Turan v TT Logistics (Australasia) Pty Ltd

[2016] VCC 1862

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-15-06181

MUSTAFA TURAN	Plaintiff
v
TT LOGISTICS (AUSTRALASIA) PTY LTD	Defendant

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JUDGE:	HER HONOUR JUDGE BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:	16 and 17 November 2016
DATE OF JUDGMENT:	7 December 2016
CASE MAY BE CITED AS:	Turan v TT Logistics (Australasia) Pty Ltd
MEDIUM NEUTRAL CITATION:	[2016] VCC 1862

REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION

Catchwords:             Serious injury – impairment to the lumbar spine – psychiatric impairment – pain and suffering – loss of earning capacity

Legislation Cited:     Accident Compensation Act 1985, s134AB(16)(b), (37) and (38)

Cases Cited: Mobilio v Balliotis [1998] 3 VR 833; Turner v Love & Transport Accident Commission (1995) 21 MVR 314; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Meadows v Lichmore Pty Ltd [2013] VSCA 201; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Peak Engineering & Anor v McKenzie [2014] VSCA 67; Acir v Frosster Pty Ltd [2009] VSC 454

Judgment:                 Leave granted.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Mighell QC Mr L B Allan	Zaparas Lawyers Pty Ltd
For the Defendant	Mr P A Scanlon QC with Ms F Ryan	Thomson Geer

HER HONOUR:

1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of his employment with the defendant on 27 February 2014 (“the said date”).

2 The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity. These discrete heads of damage require the application of different statutory tests, as mandated by s134AB(37) and (38).

3       The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious injury” is defined relevantly as meaning:

“(a)     permanent serious impairment or loss of a body function.”

4       The body function relied upon in this application is the lumbar spine.

5       The plaintiff also brought an application pursuant to clause (c) for a severe psychiatric impairment.  This application related to a Major Depressive Disorder not a Chronic Pain Syndrome, as it was submitted by counsel for the plaintiff that the plaintiff’s lumbar pain is organically based.[1]

[1]Transcript (“T”) 5

6       Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.

7       The impairment of the body function must be permanent, in the sense that it is likely to continue into the foreseeable future.

8 The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, ss(19) and ss(38)(e) of s134AB of the Act impose specific burdens in relation to a claim for loss of earning capacity.

9 By s134AB(38)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments, can fairly be described, at the date of the hearing, as being more than significant or marked, and as being at least very considerable.

10      I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury.  Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.

11      The judgment of the Court of Appeal in Mobilio v Balliotis[2] resolved the meaning of “severe”.  Brooking JA held, at 846, having referred to the considerations mentioned in Turner v Love & Transport Accident Commission,[3] that they were not sufficient to warrant departing from the conclusion at which one would prima facie arrive, namely that the change in language from “serious” or “severe” betokens a change in meaning.  Without suggesting the use of any particular adjective to mark the distinction, his Honour said that “severe” was used in the definition as a stronger word than “serious”.

[2][1998] 3 VR 833

[3](1995) 21 MVR 314

12      Winneke P, in Mobilio,[4] agreed with Brooking JA’s reasons and further agreed with him that the word “severe”, where used in sub-paragraph (c) of ss(17) of the Transport Accident Act, was a word of stronger force than the word “serious” where used in that Act: see also Phillips JA at 858 and Charles JA at 860 to 861 to similar effect.

[4]Mobilio v Balliotis (supra)

13      Where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of 40 per cent or more, both at the date of hearing and permanently thereafter.

14      Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured.

15      Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the 40 per cent loss has been established.

16      Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.

17      I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak,[5][6] and Grech v Orica Australia Pty Ltd & Anor[7] in reaching my conclusions.

[5](2005) 14 VR 622

[7](2006) 14 VR 602

18      The plaintiff relied upon three affidavits and was cross-examined.  His wife, Hacer, also swore an affidavit on 20 October 2016.  In addition, both parties relied on medical reports and other material which was tendered in evidence.  I have read all the tendered material.

The Plaintiff’s evidence

19      The plaintiff is presently aged forty-five, having been born in March 1971.  He lives with his wife and three children, who are aged between nine and seventeen.

20      When the plaintiff arrived in Australia at the age of fifteen, he did some English classes, and for two or three years attended Essendon Technical College, which he left after Year 10.

