Taghar v Victorian WorkCover Authority
[2023] VCC 1159
•12 July 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Serious Injury List
Case No. CI-20-05643
| MOHAMMAD HAROON TAGHAR | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE PURCELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 June 2023 | |
DATE OF JUDGMENT: | 12 July 2023 | |
CASE MAY BE CITED AS: | Taghar v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1159 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – pain and suffering – loss of earning capacity – worker under twenty-six years of age
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:New South Wales v Moss (2000) NSWLR 536; Margriplis-Hampton v Spendwatt Pty Ltd [2022] VSCA 15
Judgment: Leave granted to the plaintiff to commence a proceeding for pain and suffering damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C O’Sullivan with Mr C Woollacott | Maurice Blackburn |
| For the Defendant | Mr C Miles | Lander & Rogers |
HIS HONOUR:
Introduction
1The plaintiff in this proceeding, Mohammad Haroon Taghar, is a now thirty-one-year-old man, married with three young children. As I shall explain, he is almost the quintessential success story of hard work and study.
2Born in Afghanistan, but living in Australia by age fifteen, the plaintiff completed Year 12, while working a part-time job at the Tip Top bakery in Dandenong (“Tip Top”). He then went on to complete several tertiary courses, while still working at Tip Top. He has an Advanced Diploma in Building Design, a bachelor’s degree in architecture from Deakin University, Geelong, and a master’s in architecture from Swinburne University, Melbourne.
3The plaintiff’s employment at Tip Top was initially through Programmed Workforce, a labour-hire company, but from approximately November 2014 was transferred to Ready Workforce Pty Ltd (“Ready Workforce”), also a labour-hire company.
4The plaintiff claimed that, throughout the course of his employment with Ready Workforce, he was required to perform heavy and repetitive lifting, and therefore suffered injury to his low back. He claimed that, from approximately late 2016 to early 2017, when under 26 years of age, he developed symptoms in his left leg and low back, from which he has not recovered.
5I have described the plaintiff as almost the quintessential success story because he has not been successful in pursuing a career in architecture. He claimed the back injury when working for Ready Workforce at Tip Top as the reason he is not working as an architect and instead has resorted to part-time Uber driving to pay the bills.
The proceeding
6In this proceeding, the plaintiff claimed to have suffered a “serious injury” within the meaning of s325 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”).
7Specifically, the plaintiff claimed to have suffered a “serious injury” by reason of a physical injury to the lumbar spine. He claimed to have suffered serious pain and suffering and loss of earnings consequences.
8The defendant accepted that the plaintiff suffered an injury to his lower back, but it submitted that any work injury was short-term and from which he recovered. In the alternative, it submitted that any ongoing work-related injury is not serious, either in respect to pain or suffering or pecuniary loss. Further, the defendant submitted that there were issues to be considered in respect of the plaintiff’s credit and the overlap between physical and psychological injuries.
9The proceeding was conducted in the usual manner. The parties tendered medical reports and documents relied on by them. The plaintiff tendered two affidavits by him and gave oral evidence.
10I have considered all of the tendered evidence and the transcript of the plaintiff’s oral evidence, but I shall only refer to them to the extent necessary in these reasons.
The issues for consideration
11In summary, the issues that arise in this proceeding are:
(a) whether the plaintiff suffers an ongoing compensable injury to his lumbar spine (“the causation issue”);
(b) the extent of any ongoing impairment and impairment consequences from any work-related injury to the lumbar spine;
(c) the plaintiff’s residual capacity for employment (which, in part, became a credit issue); and
(d) the overlap between the claimed physical injury and any emotional response (“the disentangling issue”).
The legal principles
12As mentioned, the plaintiff was under 26 years of age when he claimed to have suffered injury with Ready Workforce. His age is relevant for a consideration of both pain and suffering and pecuniary loss “serious injury”.
13It is convenient to briefly set out the relevant legal principles, which are not in dispute. The dispute is the factual findings that the Court should make and then the application of the facts as found to the agreed legal principles.
The test for pain and suffering
14In respect to pain and suffering, the plaintiff must prove that he has an ongoing physical injury to the spine (the lumbar spine) that is productive of “very considerable” impairment consequences. In accordance with well-known legal principles, this involves a value judgment as to whether the plaintiff’s impairment and impairment consequences, bearing in mind the range of possible impairments and not just those that come before the courts, meet the “very considerable” test.
15The defendant does not concede pain and suffering serious injury, but it conceded that its submissions were mainly directed to the claim for pecuniary loss “serious injury”[1] and the evidence relevant to that issue.
[1] Transcript (“T”) 67, Line (“L”) 4-7.
The test for pecuniary loss serious injury
16As the plaintiff was under 26 years of age when he claimed to have been injured, the common law test for loss of earning capacity broadly applies save to the extent modified by the Act.
Section 325(2)(b) and (c) of the Act
17In order to establish an entitlement for leave to commence a proceeding for loss of earnings damages, the plaintiff must first establish that the loss of earning capacity consequences from the compensable injury, when judged by comparison with other cases in the range of possible impairments or losses of a body function, are fairly described as being “more than significant or marked”, and at least “very considerable”, as per the narrative test set out in s325(2)(b) and (c) of the Act.
18The defendant did not “give away”[2] medical opinions it had obtained that opined that any work-related low back injury had now resolved. In the same spirit, it did not concede that the plaintiff had suffered a “very considerable” pecuniary disadvantage. It submitted that he was not really going to be a Tip Top worker, but rather he was always going to go on to be an architect, which he could still pursue, and so the first step was not satisfied.
[2] T 58, L 13-16.
Section 325(2)(e)(ii) of the Act
19Returning to the legal principles, upon establishing “very considerable” loss of earning capacity consequences, the plaintiff must then satisfy the statutory formula as contained in s325(2)(e)(ii) of the Act, namely, whether he will, after the date of the hearing, continue permanently to have a loss of earning capacity that will be productive of a financial loss of 40 per cent or more.
20The parties agree that s325(2)(e)(ii) requires the application of the common law principles relevant to the assessment of loss of earning capacity.[3]
[3] See as an example, New South Wales v Moss (2000) NSWLR 536.
21It is perhaps this aspect of the proceeding that is the real contest and, in my view, arises because of the way the plaintiff chose to put his case and the evidence he chose to put before the Court. That is because I am required to consider the evidence of the plaintiff’s residual earning capacity and the capacity that he would have had had he not been injured.[4]
[4] Margriplis-Hampton v Spendwatt Pty Ltd [2022] VSCA 15.
22An assessment of loss of earning capacity, especially for a young person, may often have to be a broad assessment made based on imperfect evidence. But it is still incumbent on the plaintiff to put sufficient evidence before the Court. As the defendant correctly submitted, the plaintiff has got the burden of proof. He went on to obtain his master’s degree in architecture post-injury and shown himself capable of achieving high tertiary qualification. Yet he gave only limited reliable evidence of his career ambitions, what was involved in the profession of an architect, the level of earnings he anticipated, his return to work after the incident, or why he cannot work at all now as an architect. There is a flavour to his evidence that ‘near enough was good enough’ and that it is up to the defendant to disprove he does not have a “serious injury”, which, of course, reverses the onus.
The plaintiff’s evidence
23At this point, it is convenient to consider the plaintiff’s evidence. That evidence was given initially in two affidavits sworn by him on 28 July 2020[5] and 5 May 2023.[6] In my opinion, his affidavits failed to provide sufficient evidence on key issues.
[5]Plaintiff’s Amended Court Book (“PACB”) 12.
[6]PACB 19.
24But first, before dealing with his evidence, of note is the lack of any lay affidavit from the plaintiff’s family, friends, and colleagues from his architecture studies. The lack of such evidence does not of itself mean I should reject his evidence, and often lay evidence is not needed. But, as raised with his counsel, in circumstances where his affidavits provide very little detail about what he had hoped to do with his architecture qualification, or what earnings he expected to achieve with a master’s in architecture, or why he can’t do that work now, the failure to provide relevant lay evidence is, to me, a significant omission.
25During his oral evidence, he described applying for many jobs, and yet none of that information was in his affidavits. Other than the fact that he was studying architecture, he gave no useful evidence in his affidavits of what he had hoped to do had he not been injured, save that in his first affidavit he said “I planned to be working as an architect by now. I have wanted to be an architect for many years”.[7]
[7] PACB 17 at paragraph [43].
26He gave no evidence of what type of architecture he was interested in, or what he had in mind once he completed his studies. He gave no evidence in his affidavits of the salary that he had hoped to achieve.
