Silva v Victorian WorkCover Authority
[2023] VCC 19
•27 January 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Serious Injury List
Case No. CI-21-04912
| CRISTIAN HERNAN SILVA | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE FRAATZ | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 and 4 October 2022 | |
DATE OF JUDGMENT: | 27 January 2023 | |
CASE MAY BE CITED AS: | Silva v Victorian Workcover Authority | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 19 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – low back – psychiatric injury – pain and suffering and loss of earnings – credit – causation – consequences
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Palmer Tube Mills (Aust) Pty Ltd v Semi [1998] 4 VR 439; Papamanos v Commonwealth Bank of Australia [2014] VSCA 167; Haidar v Transport Accident Commission [2016] VSCA 182; Transport Accident Commission v Streicher [1998] 4 VR 439; Petrovic v Victorian WorkCover Authority [2018] VSCA 243; Johns v Oaktech Pty Ltd [2020] VSCA 10; Jovanoska v Betta Foods Pty Ltd [2009] VSCA 98; Richter v Driscoll [2016] VSCA 142; Harris v DJD Earthmoving Pty Ltd [2016] VSCA 188
Judgment: Application dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R McGarvie KC with Mr R Paoletti | Slater and Gordon Ltd |
| For the Defendant | Mr R Stanley | Minter Ellison |
HIS HONOUR:
1The plaintiff, Mr Cristian Hernan Silva, brings this application for leave pursuant to s134AB of the Accident Compensation Act 1985 (“the Act”) to issue proceedings for damages against his employer in respect of injuries sustained by him in the course of his employment with Cosh Outdoor Living Pty Ltd (“Cosh”). He relies on paragraphs (a) and (c) of the relevant definition of “serious injury” for both pain and suffering and economic loss consequences. The body function relied upon is the spine, with referred symptoms into the left lower limb; and a consequential psychological/psychiatric injury.
2It is not in dispute that Mr Silva injured his lower back on about 9 April 2012, in compensable circumstances, in the course of his employment with Cosh. His employer, however, disputes that Mr Silva’s current condition is work related. If Mr Silva’s current condition is compensable, the employer submits that the consequences to Mr Silva of his injury do not satisfy the relevant definition under either paragraph (a) or (c).
3The questions for the Court to determine, therefore, are as follows:
(a) is Mr Silva’s employment with Cosh a cause of any current condition;
(b) are the consequences to Mr Silva, with respect to pain and suffering, 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 and marked” and as being “at least very considerable”, in accordance with the narrative test set out in s134AB of the Act;
(c) pursuant to s134AB(d), is any impairment due to a work-related psychiatric condition “severe”; that is, something more than “serious”;
(d) are the consequences of the injury permanent, in the sense of continuing into the foreseeable future;
(e) has Mr Silva retained a capacity for suitable employment;
(f) has Mr Silva, as the result of his injury, suffered a more than 40 per cent loss of earning capacity?
4Accepting that Mr Silva suffered a soft-tissue injury to his back in a discrete incident at work in 2012, treated conservatively, the evidence overall relied upon by Mr Silva has not discharged his onus of establishing that the consequences of any injury satisfies the “very considerable” test.
5The application fails at the outset, however, because I find that Mr Silva is not suffering from a compensable injury as at the hearing of this application.
6As Brooking JA noted in Palmer Tube Mills (Aust) Pty Ltd v Semi,[1] in serious injury applications, the credit of the applicant is usually of great importance.[2] This is so, because often the opinions of medical witnesses depend on what they have been told by the applicant and upon the applicant’s behaviour or performance on examination or upon testing.
[1][1998] 4 VR 439 at 448
[2]See also more recently the Court of Appeal in Papamanos v Commonwealth Bank of Australia [2014] VSCA 167 and in Haidar v Transport Accident Commission [2016] VSCA 182
7The credit of Mr Silva is a matter of great significance in determination of this application, as was conceded by both counsel for the parties. Success for Mr Silva depends heavily on his evidence and histories to doctors being accepted.
8Senior Counsel for the plaintiff, Mr Richard McGarvie, generously described his client as “in some respects … a slightly unreliable witness” but that he was “doing his best”.[3] For the reasons set out below, I am not satisfied that critical aspects of Mr Silva’s evidence and histories to doctors should be accepted as being reliable and accurate. This conclusion entitles me to reject various medical opinions upon which he relies, being opinions based on his histories and observations upon examination.
[3]Transcript (“T”) 163
The evidence
9Mr Silva relies on three affidavits, sworn on 1 July 2021, 1 June 2022 and 29 September 2022; an affidavit from a friend, Remy Monro, sworn 28 September 2022, and various medical reports and other documents.
10The application proceeded in the usual fashion with Mr Silva adopting the contents of affidavits sworn by him. He was cross-examined carefully and appropriately by Mr Richard Stanley on behalf of the Victorian WorkCover Authority (“VWA”), including by reference to three surveillance videos and two other videos publicly available on YouTube. Those videos depicted Mr Silva performing in a musical group as a percussionist, and were said to demonstrate his physical capacity being unrestricted. Various other matters were explored.
