity of 40 per cent or more. When a plaintiff asserts he has suffered a serious injury by reference to a loss of earning capacity, the additional threshold he must prove is that at the date of the decision:
(a)   he has sustained a loss of earning capacity of 40 per cent or more; and
(b)   he will, after the date of the decision, continue permanently to have a loss of earning capacity which produces a financial loss of 40 per cent or more.[13]
[13]Section 325(2)(e) of the Act.
13If I am satisfied that the plaintiff has established on the balance of probabilities, that he does not possess a capacity for full-time employment in suitable employment, and that this will continue permanently, then he will have made good a claim for economic loss, so long as I am also satisfied the consequences for him of such a loss are at least very considerable.
14However, the defendant submitted that the plaintiff has a capacity for suitable employment but that in any event he had failed to satisfy the requirement to engage in rehabilitation or retraining in accordance with s 325(2)(g) of the Act, and accordingly, the claim for loss of earnings should fail at least for that reason.

The Documentary Evidence
15The plaintiff tendered 52 exhibits. The exhibits comprised the plaintiff’s affidavits, an affidavit in support from the plaintiff’s wife, claim documents, various radiology, reports from treating practitioners, numerous clinical records, and, of course, medico legal reports.
16The defendant tendered 29 exhibits, consisting of claim documents, medico legal reports, reports from the plaintiff’s treating practitioners, Medical Panel Opinions and Reasons, radiology, surveillance footage and vocational documents.
17In determining the outcome of the application, I have had regard to the plaintiff’s cross-examination and re-examination, and I have read and considered the exhibits that were relied on by the parties, and were addressed by counsel, and are otherwise necessary for me to refer to in order to explain my decision.

The Plaintiff’s Evidence
The First Affidavit affirmed 23 January 2023[14]
[14]Exhibit P2, PCB 14-21.
The Plaintiff
18The plaintiff was born in Afghanistan in January 1986 and it was there that he attended school, as well as in Pakistan, where he completed the equivalent of Year 12 and worked as a machine operator and teacher. He speaks Pashto and some English, but is unable to read or write at all well in English[15].
[15]Although Ms Zhu explained that the plaintiff possessed some level of English comprehension and some capacity to speak in English, an interpreter was available and the parties agreed that it was sensible and more helpful if the plaintiff gave his evidence via the interpreter. That course was followed. The plaintiff gave his oral evidence via an interpreter.
19The plaintiff arrived in Australia in July 2009. He presents with a history that suggests a hardworking man. He worked as a painter for about three months, and as a cheesemaker for much the same amount of time. He has worked as a machine operator, and from about 2011 to approximately 2015, was employed in the security industry on a casual basis.
The Relevant Employment
20The employer manufactured snack foods including potato chips and seafood. The plaintiff was employed on a casual basis as a line worker at its Gembrook factory, working anywhere between about 35 to 50 hours per week. He also drove a forklift. At the date of injury the plaintiff’s earnings were approximately $1,100 gross per week.
The Work Injury
21On 28 January 2016, the plaintiff slipped on a wet floor. He fell backwards landing on his head, back and neck. In fact, the plaintiff said he was rendered unconscious by the fall. He was taken by ambulance to Dandenong Hospital, where he remained as an inpatient for a few days, prior to being discharged home.
22The plaintiff lodged a WorkCover claim for injury. The claim was accepted by the defendant. He remains in receipt of weekly payments.
23He attends doctors at the Berwick Medical Centre and his principal General Practitioners (“GPs”) have been Dr Qasim Hamimi and Dr Said Mirranay, the latter of whom remains his treating general doctor.
Events Since Injury
24The plaintiff said he was referred to Mr Ganaesvaran, a neurologist whom he saw on 9 September 2016. The plaintiff said he saw Joan Foster, a physiotherapist, on 14 November 2016.
25The plaintiff said he was referred to another neurologist Dr Michael Eller, and to a pain specialist, Dr Gavin Weekes as well as a psychiatrist Dr Dulip Dharmage.
26Treatments for the plaintiff’s headaches have included Botox injections and the medications Propranolol, Topiramate, Neurontin and Sandomigram. However, the plaintiff deposed that none of these have worked to alleviate his pain in the long term.
27The plaintiff complains of constant headaches situated on the top of his head, at the front of his head, and around his eyes with accompanying pain varying in its intensity. He experiences pain in his right arm, which at times can feel numb and affects the entirety of his right arm, to the extent that at times he has difficulty raising it.
28The plaintiff says he suffers daily from a burning sensation in the back of his neck, although its intensity varies. His neck feels stiff at times.
29He says he suffers from constant pain in his lower back that is aggravated by cold weather.
30He experiences numbness in his right leg at times.
31He says that on occasions his wife is required to help him with showering and dressing. He said that he cannot undertake house work because of his pain. He is limited to undertaking a little bit of watering in the garden.
32He deposed that his sleep is frequently disturbed because of his headaches and pain, and consequently he feels tired, lethargic and lacks interest in engaging with the world.
33He said that his wife undertakes the majority of driving, because he can only manage short distances due to headaches and pain.
34He struggles to play games with his children because of his headaches and pain. His concentration is short, and he feels his memory is not as good as it was.
35Prior to his injury, the plaintiff said he enjoyed associating with friends from the Afghani community, and playing social games of soccer, volleyball and cricket, which he can no longer do because of his headaches and pain.
36The plaintiff says that his injuries have caused him to experience a depression that has also adversely affected his sleep. He is on edge and worries for his future. He is irritable and can suffer panic attacks and has felt suicidal. He has previously experienced auditory hallucinations and has occasionally heard voices.
37The plaintiff travelled to Afghanistan in 2017. He said he took treatment and medication whilst he was there.
The Second Affidavit affirmed on 14 December 2023[16]
[16]Exhibit P3, PCB 22-26.
38In his second affidavit, the plaintiff deposed that he remains in receipt of weekly payments of compensation.
39Since making his first affidavit, he said he has travelled again to Afghanistan, from about April to June 2023.
40He continues to see GP Dr Mirranay at least once or twice a month, but sometimes more frequently. He remains under the care of his psychiatrist Dr Dharmage, on whom he attends fortnightly.
41His medications are :
·        Brufen 400 mg x 2 per day;
·        Nexium 20 mg;
·        Aripiprazole 40 mg x 1 per day;
·        Venlafaxine 75 mg x 1 daily;
·        Duloxetine 30 mg x 1 per day;
·        Esomeprazole 20 mg x 1 per day;
·        Norgesic x 3 per day; and
·        Quetiapine 50 mg x 1 per day.[17]
[17]        Exhibit P3, PCB 23.
42The plaintiff said he continues to suffer from the headaches, neck pain and pain in his lower back, of the type that he described in his first affidavit.
43He deposed that he remains depressed and has not experienced any improvement, and he continues to encounter reduced concentration and memory. He said he has had episodes of self-harm. He is irritable and suffers panic attacks from time to time. His wife continues to assist him. He does little around the house and he manages small exertions in the garden. He said that his sleep is very poor because of his mental state, but separately because of his physical pain and headaches.[18] His level of driving, and the extent of his activities with his children, and social activities with friends, remains as deposed to in his first affidavit.
[18]Exhibit P3, PCB 25.
44The plaintiff said that he does not believe he can work at all because of his mental state, but separately because of his physical pain.[19]
[19]Ibid.

Affidavit of Mouzan Sharif
45Mrs Sharif is the plaintiff’s wife and she provided an affidavit dated 14 December 2023 in support of his application.[20] She was not required for cross-examination.
[20] Exhibit P4, PCB 27-30.
46Mrs Sharif has been married to the plaintiff for over ten years. They are the parents to three children, aged 5, 6 and 8.
47Mrs Sharif deposed that since the work incident in January 2016, she has observed that her husband has suffered regularly from headaches and severe neck, right shoulder and back pain. According to her observations of her husband, he is depressed a lot of the time, and this adversely impacts his interactions with his family.
48Mrs Sharif said that her husband has expressed frustration at being unable to play with his children freely due to his pain and low mood, and she said the children have learned to accept their father’s condition.
49Mrs Sharif said that often, at least several times a week, she has to assist her husband with showering and dressing. She said bending down to put on socks and shoes can prove difficult for him.
50Mrs Sharif said that prior to his injury, her husband assisted “more around the house with domestic chores like mopping and cleaning etc” however, he has been unable to do much since the injury, without triggering pain.[21] Mrs Sharif said he used to enjoy pottering around their garden but now he does very little, and it is left to her and their children.
[21] Exhibit P4, PCB 28.
51Mrs Sharif deposed that the plaintiff is restless at night due to pain and his sleep is disturbed at least two to four nights per week.
52Mrs Sharif said that driving has become difficult for her husband and she now does most of the local driving. When she is driving for longer periods of time with him as a passenger, she has to stop the car and allow him breaks to rest and to stretch[22].
[22]As will be seen from surveillance, and from the plaintiff’s evidence under cross-examination, he will frequently drive and take and collect his children from school.
53Mrs Sharif described a two month trip to Afghanistan in early 2023 to visit family. She said her husband was in pain after the flight and was unable to interact with family as he had wished to, and he could not participate in planned activities.
54Mrs Sharif corroborated that the plaintiff used to enjoy playing soccer and other ball games with members of the local Afghani community, but no longer can do so, although he will occasionally attend to watch.
55Mrs Sharif deposed that the plaintiff’s memory and concentration appear to her to be much worse than previously, to the extent that if she asks him to do something, he will have forgotten ten minutes later.