27He did describe in his second affidavit how he commenced a job in mid-2022 as an assistant designer for a building company, Oriana Building Designs (“Oriana”).[8] His evidence of how he obtained that job or what was involved was scant. He did not even set out the rate of pay from Oriana, or how that compared to the potential salary of an architect.
[8]PACB 20 at paragraph [8].
28It is possible (but unlikely) that the plaintiff does not know how much an architect earns, but as I shall come to in a moment, the evidence suggested that he had friends from university who qualified as architects and who could have given that evidence. At the very least, he could have made some effort to give proper evidence in his affidavits of his career ambitions, his efforts to find work, the salary from Oriana and what the job involved.
29In general, there is a flavour in the plaintiff’s affidavits that he considered it good enough to discharge his evidentiary onus by providing limited and vague before and after evidence of his studies, qualifications, and efforts to obtain work post-injury.
30The gap in the evidence was attempted to be plugged by him with a report from Flexi Personnel dated 8 May 2023,[9] described as an “Earnings Report”. Whether that report contains expert evidence is a matter for debate, but the author of the report used information from the internet from Hays Salary Guide and Talent.com to extract salary information and rates of pay for various occupations, including as an architect. But the report does not contain any useful evidence as to the reliability of the Hays Salary Guide or Talent.com, or any analysis at all as to how either of those sources relate to the plaintiff, his qualifications, and ambition.
[9]PACB 156.
The affidavit evidence
31Returning to deal in more detail with the plaintiff’s evidence, in his first affidavit, he described the onset of symptoms in his lower back at Tip Top and his treatment thereafter. He described conservative treatment, with specialist referral and pain management.
32Relevant to the issue of work capacity, in the first affidavit, the plaintiff gave details of his tertiary qualifications. He described how, in March 2020, he commenced studying a Master of Architecture through Swinburne University and of struggling through that course because of pain and difficulty sitting for long periods.[10]
[10]PACB 15 at paragraph [29].
33In the first affidavit, the plaintiff skipped over any evidence about completing his bachelor’s degree in architecture. Similarly, in his second affidavit, he said nothing about that course.
34It transpired during his oral evidence that, during 2017, when the plaintiff first went off work, he was then studying (or perhaps about to commence – it is unclear) his bachelor’s degree at Deakin University in Geelong.[11] He was then living in Narre Warren and travelled to Geelong two or three days a week, and studied the other two or three days a week from home, for a total of about forty hours a week devoted to the bachelor’s degree.[12] The trip to Geelong involved about one-and-a-half hours of travel each way.
[11]T 21, L 13.
[12]T 21, L 15-27.
35He accepted, during oral evidence, that he completed both his bachelor’s degree and his master’s degree within the time expected for a full-time course load. There is no evidence that his back symptoms caused him to be unable to complete his course work on time. He did say in his first affidavit that –
“In March 2020 I started my masters in architecture through Swinburne University. It is supposed to be a two-year course. Since the coronavirus restrictions were introduced, the course has gone online. I am struggling a lot with the course. Because of my pain, I have difficulty sitting for long periods and my pain affects my concentration significantly. I am also finding it very hard to study at home with a young family”.[13]
[13] PACB 15 at paragraph [29].
36That evidence must be considered in the context that he completed his studies on time and without any allowance sought for his claimed back injury.
37Returning to the unsatisfactory nature of the affidavit evidence, the plaintiff was examined by Dr Joseph Slesenger, specialist occupational physician, on 9 July 2018.[14] I shall return to discuss his opinion in due course, but Dr Slesenger obtained a history of the plaintiff attending university in Geelong three times a week during 2017 and anticipating that, when university resumed in 2018, he would be driven by friends to university in Geelong.
[14]Defendant’s Court Book (“DCB”) 66.
38It is an obvious omission that there is no evidence from the friends who drove the plaintiff to university and, presumably, also attended Deakin University in Geelong and possibly undertook the same course of study as him. It is a curious omission both as to the plaintiff’s difficulties in attending university (if any) and as to what career paths his friends have chosen, and relevant rates of pay, which, to me, is probably more reliable evidence than sources extracted from the internet.
39In his affidavits, the plaintiff set out restrictions for day-to-day activity. He was challenged during cross-examination in the broad about his restrictions for sitting and standing, with the focus on work capacity. He was not specifically challenged on his evidence of the pain and suffering consequences as set out in his affidavits.
40Broadly regarding pain and suffering consequences, as mentioned already, in his first affidavit, he said that being an architect required a lot of concentration and energy and coming up with new ideas. He said his pain and tiredness affected his concentration and energy a lot, and that he could not cope with long periods of sitting. He said he tried some part-time Uber driving in late 2019 and early 2020, was able to cope with “a few short trips” but was no longer Uber driving.
41In his oral evidence he was taken to the financial records of his Uber driving. He accepted that for the 2019/2020 financial year he had gross earnings of $17,572 and he drove trips totalling 5,938 kms.[15] While that may not be a lot of Uber driving, it tends to suggest he did more than a few short trips. Broadly, the plaintiff’s overall evidence of Uber driving was vague and hard to assess for its accuracy.
[15] T 14, L 1-5.
42In the second affidavit, he described the job with Oriana as follows:
“… I was keen to see if I could cope with the work and was excited when I started the job. Unfortunately I could not cope. The job involved long periods sitting at a desk and this led to my back and leg pain increasing. I could not constantly get up and move around or I would not get my work done. The pain would build up during the day and then I would have a lot of trouble sleeping at night causing me to feel very tired at work the next day. I tried to continue in the job for a bit less than two months but then realised I would not be able to continue, and I resigned.
The realisation that I could not cope with designer/architecture work because of my back and leg pain was a huge disappointment for me. I had studied so long and invested so much to get my qualifications. I had high hopes for my career. I feel now that it has been a waste because of my back injury.
In about late 2022 I resumed part-time Uber driving and continue to do that at the time of swearing this affidavit. My hours and days that I work are inconsistent and depend on my pain levels. Typically I drive for about 12-15 hours per week. I take regular breaks because I cannot sit in the car for long periods without getting a lot of increased back and leg pain. When the pain increases, it becomes distracting and I do not feel safe driving. The upside to Uber driving is that I can work when I want and choose to accept or reject jobs depending on how I am feeling. In addition to the income from Uber driving, I also receive Centrelink payments.”[16]
[16]PACB 20 at paragraphs [8]-[10].
The plaintiff’s oral evidence
43Turning, next, to the plaintiff’s oral evidence and staying with his work for Oriana, it came out in cross-examination that in the five months before he got that job, he drove approximately 1,000 kms of Uber trips in each of those months.[17] He continued to drive Uber, usually on a Friday and a Saturday night, from late afternoon until sometime between 2am and 4am. He also usually drives one other day or afternoon shift, such as 11am until 6pm. A crude calculation of the hours involved in those three shifts suggests that he works more than 12-15 hours per week in Uber, although his explanation for that would be that he takes regular breaks, including meal breaks with other friends who drive Uber.
[17] T 15-16.
44When he went for the job at Oriana, he told them that he had a trip booked to the United Kingdom. That trip was a planned holiday to the United Kingdom for his brother’s wedding. Oriana employed him knowing he had the trip booked and would need time off.[18] He was paid $850 per week by Oriana for a 9am to 5pm job.[19] He worked full-time for two months and did not take any sick leave. It was put to him that he worked without restrictions and worked like a normal draftsman, and he agreed. He did not have any accommodation made for him, such as a sit/stand desk.[20] He performed that job until he left for the trip to the United Kingdom.[21] He was away some three-and-a-bit weeks in the United Kingdom.
[18] T 33, L 17-27.
[19]T 32, L 19-22.
[20]T 32, L 22-29.
[21]T 33, L 30.
45It was put to him that, after his return, Oriana contacted him to ask what was going on and he then resigned, effective 27 September 2022. He said “[n]o, that didn’t happen”.[22] He then agreed that he came back and then resigned, but he said he did not resign straight away. He said he resigned later, after he went to the office, saw the boss, spoke to him and told him he had this condition, and his doctors were telling him to take a break.[23]
[22]T 34, L 23-24.
[23]T 35, L 1-2.
46The plaintiff attempted to suggest he had discussed his back injury with Oriana before he went to the United Kingdom. But it was put to him that the first time he told them that he could not return to work because of a back injury was after he returned from the United Kingdom, and he agreed.[24] The circumstances of ceasing work at Oriana and the reason for ceasing work remained muddy by the end of his evidence.
[24]T 35, L 27.