21      After leaving school, the plaintiff obtained his forklift certificate and did some driving.  He also did some picking and packing type work.  In about 1992, he spent time in Queensland doing farm work and then worked in a fabric dyeing factory.

22      Having gone back to Turkey for some time in 1997 to 1998, on his return to Australia, the plaintiff was unemployed before beginning work at a plastic factory, where he stayed for one or two years.

23      Before commencing work with the defendant, the plaintiff did not recall any issue with his groin, back or other significant medical problem.

24      The plaintiff started working for the defendant, which he knew as “Toyota”, in around 2003 as a storeman.  He generally worked about 38 hours a week, plus significant overtime.  Usually he worked the nightshift from 5.30pm to 2.00am.

25      The plaintiff’s job involved working in the warehouse where he would pick and pack items that were requested by the Toyota factory next door and put them in a trolley.  He moved the items around the warehouse floor with the trolley pulled by a motorised cart.  

26      In about 2010, the plaintiff had some groin pain.  He saw his general practitioner and might have had some time off work, but did not think too much of it at the time.

27      On 16 July 2013, while bending and lifting objects, the plaintiff felt severe pain in both groins, like something was bulging in his groin.  He attended his general practitioner, Dr Dinh, who referred him for an ultrasound.  The plaintiff was advised the ultrasound showed some abnormalities, but nothing too bad, so he returned to work on light duties; however, his groin pain persisted. 

28      Dr Dinh referred the plaintiff to Mr Bui, general surgeon, whom he saw in August 2013.  He advised the plaintiff he had hernias on both sides of his groin.

29      The plaintiff underwent a direct inguinal hernia endoscopic repair (“the hernia operation”) in September 2013, and his WorkCover Claim in relation thereto was accepted.

30      The plaintiff returned to work in about November 2013, initially on light duties.  At that stage, he still had quite a bit of pain in his groins, but pushed through.  He was cleared for normal duties in about January 2014.  Once he went back to full duties, unfortunately, his groin pain got even worse, especially on the right side.

31      On or around 5 February 2014, the plaintiff attended the Emergency Department at Sunshine Hospital with chest, abdominal and back pains after watering the garden.  He was worried he was having a heart attack.  It turned out to be a gallstone.  He had a few days off work and gradually got better and went back to normal duties.

32      The plaintiff was cross-examined at length about this attendance at Sunshine Hospital.  He was doing gardening and watering the flowers.  He did not injure his back when lifting.  Pain came on in his abdomen when he was watering.[8]  He did not remember telling the Hospital the pain was in his mid-back.  It was abdominal and chest pain.[9]  He felt he had had a heart attack and went to Emergency.  There was no pain in his lower back.[10]

[8]T12

[9]T13

[10]T16

33      Panadeine Forte and Brufen were prescribed at the Hospital for the plaintiff’s chest/abdominal pain.[11]

[11]T30

34      The plaintiff could not remember any back problems before the said date and he had had no back treatment.[12]  He could not recall complaining to Dr Cenap of muscular back pain on 17 February 2014.[13]  He could not remember telling any doctors of low back problems before the said date or telling them about the Sunshine Hospital attendance.[14]

[12]T17

[13]T18

[14]T35

35      The plaintiff agreed that before the said date, he was spoken to by Paula Melhem, who worked in the defendant’s human resources department.  She told him she was worried about him and asked permission to write to his general practitioner. 

36      The plaintiff agreed at that time he was displaying unusual behaviour because of his abdominal and chest pain.  He agreed he was paranoid about the workplace and people around him, and explained that “fever and headache took over”. He agreed he was worried about people following him and spying on him.[15]

[15]T21

37      The plaintiff was aware Paula Melhem wrote to Dr Cenap and she asked his permission to do so.[16]  He did not really agree he had time off at that time because of problems with paranoia.[17] 

[16]T28

[17]T29

38      The plaintiff had problems sleeping and also problems with gambling in early February 2014.[18]

[18]T22

39      The plaintiff could remember talking to his supervisor, Neal McHugh, at work in early 2014.  He could not remember telling him that a co-worker was involved in people smuggling, but he had had trouble working with “Patrick”, a co-worker, and argued with him.  The plaintiff probably could have discussed this with Neal in a private talk in the carpark.[19]

[19]T23

40      The plaintiff agreed that he was concerned about a strange car following him but did not remember Neal telling him that the car was owned by the wife of a co-worker.[20]  Neal probably told the plaintiff to go home and look after himself and take it easy.  He could not remember whether Neal had told him to take off as much time as he liked. The plaintiff then took annual leave and he just wanted to have a rest.[21]  He then agreed that Neal offered him some time off and to come back to work when he was ready.[22]