11Medical evidence was tendered without cross-examination or oral evidence. The parties otherwise tendered the affidavits, medical reports and other relevant material. I have considered all of the tendered material, together with, in particular, the oral evidence of the plaintiff.
Background
12Mr Silva was injured on 9 January 2012 in the course of his employment with Cosh as a warehouse worker. The employer’s warehouse received and shipped various furniture items, including glass tables, many of which were quite large and heavy. While moving a pack of ten glass tabletops with three other co-workers, the pack fell off a pallet jack being manoeuvred by Mr Silva and his co-workers. Mr Silva ended up in a squatting position with the pack on top of him.
13Mr Silva says he felt a cracking sensation and pain in his lower back before coming out from under the pack and onto the ground. A co-worker took Mr Silva by car to the Alphington Sports Medicine Clinic, where he was assessed and treated for a soft-tissue injury to the lower back.
14Mr Silva gave evidence that he had x-rays at this clinic, which apparently showed a hairline fracture at the L4 vertebra.[4] There is no record of this radiological investigation and I reject this evidence. Not only is there no evidence of this procedure being undertaken in circumstances where the relevant general practitioner’s records were available, other evidence is more consistent with his treatment being conservative only.
[4]See also history to Dr Ralph Poppenbeek on 12 July 2020: Plaintiff’s Court Book (“PCB”) 47
15After a period of time off work, he was certified as fit for alternative duties from 28 February 2012, commencing with four-hour shifts, to increase by two hours every week. At the time he was made redundant from Cosh in June or July 2012, he was working full-time hours, with restrictions of no lifting above 20 kilograms, although this was to be reviewed by a physiotherapist for approval to increase this limit.
16The objective evidence is unequivocal that Mr Silva did not have any medical treatment for his back between July 2012 and June 2017. Despite attending his general practitioner for other medical matters during this period, no mention was made of his back injury or any related symptoms.
17Mr Silva says that he then attended a chiropractor, Mr Chris Slater, in 2017 following experiencing pain in his lower back and down his legs. Mr Silva did not tender any evidence by way of a report or contemporaneous treatment notes from Mr Slater corroborating this version of events.
18In 2020, Mr Silva’s history to Dr Ralph Poppenbeek, specialist occupational physician,[5] included experiencing a “relapse” after going for a walk. His sworn evidence was that he noticed a sense of tiredness in his lower back, pelvis and hips walking up a hill, and when he returned home experienced a sharp pain in his lower back and down his legs.
[5]See report of Dr Poppenbeek dated 12 July 2020: PCB 47
19Mr Silva lodged a WorkCover claim on or about 26 April 2019, which was rejected by the claims agent on 28 May 2019 because:
(a) it was made after he ceased to be employed by Cosh;
(b) he did not lodge his claim as soon as his incapacity became known; or
(c) he did not provide a satisfactory explanation as to why he could not make a claim while employed, or when his incapacity became known.
20Mr Silva says he was encouraged by his employer not to put in a WorkCover claim at the time of his injury, but it is not necessary in this application to make any finding in this regard.
The issues
21I accept that Mr Silva currently has a low back condition, which at times in the past has resulted in referred pain into his left leg.[6]
[6]See for example reports of Mr Garry Grossbard, orthopaedic surgeon, dated 23 March 2020; Dr John Holmes dated 10 April 2020; Dr Ralph Poppenbeek dated 12 June 2020
22At the heart of the dispute is the question of whether Mr Silva’s 2012 injury is still productive of incapacity; and, if so, whether the consequences of that injury are “serious”.
23The plaintiff bears the burden of proof in establishing that his current back and psychiatric condition are work-related.
24The plaintiff’s back was not the subject of any scans or other radiological investigations initially, or referral to an orthopaedic surgeon since. He required treatment primarily from a physiotherapist for about six months by which time he had returned to work full time, with minimal restrictions. He thereafter had no treatment at all for around five years. According to all examining doctors, no surgical intervention is required.
25In a case such as this, where there is a lack of objective evidence or treatment for a period of nearly five years, the credibility of Mr Silva assumes great significance in determining the seriousness of the injuries relied on by him,[7] and also the extent to which medical opinions which rely upon histories obtained by Mr Silva may be accepted.[8]
[7]Johns v Oaktech Pty Ltd [2020] VSCA 10
[8]Jovanoska v Betta Foods Pty Ltd [2009] VSCA 98
26The VWA submitted that the work injury eventually healed;[9] Mr Silva’s counsel proffered the alternative scenario that he suffered a frank injury to the spine in 2012, which settled down but never healed, and was subject to a pattern of relapse followed by improvement, return to activity, then further relapse.
[9]See report of Dr Graeme Brazenor, neurosurgeon, dated 2 November 2020
27For example Mr Silva gave a history in March 2022 to psychiatrist, Dr Nathan Serry,[10] that –
“He was initially quite symptomatic, improved to a degree but then suffered a relapse and aggravation in 2016 [scil 2017] after which he … struggled with relatively constant low back discomfort and associated functional limitations.”
[10]PCB 77
28The absence of symptoms and treatment in the years following the initial incident at Cosh in 2012 might be considered inconsistent with it being the cause of any symptoms currently being experienced.