47The plaintiff gave evidence that he took the draftsman job at Oriana because, notwithstanding his qualifications, he could not get a job as an architect and he wanted to get into the industry to gain some experience.[25] He got interviews, but he could not get a job as an architect.[26]
[25]T 36, L 1-3.
[26]T 36, L 29.
48Next, the plaintiff gave evidence that, since stopping work for Oriana, he had not looked for jobs commensurate with his qualifications. He had looked for alternative positions, like hybrid jobs, something where he may be able to work from home, but he had not been successful. It was put to him that a work-from-home arrangement would be ideal, perhaps with a bit of work from home and a bit in the office, and he agreed.[27] He also agreed that a sit/stand desk would be ideal.
[27]T 37, L 9-11.
49It was suggested to the plaintiff that he could open his own business, and he said:
“You need a lot of experience. I'm not in a position to open a business straightaway.”[28]
[28]T 37, L 24-25.
50The plaintiff then explained that his qualifications entitled him to design a house or building, whatever, and that it was both domestic and commercial.[29] He said, if he was fit and healthy, that he would see himself working in either, or both, commercial and residential. He said:
“I'm happy to work anywhere. If I wasn't sick, I think I would have been in a leading role by now.”[30]
[29]T 39, L 1-2.
[30]T 39, L 6-8.
51Pausing, it is unclear what the plaintiff meant by a “leading role”.
52In addition to the trip to the United Kingdom, it transpired that, in 2019, he had travelled to Canada and stayed there for a month. Of course he is perfectly entitled to travel overseas, even with an injury, but the evidence of those long trips indicates a better capacity to sit and to socialise than explained to some of the doctors and in his affidavits.
53In re-examination, the plaintiff was asked:
Q:“Why can't you get your first architecture job?---
A:Well, first, I don't have the experience to get into the field. I have tried it. I couldn't cope with the pain. Mentally, not clear enough, because architecture - like he said, a draftsman can design a house, you know draw the plans and all that. But to actually design and start from scratch you need to have a clear mind, you need to be focused. You need to, you know, mentally be in the moment to actually come up with some sort of idea because what we do is provide a solution to a problem, following the brief that's been given, and how do you do that? You need to have a peace of mind, be pain-free, so then you can actually come up with something.”[31]
[31]T 40, L 12-24.
54He was asked, further:
Q:“You said you've looked and you've applied for architecture roles. Have you seen any or are you aware of any that involve you working from home?---
A:I have seen some advertisement, I have applied, but I didn't get the job.
Q:All right. His Honour asked you have you applied for any architecture jobs since the time at Oriana and your answer was ‘no’, I believe; is that right? Since Oriana?---
A: Since Oriana, no. Before Oriana, yes, I have.
Q: Okay. And why haven't you applied for any jobs since Oriana?---
A:Because I have tried Oriana and I lasted only two months and I don't want to also, you know, ruin my reputation, as in be rejected again and again. Even the one that I applied, it made me so, you know, depressed, I would say, when I couldn't get, as if like my goals and dreams have been just collapsed and there is nothing to look further to.
Q:You agreed that you were able to complete your studies; firstly, your undergraduate degree and then your masters?---
A: Yep.
Q:And you've told His Honour about your time working at Oriana. How did working at Oriana compare with studying to complete your undergraduate and your masters degrees?---
A:Working at Oriana was a desk job, so 9.00 to 5.00, half an hour break, and you need to be just fully focused and drawing the plans. Whereas studying from home or at uni, it was more flexible; I could take a break, I could go for a walk, I could stand, sit, whatever.”[32]
[32]T 41, L 4-31.
55In response to earlier cross-examination about his current work driving Uber, in re-examination the plaintiff gave the following evidence:
Q:“When you're working Uber - when you're driving Uber or available to drive Uber, are you out in the car the whole time? How does it work?---
A:So with Uber, I - when I'm having breakfast I go online, or whenever I tend to go out, I go online from my home. It happens, most of the time I get a job from my home, five minutes, 10 minutes away, in that area. I go pick up the rider and drop them off. And then I'm out - I'm out for eight hours, I would say, eight hours, but I only work for three to four hours. So I take break, you just sign off, you know, do whatever you want. Then log in, then sign off. It's like that. Sometime even in three hours you don't get a trip, sometime in the one hour you get two trips or three trips. It's like that.
Q:And what do you do in those hours if you're not getting a trip?---
A:I'm in my car. I get out if I'm not - I want to walk, whatever, grab a coffee. Most of the time, at dinnertime I catch up with some of my friend who also does full-time Uber, and we go out for dinner.”[33]
[33]T 44, L 6-24.
56The plaintiff gave evidence that he still goes to the gym one or two times a week. He does some walking on a treadmill, cycling and swimming and some light weights. He gave evidence of using Neurontin to help with the pain and his mental health.[34]
[34]T 47, L 4-5.
57In a consideration of what is lost it is relevant to consider what is retained. The impression is of a young man who still engages in social and recreational activity. His evidence of driving Uber appeared to suggest it had a social or collegiate aspect to it.
The medical evidence
Dr John Formoso
58Turning, next, to the medical evidence and commencing with the plaintiff’s general practitioner, Dr John Formoso.
59Dr Formoso provided several reports setting out the plaintiff’s attendances upon him, the treatment provided, and his opinion regarding the plaintiff’s injury and incapacity.
60The first report from Dr Formoso is dated 23 September 2020, although it refers to an earlier report not in evidence. In any event, in his report of 23 September 2020,[35] he said the plaintiff had a complex pain disorder with complications of reactive mood disorder, including anxiety and depression. He said the plaintiff’s symptoms were severe and related to low lumbar spine dysfunction with L4-5 disc protrusion and displacement of the left L4 nerve root.[36] Dr Formoso said, at that time, that the plaintiff had no capacity for pre-injury duties as a result of both physical and psychological symptoms related to his injury. He described the prognosis as poor and said the plaintiff required a multidisciplinary approach.[37]
[35]PACB 22.
[36]Ibid.
[37]PACB 23.
61The plaintiff does not rely upon the psychiatric consequences and cannot combine the physical and emotional consequences for the purposes of establishing a “serious injury”. There is a “disentangling” within the evidence in this report from Dr Formoso that has not been achieved.
62Dr Formoso opined in September 2020 that the plaintiff had no current work capacity, but the plaintiff was then studying for his master’s degree. What is unclear is whether Dr Formoso was aware of that and, in my opinion, full-time study for a master’s qualification sits uncomfortably with the suggestion of no capacity at all for work.
63Dr Formoso next reported on 2 December 2021.[38] He said the diagnosis was unchanged and the plaintiff continued to have complex chronic pain disorder with related psycho-emotional complications or reactive anxiety and depression. Dr Formoso described a flare-up of left lumbar pain earlier that year. He described the report of an MRI scan undertaken in February 2021 and a specialist referral by him to Professor Peter Teddy, neurosurgeon. Dr Formoso referred to nerve conduction studies undertaken in June 2021 and said they confirmed impairment and chronic irritation of the L5 nerve root.
[38]PACB 24.
64In the report of 2 December 2021, regarding work capacity, Dr Formoso said:
“With respect to your specific question about his present and future capacity for work, I believe he has no capacity for employment at present. His prognosis for employment in the near future is poor. Longer term prognosis will be dependent on response to specialist intervention including neurosurgical and pain management/rehabilitation specialist advice.”[39]
[39]PACB 25.
65Dr Formoso’s most recent report is dated 27 March 2023.[40] He repeated his earlier opinions regarding injury, namely that the plaintiff had a complex chronic pain disorder with complications of reactive mood disorder, including anxiety and depression. He recorded the plaintiff’s level of symptoms as severe and impacting virtually all activities of daily living and marked impact on the plaintiff’s quality of life. He said the symptoms related to low lumbosacral spine dysfunction with L4-5 disc injury and foraminal extension with left L5 nerve root irritation.
[40]PACB 26.
66It is unclear whether Dr Formoso has been informed of the plaintiff’s further studies or return to work driving Uber. In his most recent report, Dr Formoso said:
“… He continues to be effected [sic] by the pattern of work and possibility of breaks. With long rides and few breaks, he experiences a pain flare of around 9 to 10. However, with short rides of 10 to 20 minutes, provided that there are breaks of 10 to 20 minutes in between, his pain is much more tolerable but still graded at 5/10.”[41]
[41]PACB 26-27.
67It is unclear whether Dr Formoso’s reference to “long rides” is a reference to the work driving Uber. I assume that it is.
68Dr Formoso was then asked about how many hours a week the plaintiff could work. He said:
“I am unable to state the number of hours that he could do because this is highly dependent on the capacity to self pace and include break periods as required. I believe it is unlikely that any occupation will meet these restrictions.”[42]
[42]PACB 27.