Plaintiff’s Medical Evidence
Dr Meena Mittal
56Dr Mittal is a pain specialist from whom a medico legal opinion dated 19 October 2023 was obtained.[23] Dr Mittal was asked to review the plaintiff’s neck pain, headaches and low back pain.
[23] Exhibit P11, PCB 94-101.
57Dr Mittal described extensive treatment undertaken by the plaintiff for his headaches and that he had come under the care of Drs Eller and Ganesvaran. Dr Mittal noted that on 30 May 2018, Dr Weekes diagnosed the plaintiff with “sensitisation and deconditioning with spondylosis.”[24] She recorded that Dr Weekes had requested approval for diagnostic procedures for the lumbar and cervical spine, however, approval was not granted.
[24] Exhibit P11, PCB 95.
58Dr Mittal reported that whilst under the care of his psychiatrist Dr Dharmage, the plaintiff had commenced analgesic and antidepressant medications, and was diagnosed with “major depressive disorder and generalised anxiety disorder associated with chronic pain”.[25] Dr Mittal noted that at one stage, the plaintiff’s depression had been so severe, that he experienced auditory hallucinations. His psychiatric medications included Duloxetine, Amitriptyline and Desvenlafaxine.

[25]        Ibid.
59Dr Mittal recorded that the plaintiff was in receipt of regular analgesic medications, and was having ongoing reviews with his GP and psychiatrist.
60Dr Mittal recited limitations on activities that the plaintiff’s condition imposed, which accounts, I note in passing, is very largely consistent with the matters the plaintiff deposed to in his affidavits.
61On examination, Dr Mittal found the plaintiff’s cervical spine revealed generalised tenderness in the midline and paravertebral spaces, in the mid and lower cervical spine. There was maintenance of normal cervical lordosis. There was evidence of bilateral paravertebral muscle spasm that was worse on the right side, and included right trapezius muscle spasm, with increased tendered points. There was no tenderness over the region of the occipital protuberances.
62Right shoulder examination revealed some restriction that was mostly limited by neck pain, and increased tenderness in the anterior joint line and the acromioclavicular joint region. No muscle wasting was noted and Dr Mittal said there was no evidence of complex regional pain syndrome. Upper limb neurological examination did not reveal evidence of radiculopathy, or peripheral neuropathy.
63Lumbar spine examination revealed maintenance of normal lumbar lordosis. There was bilateral paravertebral muscle spasm, flexion was restricted to 30° and extension restricted to 5°. There was increased tenderness in the paravertebral region in the lower lumbar spine, worse on the right in comparison to the left with right-sided sacroiliac joint tenderness. Facet joint loading bilaterally was positive, and the FABER[26] test was negative.
[26]        Flexion, Abduction, and External Rotation.
64Lower limb neurological examination revealed positive straight leg raise test on the right hand side at 30° limited by low back pain. The plaintiff’s reflexes were bilateral, equal and present. Plantars[27] were down going. There was no weakness or altered sensation noted on examination in his bilateral lower limbs.
[27]        Meaning the plantar reflex.
65Dr Mittal referred to clinical investigations with which she had been supplied.
66Dr Mittal diagnosed the plaintiff as suffering from an exacerbation of pre-existing asymptomatic cervical spondylosis, as well as exacerbation of pre-existing asymptomatic lumbar spondylosis. She commented that the plaintiff’s right shoulder pain, may be referred from the cervical spine.
67Dr Mittal did not consider that the plaintiff had a capacity for suitable employment on a “consistent and reliable basis as a settled an established member of the wage earning workforce without risk of re-injury and deterioration of his symptoms.”[28] She took into account the nature of his underlying condition, the duration of his symptoms, the limited treatment to date, as well as functional limitations he had described. Dr Mittal considered that the plaintiff’s incapacity was permanent, that is to say, lasting into the foreseeable future.
[28]        Exhibit P11, PCB 100.
Dr Eman Awad
68Dr Awad is an occupational therapist, who in a report dated 28 October 2023, provided an opinion in response to matters put to her by the plaintiff’s solicitors.[29] Dr Awad was furnished with a significant volume of clinical and radiological history and she conducted an examination of the plaintiff as part of her remit.
[29]        Exhibit P12, PCB 102-108.
69The symptomology the plaintiff recounted to Dr Awad, consisted of headaches, neck pain, lower back pain, depleted mental health, limited functioning since injury, and impositions in relation to his previous social activities, and that are consistent with the matters deposed to by the plaintiff in his affidavits.
70Dr Awad listed the plaintiff’s medication and treatments.
71Dr Awad said that on examination the plaintiff was observed walking from the waiting room to the consultation room with a non-antalgic gait, although she said he appeared to move slowly. He presented with some tenderness of his cervical spine in the midline, with reduced range of motion and secondary to pain, rather than a restriction of movement. The lumbar spine, however, had a reduced range of motion, specifically in flexion and extension.
72Dr Awad diagnosed the plaintiff with:
1. Aggravation of cervical spondylosis.
2. Aggravation of lumbar spondylosis.
3. Migrainous headaches.
4. Depression and general anxiety disorder with auditory hallucinations.[30]
[30]Exhibit P12, PCB 106.
73As to a work capacity, Dr Awad said the plaintiff lacked capacity for his pre-injury duties and, moreover, he was unlikely to be able to resume any form of employment or successfully return to the workplace. In her opinion, the plaintiff’s “mental health is likely to prevent him from retraining.”[31] Dr Awad said that when considering his somatic focus and poor mental health, she did not believe the plaintiff would realistically be able to undertake any work, reliably and consistently.
[31]Ibid.
74Dr Awad considered the aggravation of the plaintiff’s cervical and lumbar spondylosis to be entirely consistent with his fall. She said his headaches had contributed to his poor mental health, and that the fall was a significant contributing factor to his current condition.
75Dr Awad thought that the plaintiff’s neck and back pain, were secondary to an aggravation of spondylosis and facet joint in origin.
76Dr Awad considered that the plaintiff’s left shoulder injury was radiating from his neck pain.
77Dr Awad regarded the plaintiff’s headaches as most likely migrainous, and therefore, organic with his psychological injuries, a sequelae to each of these injuries.
Dr Said Mirranay
78Dr Mirranay, of Brentwood Park Family Practice, in a report dated 21 May 2019, said that he first saw the plaintiff on 27 August 2018, some two and a half years after the incident of injury. He said the plaintiff presented with multiple issues, including severe daily headaches, neck pain and lower back pain and that prior to the fall, he had described himself as fit and working, and had no issues with headaches, neck and back pain.
79Dr Mirranay provided two further reports to the plaintiff’s solicitors dated 29 March 2023,[32] and 12 October 2023.[33] In his latter report, Dr Mirranay diagnosed the plaintiff with “major depression, chronic headaches likely cervicogenic after the fall, lumbar back pain secondary to lumbar disc bulge, and neck pain secondary to cervical disc bulge and right arm and shoulder pain which is referred pain”.[34]
[32]Exhibit P16, PCB 149-152
[33]Exhibit P17, PCB 135-156.
[34]Exhibit P17, PCB 153.
80Dr Mirranay did not consider the plaintiff had any capacity for suitable employment, and that this state of affairs would continue for the foreseeable future. He said that the plaintiff was not capable of performing recurrent or prolonged bending, recurrent lifting, or prolonged sitting and standing. He noted that the plaintiff possessed limited English, and his only skills were in process work or labouring. He also considered that the plaintiff’s mental health and the multiple medications he was taking, represented barriers to him entering the workforce.
Dr Lester Walton
81Dr Walton, psychiatrist, provided a report to the plaintiff’s solicitors dated 4 January 2018.[35]
[35]Exhibit P10, PCB 88-93.
82Dr Walton observed that Professor Crowe, on whose reporting the defendant in no small measure relies, and whose multiple reporting will be addressed later in these reasons, performed neuropsychological testing on the plaintiff and Dr Walton said that the “validity of the tests which were compromised by so-called ‘functional overlay’ which is an abnormal illness phenomenon amounting to exaggeration but this may be unconscious rather than wilful deceit.”[36] Dr Walton noted Dr Ganesvaran’s diagnosis of migraine and concussion syndrome and concurrent depression.
[36]Exhibit P10, PCB 88.
83Addressing his diagnosis and the nature of the plaintiff’s injury, Dr Walton wrote:
On the basis of the history of actual psychiatric symptoms which Mr Sharif reported, principally a degree of anxiety and depressed mood with some difficulty sleeping and change in appetite, as well as headaches where it seems likely there is a psychogenic component, I am inclined to make a diagnosis of an adjustment disorder, albeit of relatively mild severity.
The clinical picture is complicated by so-called abnormal illness behaviour. It is culturally normal for persons who live in situations of scarce medical resources to objectively overemphasise the nature of their problems in an attempt to secure assistance. This process becomes quite distorted in a place where there are plentiful medical resources such as Australia. It is not a situation of wilful exaggeration or malingering but a largely culturally determined attitude to ill-health problems but it may well lead to over diagnosis and treatment.[37]
[37]        Exhibit P10, PCB 91.
84Dr Walton considered that the plaintiff had suffered “an adverse interaction between his physical problems (mainly headache) and emotional disturbance (anxiety and depression) each tending to amplify and perpetuate the other.”[38] He considered that although the plaintiff did not suffer from any pre-existing psychiatric condition, he could “properly described as a vulnerable individual simply because of being a relatively recent migrant but especially so given the circumstances which surrounded his departure from Afghanistan.”[39] He thought that the plaintiff had sustained a “meaningful psychiatric injury which does relate to the falling incident at work but as a reaction to physical injury rather than a direct response to psychological trauma.”[40]
[38]        Exhibit P10, PCB 92.
[39]        Ibid.
[40]        Ibid.
85Dr Walton did not consider that the plaintiff was suffering from any incapacity for work, or compromise of his ability to perform the normal activities of daily living, from a psychiatric perspective. However, Dr Walton thought that it was likely that as long as the plaintiff “suffers from any symptoms whatsoever, his self-evaluation will be that he is unfit for work.”[41]
[41]        Ibid.
86Dr Walton added, “Usually the combination of minor physical and psychiatric injuries such as afflict Mr Sharif would be time limited, that is, the prognosis should be reasonably favourable but that is far from certain. It is certainly not a situation where I could confidently state that this man is suffering from a permanent psychiatric impairment and incapacity.”[42]
[42]        Exhibit P10, PCB 93.
Dr Gavin Weekes
87Pain specialist, Dr Weekes diagnosed the plaintiff’s lower back injury as causing pain radiating down both lower limbs, and as most likely lumbosacral spondylosis.[43] He considered that the plaintiff’s neck pain that radiated into the shoulders and his head on both sides, was caused by cervicogenic headaches/cervical spondylosis.
[43]Exhibit P26, PCB 174.
Associate Professor Garth Bittar
88Associate Professor Bittar is a neurosurgeon and spinal surgeon. He diagnosed the plaintiff with an aggravation of cervical spondylosis and aggravation of lumbar spondylosis.
89In his report dated 28 July 2017, Associate Professor Bittar said that an MRI of the plaintiff’s brain and the spine dated 6 March 2017, did not demonstrate intracranial abnormalities.[44] He wrote that MRI of the cervical spine demonstrated multilevel facet joint arthropathy and bilateral foraminal stenosis. There was no neural impingement in the thoracic lumbar spine.
[44]Exhibit P18, PCB 157.
Dr Leon Turnbull
90Dr Turnbull is a psychiatrist. Having examined the plaintiff via video link with the assistance of an interpreter, he provided a report to the plaintiff’s solicitors dated 13 November 2023.[45]
[45]Exhibit P13, PCB 109-118.
91Dr Turnbull diagnosed the plaintiff with somatic symptom disorder, which he noted accorded with a diagnosis offered up by a Medical Panel in March 2021, with chronic post-concussion headache, chronic pain syndrome and somatic symptom disorder with predominant pain.
92As part of his review, Dr Turnbull had available a series of reports from Dr Mirranay to the effect that the plaintiff had no capacity for work whether in preinjury duties, or in suitable employment.
93Dr Turnbull said that the consensus from a neurological perspective was that the plaintiff’s early symptoms were consistent with post-concussion syndrome. However, he also commented that a lack of improvement over time was inconsistent with post-concussion syndrome, because it would be expected to improve over a matter of months and certainly over a four year period.
94As to the plaintiff’s physical or musculoskeletal complaints, Dr Turnbull said he could find no mention of lumbar spine problems arising directly from the fall, and that the first mention of back pain he found within the paperwork was more than six months post-injury, and that early reports had referred to neck and right shoulder complaints, although Dr Turnbull said that the plaintiff’s pain was in the right trapezius area, as opposed to the right shoulder.
Dr David Freilich
95Dr David Freilich, neurologist, interviewed and examined the plaintiff on 18 July 2017 and provided a report dated 15 August 2017.[46] Dr Freilich diagnosed the plaintiff to have sustained a head injury of uncertain severity as well as injuries to his neck and back. The plaintiff reported suffering from headaches situated in the occipital lobe and on top of his head. He reported his headaches as constant, present all day and every day, having not improved since the injury.
[46]Exhibit P19, PCB 162-164.
96Dr Freilich reported the plaintiff's neck, bilateral and lumber back pain as also constant but variable in severity. The plaintiff reported that when he wakes in the morning he feels as if he has been stabbed by a knife or burnt in the affected area.
97Upon examination, Dr Freilich found no neurological abnormalities to evidence that he had sustained damage to his brain, spinal cord or spinal nerve roots. Furthermore, an MRI of the plaintiff's brain was normal with no evidence of brain injury. An MRI of the cervical spine exhibited degenerative changes, with the rest of the spinal cord being normal.
98Dr Freilich expressed the opinion that the plaintiff's employment was a significant contributing factor to his injury. Confining his report to the neurological aspect of his condition, Dr Freilich did not believe that the plaintiff had a neurological impairment resulting from his injuries, and that he should be able to return to work.
99Dr Freilich noted that it was a concern that there has been no improvement in the plaintiff's symptoms in the period of 18 months or so which was at odds with what the expected progress following such type of injury. Dr Freilich thought it likely that the plaintiff’s symptoms would continue into the foreseeable future, although not permanent.
Dr Gangadharan Ganesvaran
100The plaintiff was first referred to Dr Ganesvaran neurologist on 9 September 2016, for a review of his several ongoing symptoms since his fall in January 2016. He provided a report dated 9 September 2016.[47]
[47]Exhibit P20, PCB 165-166.
101Upon examination, the plaintiff had a normal range of neck movements. Neurological examination of his cranial nerves, upper limbs and lower limbs did not reveal any focal findings of note, apart from a subjective reduction in sensation in his left arm and leg to light touch, pain and temperature sensation. His tandem gait was normal and his Romberg's test was negative.
102Dr Ganesvaran thought that at least some of the plaintiff's ongoing symptoms may signify an underlying diagnosis of migraine. The plaintiff appeared to have anxiety and low mood, and he thought that he may benefit from review by a psychologist.
103Dr Ganesvaran advised the plaintiff to gradually increase his amitriptyline dose to amitriptyline 20 mg orally nocte regularly. He prescribed sumatriptan 15 mg p.r.n for acute headaches. He believed the plaintiff could recommence driving and a graduated return to work seemed appropriate.
104Dr Ganesvaran examined the plaintiff again on 13 January 2017 and provided a further report dated 13 January 2017.[48] He reported the plaintiff had not experienced any significant improvement in his headaches since his first examination on 9 September 2016. He continued to have low mood and Dr Ganesvaran was unsure if the plaintiff had yet been reviewed by a psychologist.
[48]Exhibit P21, PCB 167.
105Given his lack of improvement, Dr Ganesvaran advised the plaintiff to cease propranolol, and instead commence Sandomigran at an initial dose of 0.5 mg and gradually increasing every 2 weeks. Dr Ganesvaran organised for the plaintiff to undergo an MRI scan of his brain and whole spine because of neck and back pain.
106Dr Ganesvaran suspected the plaintiff's headache was multifactorial and, therefore, advised that treatment of his mood issues would likely help.
107Dr Ganesvaran examined the plaintiff again on 7 April 2017 and in a report 7 April 2017 noted that the plaintiff continued to have ongoing migrainous headaches and which he described as being his principal issue at that time.[49]
[49]        Exhibit P22, PCB 168.
108Dr Ganesvaran proposed an increased dose of Sandomigran to 2 tablets nocte for the next 2 weeks and then to 3 tablets nocte (1.5 mg) if tolerated.
109The MRI scan of the plaintiff's brain and cervical spine did not show any significant abnormalities that would be contributing to the plaintiff's symptoms. Dr Ganesvaran planned on seeing the plaintiff again in 2-3 months to assess progress.
110A further report by Dr Ganesvaran of the plaintiff dated 2 June 2017,[50] again identified how he felt that the plaintiff's headache is multifactorial with probability a migrainous component but influenced by mood issues including depression. Dr Ganesvaran thought it unlikely that post-concussive syndrome represented any significant contribution given the length of time since his original fall.
[50]        Exhibit P23, PCB 169-170.
111Dr Ganesvaran reported that the plaintiff's fitness for work depended on the degree of control of his headache as neurologically he had no deficits. Dr Ganesvaran believed that significant psychiatry and psychology input is necessary and as well the plaintiff may need to be seen in the context of a comprehensive multidisciplinary pain service given the chronic nature of the pain.
112Dr Ganesvaran again examined the plaintiff on 30 June 2017 and produced a report on examination.[51] The plaintiff told Dr Ganesvaran that he was taking Sandomigran 0.5 mg 3 tablets nocte[52] but has continued to have migrainous headaches and that dizziness symptoms had prevented him from taking a higher dose.
[51]        Exhibit P24, PCB 171.
[52]        At night.
113The plaintiff reported ongoing neck and low back pain, and was taking some non-steroidal anti-inflammatory medication with some effect. Dr Ganesvaran reported the plaintiff's mood continued to be low, and that the plaintiff said he had seen a psychologist or a psychiatrist but was unsure who it was.
114Dr Ganesvaran recommended that plaintiff come off Sandomigran and commence topiramate at a dose of 25 mg nocte for a week with an increase thereafter.
115Dr Ganesvaran examined the plaintiff again on 17 November 2017 and provided a report of that same date.[53] The plaintiff said he continued to suffer constant headache with only short periods of relief occurring intermittently. He also continued to complain of neck and low back pain, as well as pain in his knees. The plaintiff's mood continued to be low, but he had not recently seen a psychologist nor a psychiatrist.