[20]T23

[21]T25

[22]T24

41      The plaintiff initially said he did not know at that time that Toyota was no longer going to build cars in Australia,[23] but then agreed there had been an announcement that manufacturing in Australia was to cease.[24]

[23]T43

[24]T44

42      When shown Dr Cenap’s note of an attendance on 13 February 2014, the plaintiff ultimately agreed he was gambling then, and sometimes he had a problem with it.[25]  He agreed he had been going to the pokies and losing all his money.  Money withdrawn on his bank statement at Westend Market Hotel in December 2013 was to play the pokies.  Sometimes he lost his wages but not his whole wages.  He could not remember telling the doctor about it.  He did not remember having stress because of gambling.[26]

[25]T26

[26]T27

The incident

43      On the said date, while at work, the plaintiff was required to move and work quicker than normal.  Some unusual orders[27] were placed and he was required to move a tall fabric roll that was situated above shoulder height.[28]

[27]T46 – now and then there were large orders

[28]T45

44      When the plaintiff gave the roll a tug, it fell onto the ground, and he began to feel severe pain in his lower area and shoulders.  He had to load the roll onto the trolley, so he bent down to put one side of the fabric onto the trolley and, as he did so, he felt severe pain going down into his legs and toes, and he started to limp a bit (“the incident”).

45      In cross-examination, the plaintiff described the incident circumstances in some detail.[29]  After the incident, he had very severe back pain in his lower back.[30] He believed he attended his doctor, Dr Cenap, the following day.[31]

[29]T44

[30]T45

[31]T43

46      Thereafter, the plaintiff had about four weeks off work.  His WorkCover claim in relation to the incident was accepted.

47      When the plaintiff returned to work in about March 2014, he was put on light duties, which included hose packing, sweeping and mopping.  These duties caused him quite a bit of pain in his back, and also groin, because of the movements involved.

48      The plaintiff took painkillers to try and cope, hoping he would get better.  He tried for about six months before it became too much to bear, and he has not worked since.

49      The plaintiff agreed that when he left work in December 2014, he was engaged in full-time light duties.  However, he was hardly able to do that work.  He had to stay on.  He just did nothing – tasks like sweeping on the sweeping machine and walking.  There was no heavy lifting.[32]

[32]T47

50      The plaintiff agreed that just before he left work, he was told that he was to be moved to day shift the following week.  He stopped working that day and never came back.  His only contact with the defendant thereafter was providing it with his WorkCover certificates.[33]

[33]T49

51      The plaintiff stopped work in September 2014 because of his low back pain.[34] Since that time, he has not looked for any work or tried to do any work or made any enquiries about any work.[35]

[34]T63

[35]T49

Treatment

52      In early March 2014, the plaintiff again went to hospital with chest pains, which then cleared up. 

53      Dr Cenap referred the plaintiff for physiotherapy for his back and he has continued to have that treatment regularly since.

54      Dr Cenap sent the plaintiff for a lumbar CT scan in July 2014, which he was advised showed disc bulges in his spine.  The plaintiff also had an MRI scan of his lumbar and cervical spine in September 2014, which Dr Cenap told him confirmed his view that degenerative changes in the spine were causing his pain.

55      In about November 2014, Dr Cenap referred the plaintiff to psychologist, Ms Hatice Kurtoglu, whom he has seen regularly since.

56      The plaintiff was referred, also, to Mr Richard O’Brien, rheumatologist, whom he first saw in December 2014.

57      In the early part of 2015, the plaintiff’s neck had been getting stiff and sore, so he was referred by Dr Cenap for a cervical CT scan in April 2015 and an MRI scan the following month.

58      As at 16 September 2015, when the plaintiff swore his first affidavit, he was taking 150 grams of Lyrica twice a day, Brufen three times a day, Tramadol each morning, and also at night if his pain was bad, Panadol Osteo daily and Panadeine Forte on really bad days, but he tried to avoid taking it.

59      The plaintiff took Sumac and had prescriptions for Nexium and other tablets to deal with the side effects of his medications, namely stomach upset and nausea.  He felt dizzy a lot and sometimes his eyes felt numb.  He had trouble concentrating and he suffered from constipation.