Dr Ali Mehr
69Dr Mehr is a rehabilitation specialist and neurophysiologist, to whom the plaintiff was referred for treatment. Dr Mehr has provided several reports setting out his treatment of the plaintiff and his relevant opinions. His first report is dated 9 December 2018.[43] He described first assessing the plaintiff on 21 July 2017. At that time, the plaintiff had a chronic pain condition, described as a tightness in the thigh and aching pain in the left lower lumbar spine, aggravated by driving for more than ten minutes and sitting more than twenty minutes, but relieved by standing.[44]
[43]PACB 165.
[44]PACB 165.
70Dr Mehr then described the plaintiff’s psychosocial history. He described various investigations, his findings on clinical examination and review appointments with the plaintiff through until 29 October 2018. He described the plaintiff needing a pain management specialist and a multidisciplinary management program. He said he thought the plaintiff’s chronic pain and disability was related to the work at Tip Top, which involved repetitive lifting, bending, twisting and long-term standing.[45]
[45]PACB 168.
71Dr Mehr described the prognosis as guarded due to the chronicity of the condition and “the perpetuating factors, including psychosocial stress and the delayed treatment and insomnia”.[46] With respect to the prognosis for a return to pre-injury work, he said, “I do not believe that he can get back to the pre-injury work or any type of physical repetitive work in the foreseeable future”.[47] Relevant to alternate work, he said:
“He may be able to return to some sort of sedentary and desk job in the future. However, prior to that he needs complete the study and he has to have a pain management program and also a comprehensive return to work program….”[48]
[46]PACB 169.
[47]Ibid.
[48]Ibid.
72Dr Mehr reported next on 22 July 2020.[49] That report set out the further attendances and treatment of the plaintiff. At that time, he did not recommend any further treatment apart from continuous exercises and psychological management, and also continuing current medication. He said he thought the condition is stable.[50]
[49]PACB 33.
[50]PACB 34.
73When asked about the impact of the plaintiff’s injuries on employment, Dr Mehr said:
“I believe that his condition including chronic pain condition in the back with radiation to the legs, which has been explained and described in my previous report, will continue for foreseeable future. The impact of this injury in her functionality was also comprehensively explained in my previous report. Also, the impact of this chronic pain and associated disability and psychosocial impact of this disability and pain has been elaborated in my previous report, and I refer you to that report.
Based on the current pain and functional impact, I believe he has no capacity to return to pre-injury work or any other physically active work due to the significant impact of the pain on his physical tolerance. I believe that, that condition is stable, and it will not change in foreseeable future.
I believe the chance of generating in a free job market in a position similar to pre-injury work or any other physical work will be very low for [the plaintiff].”[51]
[sic]
[51]PACB 34-35.
74Dr Mehr then was asked a question about the result from the pain management program. He described a sitting tolerance as one hour, standing tolerance for thirty minutes, a walking tolerance for twenty to thirty minutes and a lifting tolerance of 2 kilograms at waist level. He then described the psychological impact of the plaintiff’s condition. He said the plaintiff “was previously studying and was keen to continue to study but has had to cease due to increasing pain”.[52] Pausing here, there is no evidence of the plaintiff ever having to cease his study due to increasing pain.
[52]PACB 35.
75Dr Mehr next reported on 25 April 2021.[53] He described review attendances on the plaintiff throughout 2020 and up to 25 March 2021. Dr Mehr said the plaintiff had a chronic pain condition, as explained in previous reports, and the diagnosis was the same. He said:
“… The only change is the significance of the condition has progressed and the recent MRI showed more protruded disc….”[54]
[53]PACB 36.
[54]PACB 37.
76Dr Mehr said the plaintiff’s then sitting and standing tolerances had been reduced to less than twenty minutes due to aggravation of the pain and aggravation of the condition, and his driving tolerance is reduced. He again said the plaintiff needed to continue pain management. He repeated his earlier opinion that a return to pre-injury work, or any physical work, had a poor prognosis. He said the plaintiff would not be able to return to any other physical work, or work that required long-term standing, sitting, bending, or twisting, or repetitive manual work such as bending, squatting, or kneeling.[55]
[55]PACB 38.
77Dr Mehr reported for a final time in a report dated 14 May 2023.[56] In that report, he noted the plaintiff had finished his study in a “Master of Science” (I assume that is an error) in November and had a trial of some job searching in that area. It is unclear what that is a reference to. He then said:
“… He worked for two months. It was some sort of modified duties because he was allowed to walk and stand when it is needed, but he did not have sitting/standing desk. He reported that after two months that his back pain with radiation to the leg had escalated and he was advised by his general practitioner to have four weeks off. When I saw him he told me that the pain still is high level.”[57]
[56] PACB 39.
[57]PACB 40.
78I assume Dr Mehr’s comment about a modified duties job is referencing the Oriana job, which was not a modified job. That is relevant, because Dr Mehr, later in the report, said “I highlight here again that the very flexible return to work was not successful and he had to stop that job”.[58] There is also nothing in the evidence from Dr Formoso to support a finding that it was Dr Formoso who told the plaintiff to stop the work at Oriana and have four weeks off.
[58]Ibid.
79I also note Dr Mehr’s comments that he tried to arrange for the plaintiff to work in an office, but I do not know what that is a reference to, as the plaintiff did not give any evidence about that. He said the plaintiff also tried to work in Uber, and both (I take the reference to “both” to include a reference to the return to work in an office job) were not working very well.[59]
[59]Ibid.
80Dr Mehr then described the last review on 21 April 2023 and that he mentioned to the plaintiff:
“… that [the plaintiff] never have a capacity of doing more than 10 hours per week for driving or even desk job because more than that it causes significant aggravation of his pain.”[60]
[60]PACB 41.
81In respect to pre-injury employment, Dr Mehr said the plaintiff did not have a capacity for that work. In respect to suitable employment, he said:
“I think it is significantly limited. He can do some Uber driving and may be sedentary job, not more than 10 hours per week.
He had several trials which failed and the best he could do was around this amount that I mentioned above. ”[61]
[61]PACB 42.
82Ultimately, Dr Mehr nominated that the plaintiff cannot work more than ten hours per week and highlighted the unpredictable nature of the plaintiff’s condition.
83I am far from convinced that Dr Mehr had an accurate picture of the plaintiff’s studies or return to work. Also, his reports combine aspects of the plaintiff’s physical and emotional responses in expressing opinions about work capacity. Further, Dr Mehr’s opinion that the plaintiff can only work ten hours per week appears to be predicated on an attempt, and a failed attempt, at a modified job with Oriana, but the Oriana job was not a modified job at all. Finally, Dr Mehr’s opinion of ten hours per week is contrary to the plaintiff’s own evidence of working for Uber for fifteen hours per week.
Professor Peter Teddy
84Professor Teddy is a neurosurgeon, to whom the plaintiff was referred by Dr Mehr. Professor Teddy first consulted with the plaintiff on 16 January 2018. He wrote back to Dr Mehr that day, describing the plaintiff as a pleasant young man who was very concerned about his symptoms. He described his examination findings and opinions regarding radiology. He recommended that Dr Mehr go ahead and carry out a nerve root block. He recommended conservative treatment. He said he thought the plaintiff should probably desist from doing heavy manual work and “I would have every hope that his symptoms will settle spontaneously with appropriate encouragement and psychological support”.[62]
[62]PACB 45.
85Professor Teddy saw the plaintiff again on 16 March 2021 and again reported back to Dr Mehr.[63] He said:
“On examination, he was once again, the pleasant, direct young man that I had met previously. However, he was quite focused on his WorkCover process and the likelihood or otherwise of obtaining compensation for his condition. He indicated most of his pain was to the left of the midline at around L5. His gait was normal. He sat and stood comfortably. He could bend only to touch his lower thighs, but extension was more than full. Tilt was about 50% in both directions, while rotation was full on each side. Straight leg raising was apparently 75% on the right and 45% on the left and said to be accompanied by painful spasms in his legs, but he was able to sit bold upright with both hips fully flexed and both knees fully extended. Power, sensation, and reflexes in the lower limbs were entirely normal. Femoral stretch test was negative.
Looking at this MRI of 2018, although there is nerve root canal narrowing at L4/5 as reported, the scan cut immediately above this narrowing shows, to my mind, adequacy of the nerve root canals and normality of the exiting L4 nerve roots.
In short, he has symptoms and signs compatible with L4 disc degeneration, but I do not think he has a significant radiculopathy.