[53]        Exhibit P25, PCB 172.
116Dr Ganesvaran provided the plaintiff with a plan to recommence on topiramate and increase it up to 50 mg BD[54] to assist his headaches. However, Dr Ganesvaran noted that the plaintiff's pain symptoms have been chronic and he may need the input of a pain specialist or a chronic pain clinic to further manage his pain symptoms.
[54]        Twice daily.
117Dr Ganesvaran again saw the plaintiff on 22 February 2018 and produced a report bearing that date. Dr Ganesvaran reported that the plaintiff's headaches had some migrainous features but he thought this as likely influenced by depression. Dr Ganesvaran said he trialled the plaintiff on several migraine prophylactic medications including propranolol, sandomigran and topiramate without any significant benefit. Dr Ganesvaran referred the plaintiff to Dr Michael Eller for review and further management of his headaches.
Dr Michael Eller
118Dr Michael Eller is the plaintiff’s treating neurologist. The plaintiff attended Dr Eller on five occasions. On 18 September 2018, Dr Eller conducted a neurological examination of the plaintiff’s cranial nerves and upper and lower limbs. The examination findings were normal, and Dr Eller thought that the plaintiff was suffering from “chronic migraines with associated migraine from head trauma”.[55]
[55]Exhibit P27, PCB 177.
119The plaintiff was again examined by Dr Eller on 8 January 2019, who recorded that the plaintiff’s migraines were “as bad as ever” whilst taking gabapentin.[56] He considered it had failed as a migraine preventative and left it to the plaintiff’s GP as to whether he would continue prescribing it for back pain. On 17 January 2019, Dr Eller also administered the plaintiff a Botox injection.
[56]Exhibit P28, PCB 178.
120Dr Eller assessed the plaintiff again on 18 April 2019, but he was unable to ascertain whether the Botox injection had ameliorated the plaintiff’s headaches. Dr Eller administered a second Botox injection.
121The plaintiff’s last recorded attendance with Dr Eller was on 11 July 2019, when he recorded that the second cycle of Botox was unhelpful for the plaintiff’s headaches.
122Dr Eller was keen to commence the plaintiff on Erenumab for his migraines, but noted that the cost of the medication may be prohibitive for the plaintiff.
Dr Dulip Dharmage
123Dr Dharmage is the plaintiff’s treating psychiatrist. He first saw the plaintiff on 17 September 2021. He initially presented to Dr Dharmage by reporting very low mood and heightened anxiety since his work injury. He reported insomnia, low frustration tolerance, feeling irritable all the time, fleeting suicidal ideation, and auditory hallucinations.
124Dr Dhamage diagnosed the plaintiff with a “Major Depressive Disorder and Generalised Anxiety Disorder associated with chronic pain.”[57]
[57]Exhibit P32, PCB 191.
125Following initial assessment, the plaintiff attended Dr Dharmage for treatment fortnightly. Dr Dharmage initially advised the plaintiff to wean off Duloxetine, and commenced him on Amitriptaline. The plaintiff was unable to tolerate the side effects of this medication, so was instead commenced on Venlafaxine XR. On 15 October 2021, Dr Dhamage commenced the plaintiff on Aripiprazole to address his auditory hallucinations. On 27 April 2022, Dr Dharmage advised the plaintiff’s solicitor by email correspondence that he considered that his mental illnesses were stable, as it was “unlikely that [his] psychiatric symptoms would improve any further.”[58] By 6 July 2022, the plaintiff had been additionally prescribed Quetiapine and Stilnox XR.
[58]Exhibit P35, PCB 196.
126Dr Dharmage provided two reports to the insurer responding to questions posed of him, dated 28 October 2021 and 21 July 2023. He also provided two reports to the plaintiff’s solicitors, dated 31 December 2022 and 17 October 2023. In his most recent report, Dr Dharmage diagnosed the plaintiff with “Major Depressive Disorder associated with psychotic symptoms” and “Generalised Anxiety Disorder”.[59] Dr Dharmage considered that the plaintiff had developed depression and anxiety on the background of his chronic pain and physical injuries. He said that the plaintiff’s physical restrictions did not derive from a psychiatric cause. He thought that the plaintiff’s psychiatric illnesses resulted in restrictions affecting his ability to return to work, and that these restrictions were likely permanent.
[59]Exhibit P39, PCB 216.
127Dr Dharamge believed that the plaintiff had a permanent, total incapacity for suitable employment, and no residual capacity for work. He also considered the plaintiff’s psychiatric illness to have had a detrimental effect on his sleep, social, domestic and recreational activities. Dr Dharmage regarded these impacts to the plaintiff’s overall enjoyment of life as permanent. He said it was difficult to comment on the prognosis of the plaintiff’s psychiatric illnesses, as they are “closely linked with the potential recovery from his physical injuries.”[60] However, he assessed the plaintiff’s prognosis as guarded.
[60]Exhibit P39, PCB 223.
Dr Debobroto Gorai
128Neurologist Dr Gorai prepared two reports for the defendant dated 24 March 2016,[61] and 24 February 2020.[62] The reports were tendered by the plaintiff.
[61]        Exhibit P49, (“Defendant Court Book”) DCB 47-56.
[62]        Exhibit P50, DCB 57-62.
The First Report
129In his first report, Dr Gorai recorded the plaintiff’s symptoms as:
….severe headache which is every day in the morning when he wakes up from sleep. They are bifrontal and diffuse. He has occasional nausea and vomiting. He takes medications and becomes a little better and gets relief and later in the day again the headache recurs. He describes the headache as though two stones are being clanged or banged against each other. He feels that his eyes are sore and they are popping out. His eyes also become blurry when he experiences the headaches. He also complains that his memory is not good. He fails to remember things that he has been told by his wife and often has to carry a list or ring her up to find out.[63]
[63]Exhibit P49, DCB 48.
130The plaintiff told Dr Gorai that prior to the fall he had no history of migraines and was otherwise in good health.
131Dr Gorai considered that the plaintiff’s presentation was consistent with post-traumatic concussional head injury, with post traumatic headache and possible post-traumatic stress disorder. He also considered that the plaintiff required formal psychological assessment as well as neurological management.
The Second Report
132Dr Gorai reviewed the radiology relevant to the plaintiff’s head injury and reported as follows:
His CT scan of the brain and cervical spine of 20 January 2016 revealed no acute intracranial pathology or haemorrhage, no cervical spine fracture identified. There is an X-ray of the lumbar spine dated 3 August 2016 which reports disc space height is normal, normally preserved at all levels. The vertebral bodies are normal in appearance and alignment. There are no features of pars defects or other relevant abnormal finding. Both sacroiliac joints appear normal. There is an MRI scan of the brain and whole spine he did on the 6 March 2017, no suspicious intracranial lesion detect, mild paranasal sinus disease. MRI scan of the whole spine reveals multiple bilateral foraminal stenosis in the cervical spine with mild central canal narrowing. This is due to disc and facet arthropathy, and normal appearance to the spinal cord and no neural impingement suspected over the thoracic or lumbar areas. No acute inflammation.[64]
[64]Exhibit P50, DCB 59.
133Addressing the plaintiff’s symptoms, Dr Gorai wrote that since the fall at work, the plaintiff had been very restricted in his physical function and was complaining of chronic, daily headaches. Dr Gorai noted that the plaintiff had been receiving treatment which included anti-depressants that he thought were most likely being used for managing the plaintiff’s pain, and he was also taking Neurontin (Gabapentin) for pain. Dr Gorai noted that the plaintiff had received Botox treatment but had not seen much benefit from it.
134Dr Gorai wrote that the plaintiff’s neck and back movement were restricted and that he complained of pain, although his radiology appeared normal.
135Noting that the plaintiff had not responded to various treatments for chronic headaches, Dr Gorai did not consider that the plaintiff would be able to return to pre-injury or suitable employment any time soon. He believed that the plaintiff required further treatment for six to twelve months to assess any improvement in his symptomology.
136Dr Gorai thought that the plaintiff’s symptoms were temporally related to the work incident and said:
The worker had no pre-existing headaches. No psychiatric or psychological issues or cognitive dysfunction. It appears that all of these symptoms have emanated from the head injury that he sustained at work. A small percentage of patients whereby they do sustain a mild to moderate traumatic brain injury but their cognitive psychological and psychiatric symptoms are very profound and persistent over years together and which makes them unable to get back to the workforce ever. Whether the psychological or psychiatric symptoms are originating from the head injury per sae [sic] or they are associated symptoms arising from a psychological overlay is very hard to say, it is only appropriate Specialist’s in psychological medicine and psychiatric medicine who will be able to comment on this, but often we find examples in the literature that such symptoms of psychological and psychiatric and cognitive in nature which are out of proportion to the actual MRI scan related injury to the brain or spine often tends to persist for a long period of time without any relief to the various medical support provided to them.[65]
[65]Exhibit P50, DCB 62.