29Mr Silva’s evidence in relation to the period from July 2012 to June 2017 is less than compelling. His first affidavit deals with this period in this way:
“On the day of incident, one of my co-workers drove me to Alphington Sports Medicine Clinic. I received treatment for my lower back symptoms there for a number of months and the employer paid for it. As discussed in more detail below, in or about mid-2012, the employer terminated my employer (sic). My Physiotherapist said words to me to the effect that he had not finished with treatment. But I was unemployed and I could not afford to pay for the treatment myself.
For a number of years, I did not have medical treatment. I had limited finances because I was receiving Centrelink benefits (and Aus Study payments when I was studying, as discussed in more details below). My rent used up most of my fortnightly payments, and I had other essential things to pay for. I was not aware until more recently that I could have medical care plans. I just managed my ongoing lower back symptoms as best I could without treatment. I tended to avoid challenging myself physically and tried to avoid activities that caused my lower back symptoms to increase.”[11]
[11]Plaintiff’s Further Amended Court Book (“PFACB”) 8-9 at paragraphs [14]-[15]
30There is no evidence that his termination from work was injury-related; or that he was having any difficulty managing to work full-time hours with a lifting restriction of 20 kilograms. His evidence was that after termination of his employment in 2012:
“After that, I did some work delivering food. I thought it would be lighter work but, I still struggled with the symptoms in my lower back. I was not able to keep up with the schedules for delivering the food due to my symptoms and I had to stop.
I then lived on a friend’s farm for a short period of time. While I was there, I did some light tasks and errands.
I then decided to look for something to study, because I knew I needed to do something that was not physical. I applied for a degree at SAE Institute and attained a Bachelor of Audio Production. The campus was at Bryon Bay and I lived and studied on campus.”[12]
[12]PFACB 14-15 at paragraphs [54]-[56]
31It is not in dispute that at or around the time, Mr Silva was made redundant in 2012, his marriage of ten years broke down, and he faced a number of personal challenges. Again, the affidavit material is afflicted by a lack of detail as to these circumstances and their consequences upon him. His affidavit evidence concentrates on the period of time after mid-2017 when, as he says:
“… I went for a walk in an area that had a hill. As I was walking up the hill, I noticed what I recall felt like a sense of tiredness in my lower back, pelvis and hips. When I got home, I felt a sudden urge to go to the toilet. I went to the toilet and sat down and I felt a sharp pain in my lower back and down my legs.
I struggled to walk for a number of weeks after that. … .”[13]
[13]PFACB 9 at paragraphs [17]-[18]
Credit
32According to the Alphington Sports Medical Clinical progress note of 22 May 2012, Mr Silva was at greater than 90 per cent of his pre-injury functional level by that date, with a plan to increase work to six hours a day, five days per week, increasing to full shifts on an unrestricted basis. By 21 June 2012, he was ready to increase his load, and the opinion was that he could return to full hours, maintaining a 20-kilogram lifting restriction, subject upon physiotherapy review to increase to greater loads. By the time he had been made redundant in July 2012, he told his general practitioner that his lower back pain was “okay”, with no new issues.[14]
[14]Defendant’s Further Amended Court Book (“DFACB”) 107
33In contrast to this objective, contemporaneous evidence, his oral evidence in Court was that at the time of redundancy, his back was “extremely uncomfortable and limiting”. I reject that evidence.
34On 3 June 2012, Mr Silva consulted a new general practitioner at Burwood Health Care. He described himself as generally healthy and not on any medications. Thereafter, in August, October and November 2012, he consulted various general practitioners at that medical centre without reference to any back pain or symptoms, or need for treatment.[15]
[15]DFACB 108-110
35There are no progress notes from attendance on any doctor or other health professional from November 2012 until 2017. To my mind this casts significant doubt over Mr Silva’s evidence that, from time to time during this same period, he was so debilitated with pain that he had to spend days at a time in bed. I reject that evidence.
36Mr Silva completed a student application form at the SAE Institute, Bryon Bay, where he was to complete a sound engineering Bachelor degree from 2014 to 2016. In answer to the question “Do you have any disabilities, impairments or long-term medical conditions that may affect your studies?”, he answered “No”. There was no evidence that he was unable to complete any component of his study as a result of back symptoms.
37There is no mention in Mr Silva’s first affidavit of being no longer able to exercise his pre-injury capacity as a percussionist. Rather, his evidence in his first affidavit is that:
“A number of years ago, I began performing with a band called Map Stone, and I continue to perform with them. I play percussion instruments such as congas, bongos, timbales, shakers, cowbells and tambourines. We have been performing about twice per month. For each performance, we generally have two or three rehearsals.”[16]
[16]PFACB 15 at paragraph 59
38Mr Silva states that he “[does] not feel that my lower back and left leg symptoms would allow me to perform every weekend”,[17] presumably on the basis that his “lower back muscles tighten up” after he performs and he has (unspecified) “increased symptoms”.[18] He says that he takes Panadol prior to performing, and he can “move around and bounce a bit on stage” when he plays. He does not establish that he has ever performed every weekend.