60      As at 20 October 2016, the plaintiff was also prescribed Endep, 50 milligrams, most nights, taking Panadeine Forte on really bad days, Mogadon most nights to help him sleep and Temazepam most days.  Side effects continued and he took Nexium in relation thereto.

61      As of 16 November 2016, the plaintiff was taking Brufen every day and no longer took Temazepam.

62      The plaintiff remains under the care of his general practitioner and psychologist.  He continues to do home exercises.

63      The plaintiff attended Professor Bittar, neurosurgeon, in July and October 2015.  He sent the plaintiff for a SPECT-CT scan of his lumbar spine in July 2015.  On re-examination in October 2015, he told the plaintiff there was nothing he could offer him by way of surgery.

64      The plaintiff’s WorkCover payments and medical expenses were terminated on 4 June 2016. Thereafter, the plaintiff had to stop attending the psychologist because he could not afford treatment and he was looking for a Medicare referral for more treatment.

65      Since the end of 2014, the plaintiff has been attending hydrotherapy, which he finds of more benefit than physiotherapy.  There has not been any hands-on treatment in recent times.[36]

[36]T52

66      The plaintiff also has a number of self-management techniques for pain, doing exercises shown to him by his physiotherapist each morning and night for ten to fifteen minutes.  He uses a heat pack on his lower back in the morning and at night.  His wife sometimes gives his back a rub as well, when it was feeling really bad.  He tries to sit as straight as possible and to keep generally active.

Pain

67      As of September 2015, the plaintiff described fairly constant stabbing type pain in the lower back, which worsened with certain movements, or by moving quickly.  He got flare ups of his back pain when he did a movement he should not do.  This happened every few days and could take a day or more to settle down.

68      The plaintiff had pain and numbness in both legs, worse in the left.  This problem was constant and extended down into his knees and toes and he sometimes had pins and needles.  His legs, particularly the left, always felt stiff.

69      The plaintiff had neck pain that was fairly constant and it also felt stiff.

70      The plaintiff had constant pain on both sides of his groin which varied in intensity and sometimes the back pain was so bad that it took his mind off the groin.  His groins were also tender and if he was accidentally poked there, it could be pretty painful.

71      In general, the plaintiff would say his back pain was worse than the groin pain and bothered him more, though this was a day-to-day thing.  Usually, if he moved awkwardly, he felt back pain first, which stopped him from continuing the movement.  If he continued it, he also felt pain in the groin. Some movements resulted in pain in both areas.

72      In his second affidavit sworn in October 2016, the plaintiff described his lower back pain as being by far the worst of his problems, especially when it goes down into his legs.  He has pain in the neck, particularly when keeping it in the one spot for too long. 

73      The plaintiff then thought his groin bothered him about twenty five per cent as much as his back pain.  He felt back pain in almost everything he does and when it is at its worst, it was unbearably painful.

74      The plaintiff has back pain all the time.  He has not been free of low back pain since the incident but his pain level varies.  He needs to lie down on a daily basis and lies down once or twice a day for a couple of hours because of flare ups, at which time he takes extra medication.

75      The plaintiff agreed he told his psychologist, Ms Kurtoglu, that he suffered from lower back and neck pain, severe joint pain in both legs and knees, a numbness sensation in his legs and pain in both shoulders.[37]

[37]T49-51

76      The plaintiff’s lower back pain continues to interrupt his sleep.  He and his wife no longer sleep in the same bed as his restlessness at night disturbs her too much.  That situation has significantly affected his intimate relationship with her.  The plaintiff often has to catch up on sleep during the day.

77      If the plaintiff bends down, it is difficult to come back up and that causes a pinching type sensation in the lower back, and he also feels pain in his groin.  He has similar problems kneeling and squatting.  He can do these movements, but only slowly and with difficulty.  Getting up is the worst.  Sometimes his legs start to shake and he feels pain in his lower back.  Using his groin muscles to get up makes them very painful.  He tries to support himself on something if he tries to do these type of movements.

78      Pushing and pulling heavy things causes pain and numbness in the plaintiff’s back and shoulders.  Carrying things is also difficult and causes pain in his lower back, so he tries not to carry things too far.

79      If the plaintiff sits down for too long, his lower back pain will gradually build up and when it gets too much, he has to get up and move around.  Standing for too long is uncomfortable.  After a while, he needs to lean on something or sit down.