Defendant’s Medical Evidence
Dr Mary Wyatt
137Occupational Physician, Dr Wyatt provided a medico legal report to the defendant’s solicitors dated 17 February 2020.[66]
[66]Exhibit D14, DCB 155-168.
138Dr Wyatt reported that the plaintiff’s spinal investigations and scans of his brain had been unremarkable. She said that an ultrasound scan of the right shoulder was normal with some age-related changes in his cervical spine which would have predated the fall. In her opinion, the plaintiff’s clinical picture did not suggest radiculopathy, or nerve root compression based on the degree of mild cervical foraminal stenosis that had been noted on scans.
139Dr Wyatt said that the plaintiff made no mention of left shoulder complaints.
140As to his neck, Dr Wyatt said the plaintiff told her that he was suffering chronic neck pain radiating into the right trapezius area. However, Dr Wyatt said there was an absence of symptoms indicative of a right shoulder condition.
141Dr Wyatt said that the plaintiff did not tell her that his headaches were troublesome.
142Dr Wyatt said the plaintiff’s neck problem was the only musculoskeletal condition she had identified arising from his fall, but it was a condition that normally is associated with a good prognosis, and she suggested that the fact it had not resolved was due to non-organic factors playing a major role.
143Dr Wyatt accepted that the plaintiff had sustained an injury to his neck, with referred pain into the right shoulder as a consequence of the fall on 28 January 2016, and she was satisfied that the fall had materially contributed to the plaintiff’s neck problem.
144However, as far as the right and left shoulders and low back complaints are concerned, Dr Wyatt did not consider the plaintiff’s fall, or his work in general, had materially contributed to bilateral shoulder problems or low back condition.
145Asked whether employment had materially contributed to the plaintiff’s neck complaints, Dr Wyatt said it was “challenging to answer as one does not have the usual confidence in the history presented. In the circumstances, the most accurate I can be is to suggest that the plaintiff may have some residual minor neck soreness and plausibly his employment materially contributes to that.”[67]
[67]Exhibit D14, DCB 164.
146Dr Wyatt stated that from a physical perspective and taking into account his neck, the plaintiff was fit for his normal job. She could not identify any aspect of his neck problem that should prevent him from resuming work either in his normal job or other suitable employment.
Professor Stephen Davis
147Professor Davis, is a neurologist who provided two medico legal reports to the defendant’s solicitors dated 17 August 2023,[68] and 30 January 2024.[69]
[68]Exhibit D23, DCB 263-271.
[69]Exhibit D24, DCB 272-273.
The First Report
148Professor Davis examined the plaintiff and was provided with various materials, which included radiology, reports of treating psychiatrists and neurologists in order to assist him.
149In his first report, Professor Davis found that the plaintiff had sustained a mild traumatic brain injury as a result of the fall on 28 June 2016. He noted that the plaintiff had been cleared of post-traumatic amnesia two days after the fall, and imaging showed no objective evidence of brain damage or spinal injuries. Professor Davis considered that the plaintiff may have suffered soft tissue injuries to the cervical spine as a result of the fall, however, he regarded the changes in his radiology reflected age-related constitutional changes.
150Addressing the plaintiff’s “current status” Professor Davis recorded that the plaintiff had not worked since the accident. He said that he drives on occasion, but only within his local area. As far as treatment, the plaintiff was taking Norgesic, Quitiapine, Abilify and Venlafaxine and performing some exercises at home and seeing his psychologist once a fortnight. He reported that his days consisted of staying at home, watching TV or sleeping and, on occasion, going out with his wife and children. He said that he could not do anything when he was in pain, the intensity of which varies from mild to severe, with severe pain coinciding with cold weather and when he was feeling stressed.
151The plaintiff told Professor Davis that since the accident he was suffering from a number of ongoing issues which were gradually worsening. These included chronic bifrontal headache, pain in his neck and right shoulder, constant lumbar pain, chronic insomnia, difficulties with memory and thinking, personality changes with a readiness to anger, constant sadness and anxiety and auditory hallucinations, however, these had significantly improved with medication. Professor Davis recorded that the plaintiff told him that he could not do anything at home, whereas previously he actively assisted with cooking, cleaning and vacuuming.
152On examination, Professor Davis recorded:
He moved around fairly constantly in the chair with discomfort and appeared to be somewhat perplexed when asked questions.
He knew the day of the week and the month, but not the date. He knew that he was somewhere in the city, could not name the institution. He knew the floor of the building, the 4^th floor but did not know the suite number. He was unsure of my name.
He was given 3 different objects through the interpreter but could only remember one at immediate recollection. He told me that it was not possible for him to perform serial 7 arithmetic and that he would have been able to do this before the accident.
The physical examination was rather challenging. He had difficulty lying down on the examination couch with pain in the neck and back. There was non-anatomical, collapsing-type weakness in the right arm and hand, particularly at the right shoulder. There were no objective neurological signs, symmetrical reflexes and flexor plantar responses.[70]
[70]        Exhibit D23, DCB 266.
153Professor Davis believed that the plaintiff’s presentation was overwhelmingly of a psychiatric nature and attendant with abnormal illness behaviour. He wrote:
One would expect a good recovery from this type of brain injury although subtle high level cognitive changes could persist. These would not significantly impact on a return to his previous functional status in terms of work and general lifestyle. The clinical examination illustrated clear-cut functional or non-anatomical features with functional elaboration. This included the collapsing type weakness of all muscle groups in the right arm. There were no objective neurological findings and this has been the consistent conclusion of previous examiners including the neurological assessments.[71]
[71]        Exhibit D23, DCB 268.
154Professor Davis thought that there might be a component of pain related to “cervical and lumbar spondylosis which was exaggerated by the injury (previously asymptomatic) but the overwhelming presentation” was psychiatrically based and non-organic.[72] He believed that the plaintiff could work in his previous occupation from a neurological viewpoint, but that his functional and psychiatric features were the dominant presentation that led to a “very pessimistic assessment.”[73] He thought the plaintiff’s antidepressant and antipsychotic medications appeared appropriate.
[72]        Exhibit D23, DCB 269.
[73]        Ibid.
The Second Report
155For the purpose of preparing his second report, Professor Davis was provided with surveillance of the plaintiff and accompanying reports.
156Professor Davis commented that in the surveillance taken on 6 February 2023, the plaintiff appeared to walk “perfectly normally,” get into a car and drive away.[74] Of the surveillance taken on 15 February 2023, he said that the plaintiff:
is seen alighting from the vehicle, again driving and again getting out of the car and walking in the street. You pointed out however that he seemed to be in pain getting out of the car and touching his low back briefly with a pained expression on his face, possibly aware of the surveillance.
As indicated in my report, the examination was challenging with collapsing-type right sided nonanatomical ‘weakness’. Hence much of the video surveillance is inconsistent with this examination in that he appears on most occasions to walk around quite freely without any major restriction. There is a couple of occasions where he did appear to have some slowing of his gait and pain.[75]
[74]Exhibit D24, DCB 272.
[75]        Exhibit D24, DCB 272-273.
157In answer to the question if the surveillance supported a conclusion that the plaintiff was attempting to mislead examiners into believing that his disability was far greater than it is, Professor Davis wrote, “all I can say is that there is a gross inconsistency between the patient's presentation and most of the video surveillance. I cannot comment on the patient's motivation in this regard but it underlines my belief that there is no major physical or neurological abnormality that would preclude a return to work.”[76]
[76]        Exhibit D24, DCB 273.
158Professor Davis regarded much of the surveillance depicted the plaintiff moving in an unrestricted manner without any signs of focal weakness or distress, and consistent with the conclusions he had expressed in his report.
Professor Simon Crowe
159Professor Crowe is a clinical neuropsychologist and he provided five reports to the defendant following on from a referral of the plaintiff for a neuropsychological assessment. His reports are dated 10 July 2016,[77] 9 October 2016,[78] 8 March 2020,[79] 13 January 2024,[80] and 4 February 2024.[81]