[17]PFACB 16 at paragraph 62
[18]PFACB 15 at paragraph 59
39In his third affidavit, he asserts that he is not able to perform music, his “true love in life”, to the extent he would like. This affidavit says that were he not experiencing symptoms in his lower back, he “would be performing about five gigs per week as a percussionist”, but that:
“Due to the symptoms in my lower back, I do not feel it is realistic for me to be able to do anything close to five gigs per week, plus rehearsals, plus setting up and packing away instruments and equipment.”[19]
[19]PFACB 90
40As with much of Mr Silva’s evidence, it is difficult to know what to make of this claim. There is no evidence that he has ever performed every weekend, let alone five gigs a week. His sworn evidence includes that since 2012 he is still able to perform regularly, including a period of time recently performing three gigs per week without difficulty, touring Canada with Map Stone in 2019 and playing every fortnight on an ongoing basis. The only evidence for the reason he is not continuing to perform with Map Stone at the moment is that “the band is no longer performing”,[20] so he does other gigs.
[20]PFACB 23 at paragraph 46
41Surveillance footage of Mr Silva taken at two festival performances within a period of one week in March 2020 shows absolutely no restriction in movement or function at all, and clearly shows him jumping high into the air and performing vigorously as a percussionist. Consistent with other artful answers, he sought to downplay the level of his physical dexterity demonstrated on stage, including jumping high into the air, in the face of the clear footage presented to him.
42It was fairly put to Mr Silva during cross-examination that this footage, in depicting a forty-seven-year-old man engaged in frenetic activity and jumping as high as he could, bouncing around playing the drums, indicated that his back was not incapacitated in any way. His explanation was that “I am not lifting anything”, and he had had a bit to drink that day.
43I accept the VWA’s submissions to the effect that the surveillance videos and other freely available YouTube footage tendered are completely inconsistent with the picture that Mr Silva has tried to paint of himself as someone with severe restrictions. They depict a man thoroughly enjoying himself, elated, and without any indication of pain or restriction whatsoever.
44The manner in which the evidence unfolded in relation to his musical career prior to the date of the incident in January 2012, its importance to him, and his inability to continue to perform as he did prior to the incident at work, was unsatisfactory. To the extent it emerged in his third affidavit – after the initial trial date in June 2022 was adjourned – and during the course of re-examination, I place little weight on it.
45I also have had regard to Mr Silva’s evidence that in recent years, since his injury in 2012, he is able to drive between the Byron Bay area and Melbourne in a van, on each occasion completing the 1,600-kilometre drive from Byron Bay to Melbourne in two days. Mr Silva drove for between eight to twelve hours each day, with only short breaks every two hours or so, and without any debilitating pain.[21] The symptoms in his back of feeling “uncomfortable” and “tired, weak and sensitive” for a period of time after such driving do not accord with anything other than most people’s experience of driving all day for two days. These symptoms are inconsistent with the level of his claimed incapacity, or a serious injury to the lumbar spine.
[21]T63, Line (“L”) 5
46Mr Silva relies heavily on an affidavit of Remy Monro, sworn 28 September 2022, to establish that he had ongoing symptoms in the period of nearly five years from 2012 to 2017. There is otherwise almost a complete lacuna of evidence as to what Mr Silva was doing during this period, what symptoms he had, where he was living, the status of his relationship with his wife, the extent to which he was performing as a percussionist, or where he was living between the date of injury and 2014, when he began studying a degree in audio production at the SAE Institute in Bryon Bay.
47The extent of Mr Monro’s evidence is that, on the basis of his time as a roommate of Mr Silva in 2014 and 2015, and doing some classes together, Mr Monro found out that Mr Silva had a back injury. He apparently observed him “on occasions” in pain; and spoke to Mr Silva on a number of occasions about lower back pain. The evidence extended to “some occasions when his back pain was so bad that he spent extended periods of time in bed”.[22]
[22]PFACB 87 at paragraph 9
48There is no evidence as to the circumstances of that pain,[23] the frequency, or duration of any periods of time in bed.
[23]Other than Mr Silva’s evidence that he had done something “stupid”: T64, L22
49Mr Monro was not cross-examined. As stated in Petrovic v Victorian WorkCover Authority:[24]
“Much was made in argument by the applicant about the respondent’s failure to cross-examine the applicant’s father. The significance of this point, however, has to be considered in light of the way applications for leave under s 134AB(16)(b) of the Act are conducted. The procedure was described in Woolworths Ltd v Warfe, as follows:
‘[T]he application is brought by originating motion. The plaintiff’s evidence in chief is not led viva voce, but, rather, is contained in an affidavit. Ordinarily, the only supplementation of such evidence is by way of short oral evidence, bringing the plaintiff’s situation up to date. The plaintiff is then cross-examined, sometimes at some length. Most, if not all, of the medical evidence, is put before the court by the tendering of the reports of various medical practitioners, who have treated or examined the plaintiff. While it is not uncommon for some of the doctors to be cross-examined, ordinarily the large majority of the medical practitioners, whose evidence is put before the court, are not cross-examined. Other material — including rehabilitation reports — are also usually tendered. At the end of the day, the trial judge is thus left with a large mass of material, some of which, frequently, is quite irreconcilable.