80      After the plaintiff has been walking for a while, his low back pain starts to build up and the pain in his groin also comes on.  Then, he has to slow down, sit down or lie down if he can.  Walking quickly is very difficult and jogging is out of the question.  He thinks he walks slower than he used to.

81      In general, the plaintiff’s pain levels in both his back and groin are worse in the cold weather.

82      The plaintiff’s back pain stops him from doing much around the house, especially heavy tasks like vacuuming and sweeping, gardening or DIY.  There is no job at home he could regularly do, even the dishes.[38]  While he eventually feels groin pain after doing anything strenuous, it is always the back he feels first and which makes him give up due to the pain.

[38]T62

83      The plaintiff can still do things in life and does his best to get out of the house so he does not go crazy. 

84      Driving for long distances is difficult, with the sitting down causing pain to gradually build up in the plaintiff’s back and eventually in his groin.  If it all gets too much, he needs to pull over and walk around a bit.  He can sit for longer than half-an-hour if he can move himself around and stretch from time to time.  He could not sit for three hours.[39]

[39]T53

85      Whilst he can drive the children to school and drive short distances around the neighbourhood, he still avoids driving long distances.  He goes shopping with his wife but she usually carries the heavy items.

86      The plaintiff does exercises at home and goes for walks around the block to keep active.

87      The plaintiff really misses working.  He had worked for Toyota for a long time and considered himself to be good at his job.  He liked feeling useful and contributing to his family and society.  He had good friends at work and missed them and the social aspect of work.  Having to stop work had been very hard for him.

88      The plaintiff used to enjoy playing soccer with his children and friends at the park but is no longer able to do so.  Prior to the incident, he was playing indoor soccer with his friends and children in a local competition.

89      Running around is too hard now and causes him pain in the groin and back.  He also used to go jogging for a couple of kilometres to keep fit but that is no longer possible. 

90      Once a month or so before his injuries, the plaintiff and his family went to places like Lorne for fishing and to play on the beach.  Fishing is too painful now because it causes back pain when he has to cast the rod and he does not feel like going anymore. 

91      The plaintiff’s social life has really suffered since the incident.  Both his pains stop him going out and sitting around with friends and he really does not like seeing people that much anymore.  Occasionally, he attends a Turkish club when he is feeling up to it, but this is happening less and less often.

92      Every second day or so, the plaintiff visits a religious social club to see his friends.  He generally stays for an hour or two and they smoke cigarettes and talk about life and religion.  He is careful to rotate his posture by sitting and standing and walking around so the pain in his back does not build up too much.  Even so, the pain will always get to a point where he has to go home and have medication and lie down.  Going to the club helps him a lot with his mental health, seeing friends and talking about God.

93      In cross-examination, the plaintiff explained that he attended a social club, a prayer group and also a religious establishment.[40]

[40]T55

94      The plaintiff agreed he was required to sit and stand when he went to the social club and church.  Sometimes, he spends up to three or four hours at the club.  He sits and stands, has a coffee and also prays.  Although he attends the club, he is not free of pain, so he could not do light duties at work if he was able to move around.[41] 

[41]T62

95      The plaintiff feels like he is not as good a father for his children as he used to be.  He cannot play with them and have fun with them like other dads.  As a result of his injury, he does not feel that he and his children are as close as they used to be.

96      The plaintiff’s injuries have affected his marital relationship a lot and everything is left on his wife’s shoulders now.  She does not work, so they are under a lot of financial stress and they have lost a lot of their closeness.  The plaintiff has lost a lot of his libido as a result of his injuries.  A lot of sexual positions are uncomfortable and cause him back or groin pain.  Sex is not as enjoyable for him and he does not feel like doing it anymore.  He does not think that all the medication helps him either.

97      In general, the plaintiff feels quite down and anxious about the future.  He feels useless and like he has nothing to offer.  He is bored all day and just sits around.  He wonders what he will do with the rest of his life and he thinks he is getting more and more depressed as time goes by. 

98      In addition to back pain, the plaintiff also suffers from depression and is never free from it.  He has difficulty concentrating and problems with his memory.  His motivation is reduced and he now tends to be less social.

99      The plaintiff suffered from some anxiety and stress before his back injury which he thought was a result of the hernia injury.  After he suffered his back injury, his psychiatric condition deteriorated significantly.

Work future

100     The plaintiff would like to return to work one day if he could find a suitable job, but his doctors have told him he is no longer fit for manual type work and he did not know what else he was suited for.