[77]        Exhibit D6, DCB 63-74.
[78]        Exhibit D7, DCB 75-76.
[79]        Exhibit D8, DCB 77-94.
[80]        Exhibit D9, DCB 95-112.
[81]        Exhibit D10, DCB 472-474.
The First Report
160In his first report dated 10 July 2016,[82] Professor Crowe said he asked the plaintiff if he anticipated a return to work within a month of the date of examination, and the plaintiff said that he could not see that happening “because he was dizzy, he cannot drive, he cannot stand for long, and he gets headaches and cannot do heavy work.”[83]
[82]        Exhibit D6, DCB 63-74.
[83]        Exhibit D6, DCB 67.
161Professor Crowe wrote that in the ordinary course of events, an injury such as the plaintiff had recounted, should completely resolve within one to three months and yet the plaintiff was demonstrating profound impairment on tests of perceptual reasoning, processing speed, auditory, verbal and visuospatial memory, and particularly so for recognition memory, which Professor Crowe said is regarded as the best preserved aspect of memory function. He said that the plaintiff performed in an equivocal way on performance validity tests and that he demonstrated profound compromise of other functions, particularly of visuoperceptual and visuomotor functions. The plaintiff had endorsed severe levels of self-reported depression, anxiety and stress, as well as significant levels of health problem concerns, suicidal thinking, psychotic features and moderate problems with anger control, negative affect and acting out.
162Professor Crowe said that the plaintiff’s condition involves “a significant functional overlay now, which is associated with less than genuine effort as well as with psychological functional overlay.”[84]
[84]        Exhibit D6, DCB 72.
163Professor Crowe said that while the slip and fall the plaintiff suffered at work culminated in the evolutions of the plaintiff’s presentation, other factors in his condition, including his “less than genuine effort, his somatisation and his functional overlay are overtaking the original nature of the uncomplicated traumatic brain injury, which would have been expected to resolve by this stage.”[85]
[85]        Ibid.
The Second Report
164In his report dated 9 October 2016,[86] Professor Crowe said he had been supplied with a record of a medical examination conducted by Dr Shasjit Varma, consultant psychiatrist, dated 23 August 2016. Professor Crowe noted that Dr Varma diagnosed a mild-adjustment disorder secondary to the head injury but that there was no sign of post-traumatic stress disorder and that from a psychiatric point of view, Dr Varma believed the plaintiff possessed a current work capacity for full pre-injury duties and hours.
[86]        Exhibit D7, DCB 75-76.
165Professor Crowe commented that in his first report he had said that "Mr Sharif performs with a profoundly impaired level of compromise of function on all aspects of neuropsychological functioning administered to him. There is a significant functional overlay and in association with this equivocal performance on tests of performance validity. There is a significant psychological contribution to his presentation, in my view".[87]
[87]        Exhibit D7, DCB 76.
166Professor Crowe again referred to Dr Varma who considered that the plaintiff’s psychiatric presentation was not an impediment to him returning to work, and he believed the plaintiff had a capacity to return to his pre-injury work.
167Professor Crowe added that he did not consider there was any ongoing neuropsychological impediment to the plaintiff being able to return to work, given that he had sustained what he described as a minor uncomplicated traumatic brain injury, and which should have fully resolved.
The Third Report
168Professor Crowe provided a third report dated 8 March 2020.[88] He said he had conducted a neuropsychological reassessment of the plaintiff on 28 February 2020 that took between two and a half and three hours to complete.
[88]        Exhibit D8, DCB 77-94.
169Professor Crowe said that there was no evidence of brain injury based upon the radiology supplied.
170Professor Crowe referred to Dr Walton’s psychiatric report dated 4 January 2018 whose opinion included, “All things considered, it is my opinion that Mr Sharif has sustained a meaningful psychiatric injury which does relate to the falling incident at work but as a reaction to physical injury rather than a direct response to psychological trauma.”[89] Professor Crowe observed that Dr Walton had gone on to say that, “From a psychiatric perspective Mr Sharif objectively is not suffering from incapacity for work nor any compromise of his ability to perform normal activities of daily living” and that, “Again, objectively this man is not incapacitated but it is likely that as long as he suffers from any symptoms whatsoever, his self-evaluation will be that he is unfit for work.”[90]
[89]        Exhibit P10, PCB 88-93.
[90]        Exhibit P10, PCB 92.
171Professor Crowe also referred to clinical reports of neurologist Dr Ganesvaran, who commented that, “I therefore feel that Shamshad’s headache is multifactorial with probably migrainous components but influenced by mood issues including depression.”[91]
[91]        Exhibit D8, DCB 82.
172Professor Crowe noted Dr Ganesvaran’s opinion that “I think it is unlikely that there is any significant contribution now from a post concussive syndrome given the length of time since his original fall. His fitness for work would really depend on the degree of control of his headache as neurologically he has no deficits otherwise. I feel significant psychiatry and psychology input is necessary and he may need to be seen in the context of a comprehensive multidisciplinary pain service given the chronic nature of his pain. The prognosis is hard to determine but is guarded due to the unrelenting nature of the pain so far."[92]
[92]        Ibid.
173Professor Crowe considered that the plaintiff’s condition was stable and “pretty much the same” as it was four years ago.[93] However, he recorded that the plaintiff said he had experienced a marginal deterioration from his previous assessment.
[93]Exhibit D8, DCB 92.
174Addressing the supplied psychiatric opinions, Professor Crowe emphasised that in his opinion that the nature of the fall the plaintiff suffered would not be expected to culminate in the profound level of compromise seen in him. He believed the plaintiff’s level of compromise was coming from another source and although he said he would defer to the opinions of the psychiatric examiners nonetheless, he thought that the plaintiff was “not performing in a manner consistent with the notion of genuine effort and that some, or all, of the deficits notes in his case are attributable to motivational compromise.”[94]
[94]        Exhibit D8, DCB 93.
The Fourth Report
175Professor Crowe performed a neuropsychological reassessment of the plaintiff on 12 December 2023 and provided a report of assessment dated 13 January 2024. He was provided with updated clinical records and reports of treating practitioners to aid in the provision of his report.
176Following neuropsychological reassessment, Professor Crowe found that the plaintiff’s results were “largely the same”, but he considered that if anything, the plaintiff’s “performance was marginally weaker than it would be expected to be as a consequence of the repeated administration of the instruments.”[95]
[95]Exhibit D9, DCB 108.
177Addressing diagnosis, Professor Crowe reported:
Mr Sharif was subject to an uncomplicated mild to moderate traumatic brain injury some seven years and 11 months ago. He does not demonstrate the improvement in performance that would be expected as a consequence of the usual trajectory of this condition. As a consequence, I consider that some, or all, of the deficits that he features in the moment are attributable to motivational compromise.[96]
[96]Ibid.
178Based on the plaintiff’s presentation, Professor Crowe did not believe that the plaintiff would be able to return to work in the foreseeable future, due to his motivational compromise.
The Fifth Report
179In his most recent report of 4 February 2024, Professor Crowe was asked to comment on the surveillance footage of the plaintiff. Professor Crowe reported that the surveillance did not provide any insight into the plaintiff’s cognitive problems and offered no clear implication to affect his previous opinion.
Dr Qasim Hamimi
180In a report dated 2 April 2017, and tended by the defendant, Dr Hamimi said that he had been the plaintiff’s treating general practitioner from 2010 until April 2017.[97] He said that the plaintiff had related to him the work accident whereby he had been walking upstairs when he fell and struck his head. Dr Hamimi said that the plaintiff had head trauma and lost consciousness and was taken to Dandenong Hospital where he stayed overnight but that CT scans of his brain and cervical spine returned nil significant findings. He said the plaintiff had been complaining of headaches, dizziness and sleep disturbances since that time.
[97]Exhibit D5, DCB 30-40.
181Dr Hamimi recorded that the plaintiff was independent in the activities of daily living.
182Dr Hamimi considered that the plaintiff’s prognosis was positive, and that he was fit for his pre-injury employment.[98]
[98]Exhibit D5, DCB 40.
Dr David Barton
183Occupational physician, Dr Barton prepared two reports for the defendant’s solicitor dated 14 June 2023,[99] and 15 January 2024.[100]
[99]        Exhibit D21, DCB 253-260.
[100]      Exhibit D22, DCB 261-262.
The First Report
184Dr Barton wrote that the plaintiff had no significant paid employment in Afghanistan and he had performed several jobs in Australia, including working as a spray painter, security guard and at the food factory at which he suffered his injury.
185Dr Barton recorded that the plaintiff drives a car very occasionally and only for short trips. He wrote that the plaintiff performs all of his activities of daily living but undertakes no household chores.
186In addressing the plaintiff’s complaints and symptoms, Dr Barton wrote:
He confirmed that all of his problems are getting worse and his problems are present all the time. He described extensive pain in the neck, around the right shoulder and in the lower back area. He also complains of constant headaches and pain around the right side of his head. In addition to the generalised pain, he also describes a constant burning sensation. He confirmed that these various areas of pain are in the same area and of the same type as he has always felt. His symptoms are generally worse during the colder weather. Any movement or activity makes his symptoms worse. His symptoms are very bad in the morning but generally also deteriorate as the day progresses.[101]
[101]Exhibit D21, DCB 254.
The Second Report
187To assist the provision of his second report, Dr Barton was provided with surveillance reports dated 15 July 2023 and 28 November 2023 and surveillance footage.
188Dr Barton noted that in his first report he had referred to a number of concerns about the plaintiff’s claimed presentations, and his opinion that inconsistencies in the plaintiff’s presentation pointed towards a degree of functional overlay. Dr Barton said that that the surveillance depicted the plaintiff at times walking cautiously holding his back, and on other occasions moving “quite freely”.[102] He said that it appeared to him that the plaintiff drove his car without apparent difficulty, and was seen to move his head and arms in a “reasonably free and easy manner.”[103]
[102]      Exhibit D22, DCB 261.
[103]      Ibid.
189Dr Barton considered that the surveillance pointed towards the plaintiff exaggerating his problems and trying to “maximise his perceived level of incapacity.”[104] He thought that the variable manner in which the plaintiff was observed to move in the film, suggested a non-physical basis for his complaints.
[104]      Exhibit D22, DCB 262.
190On examination, Dr Barton reported that the plaintiff appeared as sad and despondent and presented “with a considerable degree of symptom and disability focus.”[105] He said:
He had a strong sense of injury and there was a considerable degree of abnormal illness behaviour apparent throughout the consultation. There was much gasping, grimacing and complaints of pain throughout.
He struggled to get down from the chair and the examination couch. He struggled to remove his jacket. He walked slowly with a shuffling gait leaning forward and could not stand on the heels or toes. Careful measurement of arm circumference showed the right and dominant arm to be of slightly greater muscle bulk than the left, when measured above and below the elbows. There was a normal muscular contour over both shoulders. There was a normal keratinization pattern in both hands. There was no wasting in the small muscles in either hand.
[105]      Exhibit D21, DCB 254.