The procedure, which I have just described, is, in large measure, a reflection of the fact that a serious injury application is preliminary in nature, albeit that an adverse finding against a plaintiff is, in effect, conclusive of the plaintiff’s rights. The preliminary nature of the proceeding generally has the effect that the hearing of a serious injury application is not conducted in the same manner as the trial of a common law claim for damages.’
While there may be cases where the failure to cross-examine a witness who gives independent corroborative evidence in support of an application under s 134AB(16)(b) of the Act is significant so far as the result of such an application is concerned, the present is not such a case. As was observed by McHugh and Gummow JJ in Appellant S106/2002:
‘In a dispute adjudicated by adversarial procedures, it is not unknown for a party’s credibility to have been so weakened in cross-examination that the tribunal of fact may well treat what is proffered as corroborative evidence as of no weight because the well has been poisoned beyond redemption. It cannot be irrational for a decision-maker, enjoined by statute to apply inquisitorial processes (as here), to proceed on the footing that no corroboration can undo the consequences for a case put by a party of a conclusion that that case comprises lies by that party.’”[25]
(Footnotes omitted.)
[24][2018] VSCA 243
[25]Petrovic v Victorian WorkCover Authority (supra), paragraphs [77]-[78]
50The observations of Mr Monro are at a high level, and, whilst consistent with some type of back condition, do not overcome the lack of evidence from Mr Silva about his circumstances over a period of five years from 2012 to 2017 between medical treatment; and they do not assist Mr Silva as to causation. I do not consider the failure to cross-examine Mr Monro to be particularly significant in this case.
51My finding overall as to Mr Silva being an unreliable witness was formed after considering his evidence in the witness box over the course of two days, and the opinions of his own doctors following review of the surveillance videos taken 14 March 2020.
52Upon viewing the surveillance material, Dr Ralph Poppenbeek commented that “Mr Silva’s limitations and incapacity are not as severe as I initially assumed them to be”;[26] and Mr Garry Grossbard that there was “a discrepancy in the physical findings between my formal examination and the surveillance video. This does not suggest Mr Silva did not have an injury but it may represent a degree of misrepresentation of the effects of the injury.”[27]
[26]PCB 60
[27]PCB 41
53Mr Silva appeared to me to demonstrate even greater physical capacity in the two additional videos shown to the Court, uploaded to YouTube on 11 March 2020, which have not been shown to Dr Poppenbeek and Mr Grossbard. It is difficult to imagine that the plaintiff’s application would have been assisted had his own medical legal witnesses been given the opportunity to comment on this additional footage. I do not, however, have the benefit of this further evidence.
54There are a number of other examples of the plaintiff’s evidence which were unsatisfactory. The first questions asked of Mr Silva in cross-examination related to his pre-incident history of back symptoms, and he agreed that he had suffered sciatica before 2012, “some years before”, that was work-related. His evidence under cross-examination was that he experienced sciatica on “one occasion” and that it was “mild”. He failed to disclose this condition to Dr Ralph Poppenbeek,[28] who records no history of prior back injury before 2012. In his second affidavit, he says, “I do not recall saying I had sciatica”.[29]
[28]T21
[29]PCB 17 at paragraph 5
55When shown a progress note recording a past history of low back pain in 2011 during the Christmas break prior to the incident in January 2012, he said he did not recall it. He later changed his evidence during the course of a lengthy re-examination to say that he had had some back issues whilst working at the same warehouse with the employer, which he described as “tiredness after a hard day’s work”.
56There were other instances of the plaintiff changing his evidence, to the extent that I hold serious concerns that he did so deliberately, with a view to giving evidence that he thought would assist his case rather than a true account of his past history.
57As referred to above, Mr Silva also gave somewhat improbable evidence that at the Alphington Sports Medical Clinic in January 2012, practitioners had told him he had suffered a hairline fracture in his low back, and that this was demonstrated on a scan. This scan has not been produced. This diagnosis is not recorded in the notes. I agree with Mr Stanley’s submission that this evidence must be an exaggeration of the diagnosis Mr Silva received as to his injury, and to suggest that a scan exists disclosing this is somewhat fanciful evidence.
58In another instance of inconsistent evidence, Mr Silva told Dr Poppenbeek that since his injury he had “only been out of Australia for one month” in about 2018/2019.[30] It emerged in cross-examination, however, when confronted with extracts from his passport, that Mr Silva had in fact travelled to Canada twice. Facebook photographs depict a smiling and relaxed traveller, and evidence that he undertook a number of activities, including boat trips, whilst on one of these trips. The extent of his discomfort whilst travelling extended to feeling “uncomfortable” when seated on the plane; and that when he arrived he was “fatigued”. He said after a 20-minute boat trip, his back felt like he had just done a hard day’s work, and that he had to lie flat for up to two days after flights. I have some reservations about this latter evidence, including because Mr Silva was not being frank about the number of trips that he had in fact taken, and the extent and nature of his travelling in Australia.
[30]PCB 58, 63
59Mr Silva he has been able to drive at least twice,[31] probably three times – although again he changed his evidence in relation to the extent of his travelling by car – in recent times to Melbourne: to attend a medical appointment with Mr Grossbard, to see his family, and to perform gigs. In order to drive from Byron Bay to Melbourne, and return, Mr Silva told me that he travelled on consecutive days for up to 12 hours a day with minimal symptoms. I find this evidence to be inconsistent with his claimed level of capacity.