101     Since his WorkCover payments ceased, the plaintiff has had to go on Centrelink and he is on Newstart.  He is not required to look for work because his general practitioner has given him a Centrelink certificate saying he cannot work at the moment.

102     The plaintiff is not currently looking for any work but would really like to get back to work if he could, because he misses it a lot.  He just does not feel up to it with all his pain and the medication he requires. The big thing that holds him back from working is definitely his back pain, moreso than his groin issues. 

103     With all the pain and side effects of medication and considering his medical advice,[42] it seems likely the plaintiff will not ever be able to return to any sort of manual work. He does not have experience in other than physical work and, because he cannot speak much English, he is worried he will remain out of the workforce into the future.

[42]Total Incapacity Certificates from Dr Cenap

104     The plaintiff is fully qualified as a forklift driver but could not work in that role, even if the job did not involve lifting.  If he had a factory job operating machinery without any heavy lifting, with an ability to mobilise, he could not do the job.[43]

[43]T61

105     The plaintiff cannot do anything, even sweep the kitchen floor.  He gets hurt and feels pain doing anything.  He could not work full time in a job where he could sit and stand and there was no heavy lifting. [44]

[44]T56

106     There is not a job the plaintiff could do for even an hour.  He has not looked in the newspaper because he cannot work.  He would never look whilst he feels the way he currently does.  He would like to work, but he cannot.  He has not been able to contemplate doing any work since he was injured.[45]

[45]T61

107     The plaintiff agreed that last month, he had to attend the Sunshine Magistrates’ Court but forgot to do so.[46]  This attendance related to offences involving his wife in 2015.  He did not mean to hurt her.  They argued because she asked him why he was not working.[47]  The only problems he has had with his wife have been since his back injury.[48]

[46]T38

[47]T37

[48]T63

108     The plaintiff is still doing a men’s behavioural change program as part of his twelve-month good behaviour bond.  He is in the last three weeks of a fourteen-week course which he started in August.[49]  Whilst he knew he had to complete the course before he attended court in October, he did not start it earlier because of his pain.  He has not been contacted by anyone about his failure to attend the hearing.[50]

[49]T37

[50]T38

109     The plaintiff was cross-examined at length about the course, as to where it was located and what it involved.  His answers were somewhat vague in relation to these details.[51]

[51]T58-60

110     In the financial year 2010-2011, the plaintiff grossed $53,353.  In the following financial years, he grossed $59,186, $61,990 and, in 2013-14, $57,538.

Lay evidence

111     The plaintiff’s wife, Hacer, swore an affidavit on 20 October 2016.  They have been married for about nineteen years.

112     The plaintiff takes medication all the time that makes him dizzy and he tells her it makes him sick in the stomach.

113     The plaintiff seems quite forgetful and has a bad memory.  He denies ever saying things he has in fact said and then a fight occurs.

114     Mrs Turan sees the plaintiff doing his exercises most days and grunting and moaning while he does them.  It seems the exercises are difficult for him to perform.

115     On good days, the plaintiff goes for a walk around the neighbourhood.  Before his injury, he went for long walks.  He now walks really slowly and does not walk long distances.

116     Sometimes she gives him a massage, mostly on the low back, but sometimes around the groin.

117     Mrs Turan can tell that the plaintiff is in pain because he makes noises a lot, like a grunting sound.  He also frowns and gets angry and frustrated.  He huffs and puffs and is very agitated.  Sometimes he will tell her he is in pain.  The majority of time it is because of his back and he occasionally mentions his neck or groin.

118     A while ago they stopped sharing the same bed because the plaintiff tossed and turned all night and she could not get any sleep.  She can hear him in the middle of the night when he gets up to put the kettle on or she sees the light go on every night.  In the morning, he has to get up because it is his job to take the children to school but he looks tired and unhappy and seems depressed to her.

119     Mrs Turan sees the plaintiff sleep during the day when they are at home together.  Sometimes they go shopping and, if they do, she carries the heavy items.  He does not go shopping by himself that much.

120     The plaintiff goes to his religious social club fairly often.  That seems to cheer him up a bit.  He is no good around the house anymore.  Pre incident, he did the gardening and DIY and helped with heavy housework.  Now, he does not really do anything and will not even bring in the rubbish bin.  She virtually has to do all the household tasks.

121     All of this is a big change from how the plaintiff was before his back injury.  Prior thereto, he was a proud working man who was happy to be providing for his family and was all about work and family.