I remain unconvinced that he would benefit from surgical intervention. More information might be derived from an appropriate nerve root block at the L4/5 level, if he is willing to undergo this procedure.
I have suggested that he comes along to see you once again to discuss this further. While nerve conduction studies may be of some assistance, an isolated finding in the absence of any convincing abnormal neurology might not get as (sic) much further forward.”[64]
[63]PACB 31.
[64]PACB 32.
86Professor Teddy’s opinions support a conclusion that the plaintiff has an organic condition effecting his lumbar spine, namely L4 disc degeneration. But his reports are equivocal as to any ongoing work-related involvement with that condition or the plaintiff’s current symptoms, bearing in mind that his reports are now a little out of date and therefore of limited assistance to the resolution of the issues in this proceeding. There is also a flavour in Professor Teddy’s reports that he considered psychological issues to be amplifying the plaintiff’s perception of disability.
Mr Gary Speck
87The plaintiff was referred for specialist opinion with Mr Garry Speck, orthopaedic surgeon. Mr Speck saw the plaintiff on 27 May 2019 and wrote back to Dr Formoso.[65] He said that the L4-5 level was most likely the initial source of the plaintiff’s pain, and a nerve root injection was appropriate. He noted his concern that the plaintiff had not had a true multidisciplinary approach. He said surgery was not likely to be of benefit.
[65]PACB 46.
88Mr Speck’s opinions are similar to those expressed by Professor Teddy. Obviously, Mr Speck reported in 2019 and so similar comments can be made about the usefulness of his opinions for the issues in this proceeding.
The plaintiff’s medico-legal evidence
Professor Richard Bittar
89The plaintiff was seen for medico-legal purposes by Professor Richard Bittar, consultant neurosurgeon, on 29 November 2019, at the request of the plaintiff’s solicitors. In a report of that date,[66] Professor Bittar recorded a history of constant lower back pain varying in character. He recorded the lower back pain as left-sided with an average severity of 5/10 and a maximum severity of 8/10. He recorded that the pain was exacerbated by bending, twisting, lifting, pushing, pulling, sitting for more than thirty minutes, standing for more than twenty minutes, and walking for more than twenty minutes. Professor Bittar also recorded intermittent leg pain affecting both legs, with the left leg more severely affected.
[66]PACB 54.
90Professor Bittar obtained a history of the onset of symptoms, treatment, and investigations. He conducted an examination of the plaintiff and noted that that neurological examination did not reveal any evidence of radiculopathy and that there was no abnormal illness behaviour.
91Professor Bittar said that, in his opinion, the plaintiff presented with L4-5 intervertebral disc prolapse and aggravation of lumbar spondylosis and causally related to his employment at Tip Top.[67]
[67]PACB 57.
92Pausing, Professor Bitttar’s diagnosis is similar to that reached by Professor Teddy and Mr Speck, save that Professor Bittar is clearer in linking the work at Tip Top to the ongoing symptoms.
93Professor Bittar recommended consideration for a left L4 nerve sheath injection. He discussed the possibility of surgery but said the plaintiff should continue with conservative and multidisciplinary treatment. He said the plaintiff was likely to suffer from significant pain and disability into the foreseeable future.
94Professor Bittar obtained a history of the plaintiff completing an undergraduate degree in architecture and had recently, that is, as at November 2019, re-entered the workforce as an Uber driver for ten to twelve hours per week.[68]
[68]PACB 55.
95Professor Bittar said the plaintiff was definitely not fit for unrestricted work in his pre-injury employment. He said that capacity was permanent.
96Regarding a question of the plaintiff’s realistic capacity for suitable employment, Professor Bittar said:
“In my opinion, [the plaintiff’s] realistic capacity for work IN a suitable and consistent reliable and sustained basis is very limited. He is currently working as an Uber drier (sic) 10 to 12 hours per week and it is unlikely that he would be able to increase the number of ours in that role, beyond 14 to 16 per week in a reliable and sustained manner. In my opinion, he could potentially work as a graduate art architect for 14 to 16ours per week, if he was afforded the ability to change postures, with avoidance of siting or standing for more than short periods of time. His frequent flare-ups of pain would impact on the quality of his work as an architect.”[69]
[sic]
[69]PACB 58.
97Professor Bittar re-examined the plaintiff and provided a report dated 29 May 2021.[70] He repeated his earlier diagnosis and treatment recommendations. He described the organic injury as the aggravation of pre-existing, but asymptomatic, lumbar spondylosis, as well as an L4-5 disc injury/prolapse.[71] He said the plaintiff did require ongoing treatment, including medications. He said the restrictions, disability, and incapacity from the injury would remain for the foreseeable future. He said, on balance, the work at Tip Top was the cause of his injury and incapacity.
[70]PACB 59.
[71]PACB 63.
98Professor Bittar reported for a third time, after examining the plaintiff on 21 November 2022.[72] He obtained a similar history of the plaintiff’s symptoms and the restrictions. He noted the plaintiff had had nerve conduction studies and, by then, had undergone a left L4 nerve sheath injection. On that occasion, when examined, Professor Bittar found the plaintiff to walk with a slightly antalgic gait and to have moderate restriction of lumbar spine flexion and a mild restriction of lumbar spine extension. Again, there was no neurological evidence of radiculopathy. He repeated his diagnosis and comments regarding causation. He said, because of the failure to obtain any benefit from the nerve sheath injection, he recommended ongoing conservative treatment. He said the plaintiff was likely to continue to experience significant pain and disability into the foreseeable future.[73]
[72]PACB 62.
[73]PACB 91.
99In respect to the plaintiff’s present and future capacity for work, Professor Bittar said:
“In my opinion, [the plaintiff’s] present and future capacity for work is very limited. He has, from time to time, attempted to [sic] paid employment, however such attempts have been limited by pain, particularly with prolonged sitting (such as whilst working as an Uber driver and draftsman). In my opinion, it is unlikely that he will regain the capacity to undertake any type of employment on a reliable and consistent basis, although I do expect that he will be able to undertake some very limited and sedentary work for short periods of time (1-2 months at a time) every so often (it is difficult to predict how often he will be able to work in such roles, however).
In my opinion, his substantial reduction in work capacity is permanent.”[74]
[74]Ibid.
Dr James Rowe
100Dr James Rowe was a specialist occupational physician who examined the plaintiff on several occasions and provided reports, the first of which is dated 25 February 2020.[75] Dr Rowe obtained a history of the plaintiff’s work at Tip Top, the development of symptoms, and claimed restrictions. He diagnosed an L4-5 disc bulge with compromise of the L5 nerve root on both sides and said the injury was consistent with the stated cause of heavy lifting at Tip Top.[76]
[75]DCB 116.
[76]DCB 120.
101In respect to work restrictions, Dr Rowe said, in February 2020, that:
“As a result of the injuries sustained to his lower back, he would have restrictions placed upon duties involving:
- Lifting and carrying (maximum of 10kg);
- Repetitive bending and twisting;
- Prolonged periods of sitting or standing;
- Walking long distances.”[77]
[77]Ibid.
102In respect to a capacity for suitable employment, Dr Rowe then said:
“He does have capacity for suitable employment on a part-time basis where his duties do not involve lifting more than 10kg and repetitive bending and twisting. This will be the case for at least the next two years.
He is currently working about 20 hours per week as an Uber driver. This is about the maximum hours he can safely work at the moment and this is because he is able to set his own hours and take regular rest breaks.
He is currently completing a Masters degree in Architecture which he will finish in a year or two. I see no reason why he could not work in this field in the future.
His realistic capacity for suitable employment and/or employment as an architect will depend on the availability of modified duties over time. He will never be able to perform duties that involve heavy lifting or constant bending and twisting.”[78]
[78]DCB 121.
103The next report from Dr Rowe was dated 25 May 2021, following a re-examination that day.[79] On that occasion, Dr Rowe recorded a suggestion that the plaintiff could have surgery on his back and said that seemed reasonable. There is no suggestion from any treating practitioner of back surgery, and I assume Dr Rowe is referencing a comment by Professor Bittar. In any event, he noted that the plaintiff’s back had deteriorated since he had last examined the plaintiff and that it was more than likely that the disc had protruded further. He said the plaintiff was not fit for pre-injury employment and had to give up his Uber driving, but was continuing with studies, which he described as a “tenuous environment at present”.[80]
[79]PACB 109.
[80]PACB 113.
104Relevantly, Dr Rowe said:
“He is not fit for preinjury work. He is not fit for any similar work either, positions requiring unrestricted physical capacity are not within his physical capacity. If he is able to successfully complete his architecture studies he will be able to work in that profession. He will of course need to monitor his physical requirements and movements on the job. It is most unlikely he will ever be able to regularly lift more than 10kg or work at positions requiring unrestricted physical mobility, particularly twisting and bending.