[31]T61
60Further, the plaintiff gave exaggerated evidence as to the extent of his treatment with psychologist, Mr Carl Moore, including that he had seen him regularly for many years. The evidence demonstrated that he had seen him on only six occasions, and without referral to a psychiatrist.
61A significant aspect of this man’s unreliable histories to doctors and evidence generally relates to his involvement in various bands.
62Video evidence tendered establishes that Mr Silva performed two festival gigs on separate occasions in New South Wales within about a week in early March 2020. Mr Silva then drove to Melbourne after the second gig to attend an appointment with Mr Grossbard on 18 March 2020.
63Mr Silva made no reference in his history to Mr Grossbard of his uninhibited performance in a band as a percussionist only days earlier, involving vigorous drumming, movement, bouncing and even leaping high into the air. He was paid for this festival gig, yet he told Mr Grossbard that he “has not returned to work since his job was terminated (in 2012)”. His history to Mr Grossbard was that his pain increases with activity or if he sits for long periods of time, and that he “feels uncomfortable after about half an hour” driving a car. Despite this history, he made no complaint to Mr Grossbard of any exacerbation in his pain from either the very recent festival gig or the two day drive to attend the appointment.
64This history significantly comprises the opinions of Mr Grossbard, whose view was that:
“Currently this man’s symptoms are exacerbated intermittently. These exacerbations are usually activity-related and take some days to settle.”[32]
[32]PCB 39
65The plaintiff had just performed numerous gigs and then driven to Melbourne, without any exacerbation.
66The most likely explanation for Mr Silva not mentioning to Mr Grossbard the performances as a percussionist is that Mr Silva is completely unrestricted in his capacity to engage in this pre-incident pastime. Likewise, that he experienced no significant symptoms after the drive to Melbourne.
67Less than three months after performing at the festival gigs and performances that Mr Silva disclosed to the Court, he gave a history to Dr Poppenbeek in June 2020 that:
“He also played drums prior to his injury, but not since. He has not been able to find work as a musician ...
…
Recreational activity includes playing drums and music production, but he is not able play drums now, because of his back problem.”[33]
[33]PCB 48-49
68This plainly is untrue.
69Dr Poppenbeek also states:
“... Mr Silva’s main social/recreational activity was playing drums and at the present time he is significantly restricted and would probably not be able to do this for more than about 10 minutes at a time.”[34]
[34]PCB 52
70This opinion was expressed without the benefit of a full and frank history.
71I note that, once he became aware that there was surveillance video of him performing as a percussionist, Mr Silva stated to Dr Poppenbeek in April 2021 that he had “no recollection of telling [Dr Poppenbeek] that he had stopped playing percussion instruments”.[35] I regard that as self-serving, and also likely to be untrue. I was surprised to read that Dr Poppenbeek was prepared to revise his history in his report dated 23 April 2021, despite referring to Mr Silva’s history of playing drums on at least four occasions in his earlier report. I place little weight on Dr Poppenbeek’s explanation that he “probably assumed that because he had not been able to obtain work as a music engineer, he had also not worked as a drummer”.[36] I find Dr Poppenbeek’s later opinion that “I think his ability to perform on stage could be an indication of the episodic nature of his back problem”[37] to be speculative as it was not based upon a frank history from Mr Silva, and I disregard it.
[35]PCB 55
[36]PCB 55
[37]PCB 58
72I also disregard Dr Poppenbeek’s opinion that “the surveillance suggests that Mr Silva’s injury is episodic, with relatively good function in-between episodes as he has described to me”[38] on the basis of my findings as to Mr Silva’s credit. At the very least, Mr Silva’s history to Dr Poppenbeek is a gross exaggeration. The activity depicted in the video evidence shown to the Court is completely inconsistent with the plaintiff’s own account of his activities and level of capacity as a consequence of the incident in 2012.
[38]PCB 61
73I am further supported in my findings as to credit on the basis of the presentation of the plaintiff as a witness over two days. His evidence was notable for the predominance of unresponsive monologues and self-serving, vague and uncertain evidence. Examples include his non-responsive answer to a question as to why, in circumstances where a general practitioner was encouraging him to return to work, he changed general practitioners; and his vague answers in relation to his efforts to look for work. He was invited by Mr Stanley to produce a single written application for work over the past few years, but was unable to do so.
74I find Mr Silva’s evidence in many respects to be unreliable. Accordingly, his evidence of impairment and impairment consequences and causation-related matters must be considered carefully by reference to the objective evidence in respect of each claimed serious injury.
Medical evidence
75Mr Silva’s application relies heavily on the opinion of Dr Ralph Poppenbeek. In terms of causation, Dr Poppenbeek’s opinion relies in turn upon Mr Silva’s history of five years of treatment prior to the “exacerbation” incident in June 2017. I reject this history, and accordingly the opinion of Mr Poppenbeek on causation.