191On examination, Dr Barton found no swelling, deformity or wasting of the lower limbs. Measurement of thigh and calf muscle bulk revealed no difference between the two sides. There was no paraspinal muscle spasm. There was a normal contour of the spine.[106] Dr Barton did not consider any physical diagnosis existed to account for the plaintiff’s symptoms. He believed that the plaintiff had recovered from any soft tissue injury that may have resulted from the fall.
[106]      Exhibit D21, DCB 255.
192Having reviewed the radiology, Dr Barton believed that it exhibited only minor changes but that they predated the onset of the plaintiff’s symptoms and, moreover, were typical in someone of the plaintiff’s age.
193Dr Barton did not think any ongoing physical problem would be expected from what he classified as a simple fall, and yet the plaintiff complained of profound disabling symptoms. Dr Barton, therefore, considered that the plaintiff’s symptoms were entirely psychologically based. He said that from a physical point of view, the plaintiff possessed a physical capacity for work.
Dr Sashjit Varma
194Psychiatrist Dr Varma, prepared two reports dated 23 August 2016,[107] and 5 March 2020.[108]
[107]Exhibit D11, DCB 113-121.
[108]Exhibit D12, DCB 122-133.
195In his first report, Dr Varma recorded that the plaintiff presented without a past or family history of psychiatric illness.
196Based on his examination of the plaintiff, and having regard to Dr Gorai’s neurological report of 24 March 2016, he considered that the plaintiff had a mild adjustment disorder, secondary to a head injury, but without symptoms of post-traumatic stress disorder.
197From a psychiatric perspective, he considered that the plaintiff had capacity for full pre-injury duties. He did not consider that the plaintiff required any psychiatric treatment.
198Dr Varma examined the plaintiff in 2020 preparatory to his second report. Dr Varma found that the plaintiff lacked any signs of psychiatric problems, although he kept complaining of headaches, neck and back pain. Dr Varma summarised the plaintiff’s presentation as follows:
…here we have a young man who suffered an injury on 20.01.2016 when he slipped backwards from the last step of the stairs and struck his head and back on the concrete floor. Since then, he has been complaining of headache, neck ache and back pain. He is not able to return to work.
He has been given painkillers, injections, physiotherapy, and hydrotherapy but to no avail. He does not suffer from any psychiatric illness. I saw him in 2016 and asked the same question and even now I asked this question three times and he is clear that he does not have a psychiatric illness. It is mainly headache, neck and back pain.
Most of the IME reports which I have gone through have not mentioned psychiatric illness except one which says “mild adjustment disorder”. Other reports say that his impairment is 0% Whole Person Impairment. The neurologist’s report says that there is a functional overlay as his neurological problem with that type of injury should have improved. As of now he does not have any psychiatric symptomatology. He has not seen any psychiatrist, psychologist or counsellor and he is on duloxetine 60 mg which can be given for headache and pain also.[109]
[109]Exhibit D12, DCB 127.
Dr David Fish
199Occupational and environmental physician, Dr Fish prepared a report for the defendant dated 6 March 2019.[110]
[110]Exhibit D13, DCB 149-154.
200Dr Fish reported that the plaintiff was unforthcoming concerning the history of treatment he received at Dandenong General Hospital immediately after the fall. He wrote that the plaintiff was “unable to recall what had been happening much to him since” and he said that injections to his neck and back which he had undergone had provided no relief.[111]
[111]Exhibit D13, DCB 150.
201Dr Fish wrote of the plaintiff that:
His main focus of symptoms is headaches. He described persistent fronto occipital headaches with pain behind both eyes. He said that it is present most of the time and that it will be present when waking in the morning. He said that his eyes become dark meaning that his vision decreases at times, but this comes back after 5 to 10 minutes. He has noticed no particular scotoma or other visual change. He described a dry mouth, short temper and being angry with multiple symptoms of pain in the neck, back and both hands.
On direct questioning he said that he had had no other visual disturbance. His sense of smell and taste was normal. He said that his memory was poor and that he had been reminded to attend this appointment by his wife and by a phone message. His thinking and concentration are disturbed by headache which is persistent. In particularly however he has noticed no fits, faints, or blackouts since the incident. There has been no abnormalities in the upper or lower extremities in terms of weakness, paraesthesia, incoordination, or sensory change.[112]
[112]      Exhibit D13, DCB 150-151.
202On examination, Dr Fish recorded that “he was blinking frequently. He was obviously distressed and gesticulating with his hands. He cooperated poorly with the assessment.”[113]
[113]Exhibit D13, DCB 151.
203Dr Fish reported that since the fall three years earlier the plaintiff had suffered from headaches, concussion and ongoing multiple symptoms. He noted that the investigations had found no evidence of an organic traumatic brain injury, and formal neurological and neuropsychological assessment had found no evidence of organic dysfunction affecting the plaintiff’s capacity.
204Dr Fish said that he was also “unable to find any organic neurological abnormality that would be contributing to his ongoing symptoms. I therefore conclude that he is suffering from post-traumatic headache following a minor traumatic brain injury (now resolved) in the context of an ongoing Adjustment Disorder. The term post-concussion syndrome has wide meaning, and I consider that post traumatic headache is more appropriate for this circumstance.”[114]
[114]      Exhibit D13, DCB 152.
205Dr Fish considered that the plaintiff had a 0% whole person impairment attributable to post-traumatic headache.
Associate Professor Peter Doherty
206Associate Professor Doherty prepared three psychiatric reports for the defendant’s solicitors dated 26 February 2023,[115] 11 December 2023,[116] and 30 December 2023.[117]
[115]Exhibit D18, DCB 223-235.
[116]Exhibit D19, DCB 236-248.
[117]Exhibit D20, DCB 249-252.