Architecture can involve rigorous and extensive moving about construction sites and up-and-down ladders and scaffolding.
Hopefully, and preferably, he will be in a position where he is able to self-monitor and regulate any such requirements and avoid the risk of aggravating or reinjuring himself.”[81]
[81]PACB 114.
105Pausing, despite Dr Rowe’s evidence about what architecture work can involve, such as rigorous and extensive movement about construction sites, the plaintiff gave no evidence that he ever had any intention to do that type of work.
106In any event, the plaintiff was reviewed for a third and final time by Dr Rowe on 10 January 2023. Dr Rowe then provided a report dated 12 January 2023.[82] That report updated the history and situation since his previous report. Again, he conducted a physical examination. He found that movements of the left foot and ankle were weak, and left thigh and calf wasting.[83]
[82]PACB 115.
[83]PACB 119.
107Dr Rowe was then asked again to answer questions about the plaintiff’s realistic capacity for work. He said,
“I am not of the view that he has any realistic capacity for employment at this time.
As a result of his low back injury, and radiculopathy about the left leg, he would require permanent restrictions on activities involving:
- Lifting and carrying more than 5kg;
- Heavy and repetitive pushing and pulling;
- Repetitive bending and twisting;
- Prolonged sitting and standing;
- Climbing ladders and stairs; and- Driving long distances.
His previous role as a production worker in a baked goods factory was very physically demanding. These work duties would lie outside of his current physical capacity. He would be unable to perform his pre-injury duties in a manner that is safe, consistent and reliable, without considerable risk to himself or others.
He attempted a return to work as an Uber driver and, for a brief time, as a draftsman, but was ultimately unsuccessful. He is unable to tolerate prolonged sitting and as such, this would make a transition to a sedentary workplace difficult.
In theory, [the plaintiff] may have some limited capacity for suitable, sedentary employment on a minimal, part-time basis. However, he would be at a significant disadvantage in the open labour market relative to able-bodied individuals. In addition to his physical restrictions, there are a multitude of other challenges he faces in terms of determining his realistic capacity for suitable employment, including:
• his management and treatment requirements, including his current levels of medication ingestion;
• the practical realities of his domestic situation, being heavily dependent on his wife and family for support;
• workforce discrimination against long-term unemployed jobseekers;
• finding so called suitable employment in light of his multiple physical restrictions;
• winning a position against unrestricted applicants;
• safely getting to and from work with limited driving capacity;
• sustaining an adequate performance at work;
• having very little experience in any other field for which he is now physically suited; and
• the absences from any work, even part time work, to continue with necessary treatment or to deal with flare-ups of pain.
Injured workers must not be placed in harm’s way or unreasonably put at risk of aggravation of further injury. Any deemed capacity for employment must be measured against whether an employee can get to work, on a consistent, reliable and permanent basis and whether they can perform all aspects of the job without risk to themselves or others. Additionally, whether or not an individual can cope with inevitable, unexpected occurrences in the workplace, must also be considered.
I would consider based on his lower back injury alone, his prospects of a successful return to work in the next 2-3 years are slim. He would require an employer that was able to provide a highly flexible workplace arrangement including regular absenteeism.
He could be re-assessed in 12 months’ time with an updated MRI scan and an updated report from a neurosurgeon and an orthopaedic surgeon.”[84]
[84]PACB 121-122.
108Pausing, the plaintiff placed “quite a bit of weight”[85] on Dr Rowe’s comments in final submission regarding the challenges that an injured worker may have in finding a job as part of the common law assessment of loss of earning capacity.
[85] T 85, L 20-21.
109Next, Dr Rowe was asked to estimate the plaintiff’s present and future capacity for work as an architect. He said:
“[The plaintiff] successfully completed his architecture studies and is hoping that he will be able to pursue this as a long-term career option.
Architecture can involve rigorous and extensive moving about construction sites and up-and-down ladders and scaffolding. It is most unlikely he will ever be able to regularly lift more than 10kg or work at positions requiring unrestricted physical mobility, particularly twisting and bending.
If he can manage his eventual work in that field employment may be possible. It is more likely that he will be confined to restricted office work with very occasional visits to construction sites. This may change/improve over the longer outlook but the foreseeable future is more restricted and uncertain.”[86]
[86]PACB 122-123.
110I note that, despite Dr Rowe’s comments regarding how the plaintiff may be disadvantaged in obtaining employment when competing with a person without an injury, Dr Rowe does not eliminate work as an architect as an option for the plaintiff. Dr Rowe described a return to that type of employment as possible.[87] I also, again, note that it is Dr Rowe who provided some evidence of what is physically involved in work as an architect.
[87]PACB 123.
Flexi Personnel
111Ms Sue Webster, a human resources consultant at Flexi Personnel, provided a report dated 8 May 2023.[88] That report provided calculations of the plaintiff’s potential earnings as a production worker/baker had he not been injured. It then provided gross hourly rates of pain for an architect extracted from Hays Salary Guide and Talent.com. I have already commented on the uncertainty as to how those extracted figures relate to the plaintiff. I do not consider the Flexi Personnel report to be expert evidence as such, as it is simply evidence extracted, seemingly, from the internet and then compiled into an earnings report. Nevertheless, I have taken it into account.
[88]PACB 156.
The defendant’s medico-legal evidence
Dr James Economos
112Dr Economos is an occupational physician who examined the plaintiff and provided reports dated 8 June 2015,[89] 12 September 2017[90] and 18 October 2018.[91]
[89]DCB 15.
[90]DCB 25.
[91]DCB 28.
113Obviously, Dr Economos’s reports are considerably out of date. In the first report, he said he could see no reason why the plaintiff could be undertaking modified duties for pre-injury hours.[92] In the second report, he said the most likely diagnosis was L4-5 discogenic lower back pain, but otherwise maintained his opinion about work capacity.[93] Then, in his third report, he said he considered the work exposures likely to have been a materially contributing factor to the plaintiff’s disc pathology, with the symptoms commencing gradually in December 2016 or January 2017.[94]
[92]DCB 19.
[93]DCB 26.
[94]DCB 28.
Dr David Barton
114Dr Barton is an occupational physician, who examined the plaintiff and provided reports dated 15 December 2017,[95] 22 December 2017,[96] 15 January 2018[97] and 22 March 2018.[98]
[95]DCB 30.
[96]DCB 38.
[97]DCB 40.
[98]DCB 41.
115Obviously, Dr Barton’s reports are also considerably out of date.
116In his first report, Dr Barton commented about the plaintiff displaying a significant degree of illness behaviour but said he would accept the plaintiff had a mild back problem, possibly related to his employment.[99] He otherwise said he could see no particular reason why the plaintiff could not return to normal work consistent with his age and vocational history. He essentially repeated those opinions in his second and third reports. Then, in his final report, he said there may have been a physical basis to the plaintiff’s complaints, but his ongoing problem then had more to do with a chronic pain problem.[100]
[99]DCB 33.
[100]DCB 41.
Dr Timothy Wood
117Dr Wood is a sport and exercise medicine physician, who examined the plaintiff and provided reports dated 21 June 2018[101] and 18 July 2018.[102] Once again, Dr Wood’s reports are now considerably out of date. In his first report, he provided a diagnosis of maladaptive neurobiological response to the disc pathology at L4-5.[103] He said the plaintiff could return to attempt alternate duties in accordance with a return-to-work program.[104] In his second report, he said the plaintiff’s condition was still materially contributed to by the compensable injury and again expressed that he was happy with a proposed return-to-work arrangement.[105]
[101]DCB 56.
[102]DCB 64.
[103]DCB 59.
[104]DCB 61.
[105]DCB 65.
Dr Joseph Slesenger
118Dr Joseph Slesenger is another specialist occupational physician who examined the plaintiff and provided reports.
119Dr Slesenger’s first report is dated 9 July 2018.[106] In that report, he set out his clinical examination, which he then described as demonstrating significant inconsistencies.[107] He then opined that the plaintiff had suffered mechanical injury to the lumbar spine and aggravation of degenerative disease of the lumbar spine, now resolved.[108] Dr Slesenger reported again on 18 May 2023.[109] That report repeated his earlier history, examination findings and opinions, before setting out the further history given to him. He described that some of the plaintiff’s answers surrounding his return to work, particularly with regard to his hours of work, were rather vague and required multiple attempts to clarify.[110] He also noted inconsistent examination findings.