76More generally, I accept Mr Stanley’s submission that Mr Silva habitually exaggerated the extent of his symptoms both to various doctors and to the Court. I am not persuaded that the experts upon whose opinions he relies are sufficiently aware of this lack of treatment, in order to reach reliable conclusions as to causation. Much of the evidence upon which Mr Silva relies is compromised, for the reasons given by the VWA.
77It did not assist Mr Silva’s application – relying upon injury to the lower back, with a consequential psychological injury – that there were no up-to-date radiological reports. The initial CT lumbar spine on 28 July 2017,[39] makes findings of:
“Posterior and left paracentral disc protrusion at L5/S1 effacing the lateral recess causing impingement of descending left L5 nerve root. Foraminal stenosis at L5/S1 bilaterally causing mild impingement of existing L5 nerve roots left worse than the right.”
[39]PFACB 30-31
78The most recent radiological investigation, being an MRI scan conducted on 11 December 2019,[40] finds:
“Left L5 foraminal narrowing and left L4/5 subarticular recess stenosis, both potentially compressing the left L5 nerve root.”
[40]PFACB 32
79A very significant difficulty confronting Mr Silva’s application in terms of causation is the five-year gap in treatment before the incident in 2017. Without symptoms in this period, there would appear to be no, or no sufficient, link between the initial injury and his current condition.
80Mr Silva’s credibility is critical to a finding by this Court of the presence of ongoing symptoms between July 2012 and June 2017. Having regard to the unreliability of his evidence in general, I do not accept his evidence as to the extent of any ongoing symptoms during this period. The objective evidence, including a Medicare statement, shows that he had no treatment at all for his back for nearly five years, which was not adequately explained by Mr Silva. Not attending a doctor for the severe, debilitating pain requiring days in bed a time he claims to have suffered during this period is inherently improbable in the context of his other attendances on his general practitioner for relatively minor issues at various times, such as ear syringes and a cold. In those circumstances, the causal link between his work-related incident and his current presentation has not been established.
81I find that as at the date of the hearing of his application, Mr Silva does not have a compensable injury.
82For completeness, I turn to the alternative scenario in which Mr Silva has established a compensable injury that is productive of consequences as at the date of the hearing.
Consequences
83Mr Silva’s initial treatment involved attendance upon a general practitioner clinic and physiotherapy, and he currently requires regular medication in order to manage his physical condition.[41] His back symptoms may interfere with his life, including some difficulties with intimacy.
[41]PCB 89
84There has been no referral, however, to a treating orthopaedic surgeon, or evidence from his treating doctors of any suggestion that spinal surgery is indicated. The latest MRI scan in 2019 does not record the presence of the disc bulge evident in 2017. The medico-legal evidence is that surgical intervention is not indicated due to the nature of the symptoms being experienced.
85Overwhelmingly, the doctors have found a retained capacity for employment, which the plaintiff simply has not exercised.
86In terms of the plaintiff’s retained capacity, the position seems clear. Since his injury, at the age of forty-one, he has:
(a) demonstrated his aptitude to commence and complete an SAE Degree in Music Engineering;
(b) relocated to Byron Bay as part of that lifestyle and career choice;
(c) established a long-term relationship, although since ceased, cohabiting with his girlfriend;
(d) driven to Melbourne from Byron Bay on a number of occasions in two days and returned within the same timeframe;
(e) travelled to Canada on two occasions;
(f) commenced and promoted his own music through a brand, Cisco Music;
(g) undertaken some teaching – both a percussion group and some individual students;
(h) been able to participate as band leader in a number of parades, carrying drums and performing; and
(i) performed as a percussionist regularly, up to three times a week, with the band Map Stone and with another outfit known as Sunset Burritos. He is able to carry his own equipment, as the surveillance videos depict, without any issue, including heavy drum-stands and other equipment. When he performs, he jumps off the ground, and is, on his account, elated.
87This level of retained capacity does not bespeak of serious injury.
88I accept the VWA’s submission that the various activities of a recreational nature Mr Silva says are compromised or no longer performs are characterised by sport or other activity carried out sometimes many years prior to injury, and which were not current activities as at 2012. For instance, Mr Silva’s “feeling” – untested – that he might no longer physically cope with golf, which he had only played every few years on a few occasions, is not a significant enough consequence. Nor is no longer swimming in the ocean anymore because he lacks fitness and confidence; or no longer performing with Map Stone because the band is no longer performing.
89Mr Silva is an experienced percussionist, and should his employment-related injury prevent him from enjoying this recreational pursuit, then I would regard this as very significant. The evidence discloses, however, that now, at nearly 50 years of age, he is still able to perform at a high level with great energy and enthusiasm, and continues to do so up to three times a week. The evidence before me does not demonstrate that there is a significant difference in his participation in this recreational pursuit before and after the incident, other than as a result of other life issues, and that there are limited opportunities available to perform in Byron Bay.
90I find that Mr Silva’s low back injury is not serious when compared with other cases in the range of possible impairments or losses of spinal function, including those that do not come before the Court.
Loss of earnings
91Mr Silva conceded that he has both the capacity and the experience to take part in the labour market in a very wide variety of occupations, including any light work, or other sound and music-related positions for which he is presently qualified.
92As a man with a broad set of work skills and significant capabilities nominated by the plaintiff himself,[42] the medical evidence supports he has a significant retained capacity.