[303]      Exhibit D23, DCB 269.
414Dr Barton concluded that the plaintiff had engaged in a deliberate exaggeration of his functional limitations. I prefer the analysis I provided earlier in these reasons, explaining why I am not satisfied that I should adopt the same finding about the plaintiff as reached by Dr Barton.
415My finding about seriousness under paragraph (a) of the definition of serious injury has been arrived at, despite the fact that it is not just from the defendant’s camp that opinions disadvantageous to the plaintiff’s claim are to be found. Dr Freilich, in his report dated August 2017, said that he conducted a neurological examination of the plaintiff which was normal and did not reveal evidence of damage to the plaintiff’s brain, spinal cord, or spinal nerve roots.[304] He found the radiology to be essentially normal.[305] He also expressed the opinion that the plaintiff should be able to return to work.
[304]      Exhibit P19, PCB 163.
[305]      Ibid.
416Dr Ganesvaren reported that the plaintiff presented with a normal range of neck movement and with no focal neurological findings, apart from subjective reduction in sensation in his left arm and leg to light touch, pain and temperature sensation. He reported that the plaintiff’s tandem gait, that is to say, walking in a straight line with the front foot placed such that its heel touches the toe of the standing foot, was normal. However, Dr Ganesvaren also expressed the opinion that the plaintiff’s headaches were multifactorial and partly migrainous, and were also influenced by mood issues.
417There is also a divergence of opinion between the views of the plaintiff’s current GP, and his first in time treating GP, Dr Hamimi who commenced treating the plaintiff in 2010 and continued to do so for some after the workplace injury. In his report of 2 April 2017, Dr Hamimi concluded that the plaintiff “has been suffering from dizziness, headache, mild anxiety since he had head injury at work… I think he has been suffering from mild adjusted [sic] disorder secondary to head injury.”[306] Dr Hamini commented that the plaintiff was independent in bathing, toileting, walking, eating, dressing, shopping, cooking, cleaning, transport, and managing money and medication. He was not in need of help for his activities of daily living. He had no neck pain nor joint pain, and his back pain was not of a high order. Dr Hamimi did not observe a limp, and he said that the plaintiff was able to remove his clothing without difficulty. Dr Hamimi went on to conclude that the plaintiff presented with a capacity for work and was fit for all pre-injury employment. It is apparent that if that degree of functioning Dr Hamini reported in 2017 is accepted, and the plaintiff’s later presentation is genuine as I have found it is, then the plaintiff has suffered a substantial decline in functionality over time and since then.
[306]      Exhibit D5, DCB 39.
418Dr Mirranay commenced as the plaintiff’s GP approximately two and half years after the work accident and provides a very different medical perspective.[307] I do not adopt the defendant’s submission that little assistance can be provided by Dr Mirranay because of the inclusions of unexplained conclusions by him. The report by Dr Mirranay sufficiently explains the basis of his conclusions that address the relevant lack of pre injury history, the injury, radiology and treating assessment. The fact itself that he differs from Dr Hamini in the history that the plaintiff presented with during the currency of his treatment of him, is not to mean that his conclusions lack explanation or efficacy.
[307]Exhibit P15, DCB 137.
419In assessing the varied medical opinions that include those of the plaintiff’s treating general practitioners, I have kept in mind that an application for a grant of serious injury certificate for pain and suffering calls to be determined as a gateway hearing as it has sometimes been referred to, and therefore, I have approached medical evidence on the footing that it is not feasible to assess the empirical quality of all medical opinions and findings of specialist practitioners with the rigour that is more readily capable of being undertaken at a trial of a proceeding because of the advantages of cross-examination. Nonetheless, and despite the limitations associated with a serious injury application, the plaintiff carries the onus and bears the burden of proof to establish a serious injury under the Act.
420In Haden Engineering Pty Ltd v McKinnon,[308] Maxwell P set out various principles to which recourse may be helpfully had in serious injury applications in an effort to assist in evaluating the “pain and suffering consequences” in a given set of circumstances for the purposes of applying the language of the statutory provision and these may include:
·        disturbed or interrupted sleep;
·        reduced mobility;
·        cognitive functioning (whether directly because of the pain or indirectly because of the effects of pain-relieving medication);
·        capacity for self-care and self-management;
·        performance of household and family duties;
·        recreational activities;
·        social activities;
·        sexual life; and
·        enjoyment of life.[309]
[308](2010) 21 VR 1.
[309]Ibid, [16].
421I am satisfied that the reductions and effects on the plaintiff across many aspects of his life, when taken into account as whole, provides a proper basis to conclude that the physical injury is, in comparison with other cases, more than significant or marked, and at least very considerable.
Findings Paragraph (c) Injury
422In light of my finding under paragraph (a) of the definition of serious injury, it is not necessary that the plaintiff separately prove a claim under paragraph (c) of the definition of serious injury. However, I am satisfied that the plaintiff has established the entitlement to a certificate for pain and suffering under paragraph (c). I am satisfied it is severe and it is permanent.
423In regard to paragraph (c), I accept the accounts of the consequences experienced by the plaintiff that are set out at paragraphs 316 and 317 of these reasons and have also taken into account the prescribed medications referred to in paragraph 318, and that is also a consideration that supports my finding and the conclusion is reinforced when the physical consequences of his mental disorder are also taken into account as is permitted in law.
Disentangling
424In addressing the question of disentangling and the defendant’s contention that the plaintiff failed to do so, I do not agree. The obligation to disentangle the physical and psychological consequences of an injury is confined to a claim under paragraph (a) of the definition of ‘serious injury’. This requirement is to be found in section 325(2)(h) of the Act. By reason of that provision, a worker who seeks to claim damages for an organic injury in accordance with paragraph (a) cannot rely on the psychological consequences of that injury to establish that it is a ‘serious injury’. However, a worker who seeks to claim damages for a psychological injury in accordance with paragraph (c) can rely upon all psychological consequences, including those arising from an organic injury, as well as the physical consequences of a mental disorder.
425In Meadows v Lichmore,[310] the Court of Appeal approved the following approach:
…serious injury applications raising issues of this kind are effectively approached in a two-step manner. The first step is to ask whether there is a substantial organic basis for the pain and suffering consequences relied on. If the answer to that question is affirmative – and, of course, the pain and suffering consequence has satisfied the statutory criterion – then the applicant will succeed without the need for any ‘disentangling’ of the physical contributions to the pain and suffering from the psychological contributions.[311]
[310][2013] VSCA 201.
[311]Ibid, [21].
426The Court continued:
If, however, that first question is not – or cannot be – answered affirmatively, then the applicant will need to take the next step in ‘disentangling’. That is, the applicant will need to be able to separate the physical contribution to the pain and suffering from the psychological, in order to be able to satisfy the Court that the pain and suffering consequences attributable to the physical injury satisfy the statutory test.[312]
[312]Ibid, [22].
427Furthermore in Noori v Topaz Fine Foods Pty Ltd,[313] the Court of Appeal summarised the position when it stated that “no question of ‘disentanglement’ arises under para (c) of the definition of serious injury.”[314]
[313] [2018] VSCA 323.
[314] Ibid, [5].
428By reference to the analysis earlier set out in these reasons, I am satisfied that the plaintiff has proved the existence of a substantial organic basis for the pain and suffering consequences relied on under paragraph (a) and hence the disentangling as was pressed for by the defendant falls away.
The Rehabilitation Submission as it pertains to a claim for pecuniary loss and relevant to paragraph (a) or (c)
429It is next convenient to address the defendant’s submission concerning the plaintiff’s failure to discharge his obligations pursuant to section 325(2)(g) of the Act and that Mr Elliott submitted was a preliminary point and that disentitled the plaintiff to a claim for loss of earnings.
430I am unable to adopt the analysis in Elias-Mikre v Royal Melbourne Hospital,[315] and relied on by the defendant. It is unclear what evidentiary obligation his Honour intended to impose upon a plaintiff by use of the phrase ‘heavy onus,’ but in any event, and with respect to his Honour, the onus is the ordinary onus, and not some other test.
[315] [2013] VCC 1860.
431In any event, and in addressing the reasonableness of a worker’s attempts at rehabilitation, the concept of which must incorporate a range extending from no attempt or effort to a dedicated application to the same, it must take account of considerations such as the plaintiff’s level of education, age and capacity for retraining with those indicia informed by the findings I otherwise make of the plaintiff based on the evidence before me. As well, even if I was to find that the plaintiff unreasonably failed to engage in rehabilitation, such a conclusion does not doom his claim for pecuniary loss but instead, it would then prove necessary to determine what the plaintiff would have been able to earn if he had made reasonable attempts at rehabilitation or retraining. However, because of my findings about the plaintiff’s physical and psychological impairments, I am not satisfied that he should be assessed as failing to meet the statutory provision.
Loss of Earnings Specifically
432In determining the matter of the plaintiff’s claim for loss of earnings, in my judgement it is apparent by reason of my finding that the plaintiff suffers from aggravation of cervical and lumbar spondylosis that by reason of it alone his symptomology precludes him from both pre injury employment or suitable employment and that the same is permanent.
433I am also satisfied that the plaintiff separately suffers a severe mental disorder from which he has no capacity for suitable employment.
434In arriving at my findings favourable to the plaintiff on the loss of earnings claim. It is proper that I address the jobs identified by the defendant and relied on by it as amounting to suitable employment.
435First, because I have found that the plaintiff’s without injury earning capacity is $1,100 per week, in order to demonstrate the required 40 per cent loss of earning capacity, the 60 per cent threshold figure is $660 gross per week.
436I am satisfied that the plaintiff has proved that jobs identified by the defendant and relied on by it as suitable employment are not jobs to which having regard to the plaintiff’s physical and mental health he is capable of undertaking on a consistent and reliable basis.
437I note that even had I been satisfied that the plaintiff had the capacity to undertake the job of Crossing Supervisor, the claim for a loss of earnings would not be extinguished, because the vocational assessment identified that the role paid $194.96 per week[316] which sum falls well short of the 60 per cent threshold of $660 per week.
[316]      Exhibit D28, DCB 408.
438I will now address the other contended for suitable employment relied on by the defendant and explain why I am satisfied that the plaintiff has proved that they do not amount to suitable employment.
439The CoWork Vocational Assessment Report identified the job of an Alarm Security Monitor.[317] This job includes the need for “psychological and emotional attributes” and “attention to detail”.[318] Shifts are said to be of 12 hours duration and involve a roster of 3 days on and 2 days off. The holder of such a job is required to monitor computer screens and utilise three different alarm systems. In light of the plaintiff’s difficulties with concentration and ongoing and frequent severe headaches, I am satisfied that he has established that the job of Alarm Security Monitor falls outside his capabilities.
[317]      Exhibit D28, DCB 410.
[318]      Exhibit D28, DCB 424.
440In addressing the job of Light Packer, I am satisfied that this would also fall outside the plaintiff’s functional limitations both physically and psychologically. Attributes required for the job include:
Concentration and attention is required to inspect processing line
High level of focus required to ensure accuracy in packaging
Some work performance targets may exist to ensure efficient use of equipment.[319]
[319]      Exhibit D28, DCB 434.