[106]DCB 66.
[107]DCB 72.
[108]Ibid.
[109]DCB 76.
[110]DCB 83.
120Dr Slesenger said, once again, that he was satisfied the plaintiff suffered a mechanical injury to the lumbar spine and aggravation of degenerative disease, but that it had now resolved. He said:
“I also note a behavioural element to his presentation; in particular, I note that he was unable to engage in the return to work arrangements, and in December 2017, he was only able to attend to work for 2 hours, performing administrative tasks. In contrast, he was engaging in study of up to 40 hours a week, travelling up to 3 hours per day.
I am similarly minded that with regard to his current level of disability, namely that he was able to attend to Uber driving 3 days a week, up to 5 hours a day, but is unable to maintain attendance in a sedentary role as an Assistant Designer. This does not appear to be consistent.”[111]
[111]DCB 87.
121Dr Slesenger was asked whether the plaintiff’s condition was materially contributed to by any injury sustained in the course of his employment, and he said that any current impairment was no longer materially contributed to by the “index accident”.[112]
[112]Ibid.
Professor Vernon Marshall
122Professor Marshall is a surgeon to whom the plaintiff was referred for assessment. Professor Marshall provided a report dated 1 May 2019. That report is principally an impairment assessment, but he did diagnose a work injury with persisting lower back pain/chronic pain syndrome and no definite evidence of radiculopathy.[113]
[113]DCB 100.
Mr Michael Dooley
123Mr Dooley is an orthopaedic surgeon who examined the plaintiff and provided a report dated 18 January 2022.[114] Mr Dooley obtained a history from the plaintiff, conducted a physical examination, and reviewed available radiology. He then said that, based on the plaintiff’s history, he believed that, in late 2016, during the course of his work, the plaintiff sustained a soft-tissue injury to his lumbar spine that involved some aggravation of underlying degenerative disc change and may have involved a left-sided lateral L4-5 disc protrusion.[115]
[114]DCB 122.
[115]DCB 124.
124Mr Dooley also noted inconsistent signs on clinical examination. He then said he thought the plaintiff had suffered a psychological reaction to his situation that significantly influenced his ongoing symptoms.[116]
[116]Ibid.
125Mr Dooley then said he considered that there was an organic basis to the plaintiff’s ongoing symptoms, but that, in time, his psychological reaction had led to a situation where his psychological reaction dominated the physical presentation.
126From an orthopaedic view only, Mr Dooley said that the plaintiff would not be able to carry out regular heavy physical work or work that involved a lot of bending, lifting, and manoeuvring.[117]
[117]DCB 125.
127Mr Dooley said the plaintiff was then fit for a wide range of light physical work and clerical-type activities. He said, from the orthopaedic point of view, he would expect the plaintiff to note some intermittent lower back pain and some intermittent lower limb pain.[118]
[118]DCB 126.
128Mr Dooley was not asked specifically if the plaintiff could work “after injury” as an architect. I consider that work as an architect probably does fall within the description of light physical or clerical type activity. Or perhaps to put it in the alternative, there is no evidence before me that work as an architect would not meet that description.
Analysis
129That completes a summary of the relevant evidence.
130I shall now turn to consider the relevant issues for determination, as already identified.
Does the plaintiff have an ongoing work injury?
131The first issue is whether the plaintiff has established an ongoing compensable, physical injury to the spine.
132The medical evidence confirms that the plaintiff developed symptoms during his work at Tip Top. The question is whether that work continues to be a cause of the symptoms that the plaintiff says he now has in his low back.
133On a consideration of the whole of the medical evidence, I conclude that the plaintiff has established an ongoing work-related physical injury to the spine (low back). The defendant did not “give away” the opinions from medico-legal witnesses such as Dr Slesenger, who opined that any work injury was only short-term. I prefer the opinions from the specialists, such as Professor Bittar and Mr Dooley, who provided careful opinions and accepted that there was an ongoing work related injury, unlike Dr Slesenger who does not provide a clear path of reasoning as to how or when any work injury resolved.
134I accept that the plaintiff has complained on a consistent basis of ongoing back pain since developing symptoms at Tip Top. He has had regular ongoing conservative treatment (and reporting of symptoms) to Dr Formoso and Dr Mehr. He has radiologically demonstrated changes in the lumbar spine that are consistent with his description as to the onset and continuation of symptoms. When those facts are considered together with the opinions from Professor Bittar and Mr Dooley, then that supports the conclusion of an ongoing work injury.
135In summary, the medical evidence tends to the conclusion that the plaintiff has radiologically demonstrated degenerative change at the lower lumbar levels, involving the L4/5 disc.[119] I accept that the work at Tip Top caused an aggravation of that radiologically demonstrated pathology, in the setting of a previously asymptomatic spine, and that such aggravation continues to be a cause of symptoms in the plaintiff’s lumbar spine.
[119] MRI report 25 February 2021, PCB 152.
What are the impairment consequences?
136Turning to the next issue, namely the extent of any ongoing impairment and impairment consequences, the defendant chose to cross-examine the plaintiff broadly as to his level of consequences, but the specific challenge was confined to the issue of work capacity.
137Therefore, while “pain and suffering” “serious injury” was not conceded, neither was it a particular focus of the defendant.
138In that context, I accept the evidence of ongoing pain in the plaintiff’s lumbar spine. Dr Formoso’s evidence supports a conclusion of ongoing symptoms, with severe pain at times and flareups. Dr Mehr’s evidence supports a conclusion of a chronic pain condition, with aggravating factors and restrictions for day-to-day activity. Similarly, Dr Rowe’s evidence supports a conclusion that the plaintiff is restricted for day-to-day activity. Mr Dooley considered that there was an organic basis to the plaintiff’s complaints and restrictions for activities such as bending, lifting, and manoeuvring, as does Professor Bittar.
139Despite the insufficient evidence from the plaintiff about his work, work ambitions, and work capacity, on a consideration of the whole of the evidence, I accept the evidence in the plaintiff’s affidavits regarding the “pain and suffering” impairment consequences.
140Relevantly, the plaintiff is still a young man. He will suffer the impairment consequences for the rest of his life. There is no suggestion of spontaneous improvement. He requires ongoing over-the-counter pain medication. He described how he is restricted from activities such as driving, sitting, standing, running, and playing with his children. His personal relationship with his wife has been affected.
141I accept that the plaintiff retains an ability to engage in some social and recreational activity. He has been able to travel. He can still drive. He is involved to some extent with his children. He is still able to exercise. In other words, I have considered not only what he has lost, but what he has retained. While there may not be one “big ticket” item, and notwithstanding the unreliability of some of his subjective evidence, on balance, the objective evidence combined with what I consider to be the reliable evidence given by him as to his ongoing restrictions, together with the evidence of his ongoing low back pain and a consideration of his young age, lead me to conclude that he has suffered a “very considerable” pain and suffering consequence.
Disentanglement
142It is convenient here to say a brief word about the “disentangling” issue.
143Several medical practitioners noted that the plaintiff had suffered an emotional reaction to his physical injury. That raises the spectre of a “disentanglement issue”.
144But, on a consideration of the medical evidence, there is, in fact, no disentangling issue, because no medical practitioner has been prevented from assessing the physical injury because of the plaintiff’s emotional response.
145For example, Mr Dooley, appropriately, noted that the plaintiff had suffered a psychological reaction to his situation. But, to illustrate the point, Mr Dooley then went on to say there was an organic basis to the plaintiff’s symptoms, and he then set out his opinion regarding work-related restrictions related to that organic condition. In other words, Mr Dooley did not say that he could not assess the underlying organic condition, or that the underlying condition was interwoven with the emotional response to an extent where he could not provide an opinion as to the restrictions from the organic condition.
146I accept the plaintiff’s submission that while there may be an element or component of the psychological, the predominant cause of his restrictions is physical.[120] Having said that, when asked in re-examination why he couldn’t get his first architecture job, the plaintiff said he didn’t have experience in the field, couldn’t cope with the pain and “mentally, not clear enough, because architecture… a draftsman can design a house, you know draw the plans and all that. But to actually design and start from scratch you need to have a clear mind, you need to be focussed. You need to, you know, mentally be in the moment…”.[121]
[120] T 84, L 8.
[121] T 40, L 12-19.
147I have reached my conclusions in respect to the issues to do with the ongoing injury, impairment, and impairment consequences, by reference to the medical evidence related to that organic condition.
148I do not consider that there is truly a disentangling issue in this proceeding, save that the plaintiff’s emotional response might be said to impact upon his motivation to look for work or increase his perception of disability and the reliability of some of his evidence.