[42]PCB 67
93His own evidence sums it up perfectly: he has an interest in having his own business in the music industry, but “though I like this idea in theory, I have not made any active plans to start a business”. Mr Silva appears in many respects to be quite content with his present circumstances in Byron Bay. It is likely that the employment market in Byron Bay is also a hindrance.
94I find that his current capacity for suitable employment is not being exercised, either because he does not wish to engage in employment, or that it is not available in his area. Richter v Driscoll,[43] and the later case of Harris v DJD Earthmoving Pty Ltd,[44] emphasise the importance of focussing on the physical capacity in terms of the assessment of whether the plaintiff has a capacity for suitable employment. His work capacity is endorsed throughout the materials, including by Mr Grossbard,[45] working as an audio engineer; his own treating general practitioner, Dr John Holmes, as a warehouse worker and driver on a full-time basis provided he avoids heavy work;[46] Dr Graeme Brazenor certified him as clearly fit to work full time until normal retiring age in any employment role subject to relatively modest restrictions; and Dr Marcus Navin, occupational physician; Mr Grossbard and Dr Poppenbeek all support a return to work, including the options in a CoWork report relied upon by the defendant.[47] Mr Grossbard believes Mr Silva has work capacity for sedentary duties and could certainly pursue much of his music career.[48]
[43][2016] VSCA 142
[44][2016] VSCA 188
[45]DCB 40
[46]PCB 33
[47]DCB 52
[48]PCB 45
95I accept the VWA’s submission that the plaintiff has a “light work back” which is not enough to prevent him from working to at least 60 per cent of his pre-injury capacity.
96A Summary of Earnings was tendered by the plaintiff, which included:
| Year Ended | Payer (excluding Centrelink) | Gross Income from personal exertion |
| 2010 | N/A | $Nil |
| 2011 | · Optimum Marketing Pty Ltd - $1,014 · Harry the Hirer Pty Ltd - $1,694 · The Trustee for Unger Catering Trust - $2,949 · GIG Power Pty Ltd - $256 · The Trustee for Good Bar Trade Unit Trust - $4,111 | $10,024 |
| 2012 | · Cosh Outdoor Living Pty Ltd - $43,605 | $43,605 |
| 2013 | · The Trustee for Rockview Family Trust - $7,220 · The Trustee for Lucas Group (Vic) Unit Trust - $8,942 · Interstate Enterprises Pty Ltd - $10 | $16,172 |
97Mr Silva has not worked since 2013.
98There was no attempt by either party to identify the earnings before the claimed injury which most fairly represent his pre‑injury or “without injury” earnings. There is no evidence his “with injury” earnings represent at least a 40 per cent reduction in his gross “without injury” earnings on the basis of the suitable employment identified in the CoWork report or otherwise.
99His claim in respect of loss of earnings fails.
Psychiatric injury
100Mr Silva also claims to have sustained a severe psychiatric injury as a result of his physical injury. Without a compensable injury to the spine, the psychiatric injury fails.
101On the basis that there is a compensable injury, I find that whilst the plaintiff has an adjustment disorder with some depression and anxiety, it does not satisfy the narrative test. He has had only six sessions with psychologist, Mr Moore, and is presently on a sub-therapeutic dose of Endep. He has not been referred to a psychiatrist. I reject Mr Silva’s oral evidence that he has had treatment from a psychologist for twelve years,[49] it being unsupported by objective evidence.
[49]T66, L5
102Whilst he gave a past history of suicide attempt, there is no independent evidence of this, including any attendance on a doctor at the time.
103The manner in which he gave evidence was also inconsistent with a severe mental condition. He was able to understand complicated issues, and in fact regularly gave monologue type answers, which I formed the view were in part to facilitate him considering the evidence that he might choose to give which would best assist his case.
104There are none of the features of a psychiatric condition which might render him incapable of leaving his house or functioning within society.
105Whilst Dr Serry’s report[50] is supportive, he was not initially shown the surveillance footage, and entirely relies, as he notes at the start of his report, on the plaintiff’s history. For the reasons set out above, I find Mr Silva’s histories to doctors to have been unreliable.
[50]PCB 70
106I find Dr Serry’s ultimate conclusions to be unsupported by adequate reasoning as to why Mr Silva’s current psychiatric condition gives rise to a total incapacity to undertake both his pre-injury duties and any suitable employment. Mr Silva himself did not indicate to psychiatrist Dr Dush Shan that he was not capable of work presently for mental health reasons.[51] The summary set out above of what Mr Silva has retained is also contraindicative of a severe mental condition giving rise to total incapacity.
[51]DCB 39
107For the reasons referred to above, I am not able to rely upon Mr Silva’s subjective reports of psychiatric symptoms, and the objective evidence does not establish that the plaintiff has suffered a severe psychiatric injury.
Conclusion
108The plaintiff is no longer suffering a compensable injury, and, accordingly, his claims under both paragraphs (a) and (c) must be dismissed.
109Should there be a persisting compensable injury, I am not satisfied that the consequences to the plaintiff under either paragraph (a) or (c) satisfy the statutory test.
110The plaintiff’s application is dismissed with costs.
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