441The position is identified as able to be performed either standing or sitting. I am satisfied that the plaintiff experiences difficulties standing or sitting for long periods of time. However, I do not agree with Ms Zhu’s contention that I should exclude the potential that the plaintiff would be able to alternate between seating and standing positions to discharge the tasks of the job because the job is expressed as one to be performed either standing or sitting. I reject the argument that because of the high level of focus required, that should the plaintiff be permitted to alternate between being seated and standing positions, doing so would likely be disruptive and break his focus, or that doing so would mean he is less likely to meet the performance targets set by the workplace.
442The physical demands of the job also are expressed as including, “walking along production line to straighten product, remove faulty product and clear [the] line”.[320] I accept that because the plaintiff has difficulties walking for sustained periods, that it is a reasonable assumption that the requirement to walk along a production line would likely be a frequent requirement over the course of an 8 hour shift. I am satisfied the capacity for the plaintiff to do so on an ongoing and consistent basis, falls outside his functional limitations.
[320]      Exhibit D28, DCB 435.
443The plaintiff is not proficient in the English language. He can speak Pashto and has some spoken English but cannot read or write in English well. He gave his oral evidence through the facility of an interpreter. Nonetheless, the plaintiff was able to maintain employment before injury despite his limited functional grasp of spoken English. However, he testified that he had difficulty filling in forms in his previous job as a security guard roles and required the assistance of others to fill out paperwork that was required. I accept his evidence.
444A Medical Panel found in 2021 that the plaintiff had no current work capacity. It found that his lack of work capacity resulted from and/or materially contributed to by the plaintiff’s work-related post-concussion headache, chronic pain syndrome and somatic symptom disorder with predominant pain. In terms of relevant factors in determining capacity, the Medical Panel referred to the plaintiff’s limited education, his rudimentary English reading and writing literacy skills, post-concussion headache and a chronic pain syndrome and his psychiatric condition and which limit his subjective physical tolerances for standing and walking, along with his thinking, mood and behaviour.
445From a psychiatric point of view, the plaintiff’s treating psychiatrist Dr Dharmage expressed the opinion that:
Considering only his psychiatric illnesses, he has no current capacity for retraining or suitable employment. Shamshad’s depression and anxiety has not improved to any reasonable level for him to undertake retraining or engage with a suitable employment…
He has no other non-work related health issues, personal or family issues, drug and alcohol issues affecting his retraining or engage with a suitable employment.[321]
[321]      Exhibit P33, PCB 194.
446Dr Dharmage in his 2023 report said that:
Shamshad suffers from Major Depressive Disorder causing a pervasive low mood, anhedonia and chronic insomnia, which make it difficult to focus on work and also to find a sense of meaning/productivity in work accomplishments. He also suffers from lethargy most of the days associated with lack of motivation to attend his daily activities, which limit his ability to attend on work tasks. As a result of his Generalised Anxiety Disorder, Shamshad is often in a heightened state of stress. He feels anxious both in the setting of his chronic pain and physical disabilities caused by his work related injuries. Shamshad also additionally become anxious about a multitude of minor day to day problems. His high levels of anxiety and its resultant impairment of his memory/concentration make it difficult for Shamshad to concentrate on his work tasks. His anxiety also contributes to day time fatigue, which further impacts on his work performance. In my clinical opinion, Shamshad is incapacitated to do any type of work that he is suited to on a reliable and consistent basis as a settled member of the workforce…
Shamshad has no residual capacity for work. [322]
[322]      Exhibit P39, PCB 221.

447Dr Mirranay’s 2023 report was expressed in like terms when he wrote that the plaintiff:
is not fit and he will not be fit in the foreseeable future for any work. Mr Sharif worked as a process worker, and he speaks limited English and has no other skills then working as a labourer or a process worker. Due to his mental health status and being on multiple medications, he will not settle in any workforce in foreseeable future. He will be not productive even if he will be employed by any employer. Due to his multiple medical and psychological issues he will not last in any work force. There is high risk of aggravation of his mental and physical injuries caused by the injuries he sustained in his previous job.[323]
[323] Exhibit P16, PCB 151.
448Dr Mittal’s opinion is that the plaintiff has no capacity for work:
Based on Mr Sharif's current injuries, I do not believe that he has the capacity for suitable employment on a consistent and reliable basis as a settled and established member of the wage earning workforce without risk of re-injury and deterioration of his symptoms. This is based on the nature of the underlying condition, the duration of his symptoms, the limited treatment to date as well as his functional limitations as described above…
I do not believe that Mr Sharif has any residual capacity for alternative suitable employment. This is taking into consideration the multiple locations of pain, refractory nature of his pain and the duration of his symptoms.[324]

[324] Exhibit P11, PCB 100.
449Dr Awad opined that:
When taking into consideration the nature of his injury, his ongoing symptoms of headache, his mental health, his cognitive dysfunction, his lack of qualifications, his lack of transferable skills, the length of time out of employment which is a negative prognostic factor for returning to work, his language skills, on the balance of probabilities, Mr Sharif is unlikely to be able to resume any form of employment or successfully return to the workforce. In my opinion, his mental health is likely to prevent him from retraining. Whilst one would not wish to restrict a young individual from employment, when considering him with his somatic focus and poor mental health, realistically I doubt whether he would be able to undertake any work reliability and consistently.[325]
[325] Exhibit P12, PCB 106.
Conclusion
450The plaintiff is entitled to a certificate for pain and suffering and for loss of earning capacity under paragraph (a) and paragraph (c). I will hear the parties on the form of final orders.

[2024] VCC 1662

25 October 2024