What is the plaintiff’s “after injury” capacity for employment?
149That brings me to what is perhaps the real issue in this proceeding, namely, what is the plaintiff’s “after injury” capacity for employment?
150Central to this issue is the question, why is it that the plaintiff is not now working as an architect?
151Suffice to say, if I were to conclude that “after injury” the plaintiff could work unrestricted as an architect, then he would fail to satisfy the test for loss of earnings “serious injury” because he would not satisfy the statutory requirements, in circumstances where he was never going to be a manual worker.
152The evidence is limited and vague as to any difficulty that the plaintiff had in obtaining his bachelor’s degree, or his master’s qualification. In his affidavit evidence, he described difficulty sitting, standing, and concentrating to complete the courses, as well as difficulty studying online for his master’s because he had a young family at home (an understandable distraction produced by COVID). But on the other hand, objectively, he completed those degrees in the prescribed time for a full-time course load.
153The plaintiff’s academic results are not in evidence. The only evidence is that he achieved the qualifications for which he studied, save for a mention during his oral evidence that he “barely passed”[122] his master’s course. There is no evidence other than that he is a qualified architect and intellectually capable of that work.
[122] T 24, L 20.
154This is not a situation in which the plaintiff’s back injury meant that he had to prolong or defer his studies or seek special assistance to complete the courses. There is no objective evidence that he was inhibited in his ability to learn the skills of an architect because of his injury. The reality is that from 2017 through until 2022, he was a full-time student during the university terms and, on occasion, also drove Uber while studying, or during university vacation periods.
155There is no objective evidence of what work as an architect involves, apart from what was said by Dr Rowe in his reports about some aspects of that work. I have a vague familiarity with the work of an architect from watching Grand Designs Australia and from some limited real estate exposure that I am probably entitled to take judicial notice of, but I do not know what a master’s qualification means for vocational purposes or salary purposes, and there is no relevant evidence of those issues. On the assumption that at least some aspect of the work of an architect is sedentary, then I consider that the ability to study full-time must likely translate to the ability to perform the actual job as an architect.
156I also consider it likely that the work as an architect is no more physically difficult – and possibly not as difficult – than sitting in a vehicle to work as an Uber driver.
157Leading counsel or the plaintiff submitted that the plaintiff gave credible evidence and that his credit had not been impugned.[123] However, having considered the whole of the evidence, I disagree with that submission. In my opinion, there does arise a credit issue in a consideration of the evidence of “after injury” work capacity. The defendant did not proceed with a ‘full frontal’ credit attack on the plaintiff. It did not venture to declare him to be dishonest. Rather, the credit attack was, appropriately, a more subtle attack, instead highlighting the unreliability of certain aspects of the evidence, or the lack of relevant evidence.
[123] T 75, L 9-19.
158I consider aspects of the plaintiff’s evidence to be unreliable and lacking. There is no reliable or accurate history to any doctor of his studies, or his effort to work as a draftsman, or in Uber. The reason for that is largely irrelevant. It may be that there is an emotional aspect to his presentation that clouds his perception of disability. There may be an element of conscious or subconscious exaggeration. There may have simply been a failure to appreciate the evidence he needed to give. I do not consider him to have deliberately set out to deceive or was motivated by a desire for compensation. But I do consider his evidence on the critical issue of “after injury” loss of earning capacity to be insufficient.
159My conclusion about the reliability of the plaintiff’s evidence is a critical conclusion for a consideration of loss of earnings.
160The plaintiff never intended to be a manual worker, or to pursue a career at Tip Top. That work was only ever going to be undertaken by him while he worked to get a tertiary qualification.
161In my opinion, the medical evidence supports a conclusion that the plaintiff “after injury” has a capacity for light, sedentary work. Such a conclusion is inescapable in circumstances where, after being injured, he continued to study and work.
162The plaintiff submitted that there is “a huge difference” between study as an architect and working as an architect.[124] He submitted that he had attempted the Oriana job, which was “almost the exact job”[125] as an architect’s job and failed to cope with that job. He submitted that “as matters stand” he cannot work at all as an architect.[126]
[124] T 79, L 4-6.
[125] T 75, L 20-29.
[126]T 86, L 28.
163I do not accept those submissions. First, I consider his evidence about the Oriana job, in context with the evidence from Dr Formoso and Dr Mehr, to be unreliable. Second, I conclude that he is physically fit to perform sedentary work. Third, based on the limited evidence, I consider that work as an architect (or at least some types of architecture work) falls within a description of sedentary work.
164What is less certain is whether his capacity for work is now limited to part-time hours. Obviously, several doctors limit the hours of work “after injury”. But the difficulty with those opinions is that the doctors have not been provided a full or accurate picture.
165It may also be that the plaintiff’s back injury will limit the sort of work that he can undertake as an architect. The medical evidence supports a conclusion that he will be restricted in the sort of physical tasks that he can now perform and will have restrictions for bending, lifting, sitting, twisting and the like. But on a consideration of the whole of the reliable evidence, I consider he has an “after injury” capacity to work full time. I do not accept the opinions that limit his work hours, or in the case of Professor Bittar, suggest that there will be periods when he can work and periods when he cannot.
166I consider that the inability to return to the type of work he did pre-injury, together with the physical restrictions he now has and the probable narrowing of his options as an architect, in accordance with common law principles, are such as to produce a “very considerable” pecuniary loss consequence, and so the narrative test in s325(2)(b) and (c) of the Act is satisfied.
167To return to an earlier discussion, the assessment of loss of earning capacity for a young person can be an imprecise task and one that sometimes must be undertaken on a limited body of uncertain evidence. But, where the plaintiff bears the onus of proof, it is incumbent on him to produce sufficient evidence to support a conclusion under s325(2)(e)(ii) of the Act that after the date of the hearing, he will continue permanently to have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more.
168I consider that the plaintiff has not discharged his evidentiary onus to establish the requisite loss of earning capacity.
169First, the evidence is limited as to how he coped with his studies, what he intended to do with his qualifications, and what is involved (both physically and intellectually) in work as an architect. The objective evidence is that he studied full time university course loads for five years, passing the courses in the allotted time, and where able drove Uber. There is no logical explanation for how that does not translate into a capacity for work.
170Second, the medical evidence is based on an unreliable or incomplete history, but even so, the doctors do not describe the plaintiff “after injury” as totally unfit for work.
171Third, because of the unreliability of the plaintiff’s evidence and based on my conclusion that he now has a capacity for light sedentary work, Dr Rowe and Mr Dooley are the most reliable medical opinions regarding “after injury” work capacity. While they placed restrictions on the type of work he can now perform, they do not write the plaintiff off for sedentary work, or in the case of Dr Rowe, for work as an architect. As mentioned, I consider that at the very least, certain types of architect roles are sedentary.
172Fourth, there is no useful evidence of the salary that the plaintiff could have achieved with his qualifications or could now achieve in work as an architect. It may be that higher paid work is now less likely for him because of his back injury, but such a conclusion involves speculation.
173Fifth, overall, the unreliability of the plaintiff makes it difficult to assess his “after injury” loss of earnings. His affidavit evidence about the Oriana job was incomplete and ignored the trip to the United Kingdom. His evidence about Uber driving, when compared to the documented pay records from Uber, casts doubt on the reliability of his evidence about how much Uber driving he has been doing and whether it really is limited to no more than 15 hours per week.
174Sixth, I consider that the medical evidence supports a conclusion that the plaintiff has what might be termed a “light work” back and that he can work full-time as an architect in suitable light work.
175Seventh, the evidence does not enable a conclusion that the plaintiff will have a permanent loss of earning capacity of that will be productive of financial loss of 40 per cent or more. A conclusion that he has a “very considerable” pecuniary loss in accordance with common law principles, does not equate to an actual financial loss of 40 per cent or more. On this later point, the plaintiff had the onus to provide the necessary evidence to establish that loss, which he has failed to do.
176In summary, I accept that the plaintiff is likely to have a loss of earning capacity and an actual financial loss, applying the general common law principles. But the Act requires him to prove, in accordance with those general common law principles, that he will permanently have an actual financial loss[127] of 40 per cent or more. He was required to provide sufficient evidence to prove the extent of the financial loss and has failed to do so.
[127] Emphasis added.
177Therefore, for the reasons expressed, the claim for loss of earnings is not made out.
Conclusion
178The plaintiff is granted leave to commence a proceeding for pain and suffering damages. The application for leave to commence a proceeding for loss of earnings damages is dismissed. I shall hear from the parties as to consequential orders.
not believe that he can get back to the pre-injury work or any
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