122     The plaintiff used to kick the soccer ball with the kids or go to the indoor stadium to play with his friends.  He went jogging to keep fit and he looked a lot healthier.  He went for trips to Williamstown, Geelong or Lorne.  He loved to fish in particular.  She has tried to make him go fishing, but he has refused.  He tells her there will be no comfortable seats anywhere.  He gets cross and the discussion turns into a fight, so she does not bother asking him anymore.

123     Since his back injury, the plaintiff is no longer the same man. She finds this situation very upsetting and it has put significant strain on their relationship.

The Plaintiff’s treaters

124     Mr Bui, endoscopist and gastrointestinal surgeon, reviewed the plaintiff in December 2013, having carried out a laparoscopic bilateral inguinal hernia repair on 4 September 2013.

125     Mr Bui noted the plaintiff had then returned to full work duties.  He had complained of pain around both groins when he performed strenuous work; however, that had not affected his work capacity.  Clinical evidence revealed no evidence of hernia recurrence.

126     Mr Bui explained to the plaintiff that sometimes pain around the mesh can take a while to resolve.  He could not identify any sinister signs and he advised the plaintiff he could carry on with his normal duties. No specific review appointments were made.

127     The plaintiff attended the Emergency Department at Sunshine Hospital on 5 February 2014.  It was noted in the hospital report that the diagnosis was unspecified backache.  The plaintiff injured his back lifting while gardening at the weekend.  His history was not consistent with an acute coronary syndrome.

128     The plaintiff presented at Sunshine Hospital Emergency on 8 March 2015 when chest pain was diagnosed.  No acute pathology was identified; however, there was a notable flat affect suggestive of ongoing depression, although the plaintiff did not express any suicidal ideation.

129     Dr Cenap most recently reported on 25 October 2016.  He noted the plaintiff had started to see him on 13 February 2014, having been unhappy with his doctor at that time.

130     The plaintiff was then having lower back pain and headaches, which had continued, and he was placed on light duties around March 2014.  He had hydrotherapy and non-steroidal anti-inflammatories and analgesics, and investigations.

131     The plaintiff had to stop work in September 2014 because his pains were getting worse, despite strong analgesics and hydrotherapy.

132     Dr Cenap thought the plaintiff’s condition was work related.  He considered the plaintiff had multi-cervical and lumbar disc prolapses with foraminal narrowing and degeneration which was giving him neck and back pain and stiffness, with his pain radiating to his arms and legs, as well as having headaches, insomnia, depression, an Adjustment Disorder, anxiety and stress.  There was also persistent bilateral groin pain following surgical repair.

133     As of October 2016, Dr Cenap thought the plaintiff had no capacity to work in pre-injury employment or alternative duties.  On his back injury alone, he currently had no work capacity.  Psychiatrically, he had no current work capacity.

134     In terms of the hernia injury alone, Dr Cenap thought the plaintiff may be able to do a very light office job with restricted bending and lifting.

135     Dr Cenap thought the plaintiff would need to continue further treatment for his medical conditions.  Up to October 2016, the plaintiff had not improved and it looked unlikely that he would improve with the current treatment.  He needed further assessment to see whether spinal surgery or nerve ablation was an option.  His treatment with medication, hydrotherapy, physiotherapy and pain management should continue.  The plaintiff also needed to be seen by a psychiatrist.  Overall, Dr Cenap thought his prognosis did not look good.

136     Dr Cenap noted the plaintiff was currently taking Lyrica, 150 milligrams; Tramal, 200 milligrams; Brufen, 400 milligrams; Endep, 50 milligrams daily and Mogadon, 5 milligrams daily.  He was being seen two or three times per month and had hydrotherapy once or twice per week. 

137     Dr Cenap considered the plaintiff’s condition was likely to continue indefinitely.  He thought the plaintiff did not have the fitness for alternative employment, taking into account his injuries, in particular his lower back injury, his age, his language difficulties, his work background, skills and experience.

138     Dr Cenap currently provides Centrelink medical certificates. Following an examination on 23 June this year, he certified the plaintiff as unfit for work or study from 5 June to 5 September 2016, due to cervical and lumbar disc prolapse from the date of the incident, the symptoms being pain, and problems with reduced mobility.

139     Mr Richard O’Brien, rheumatologist, first saw the plaintiff in December 2014 on referral from Dr Cenap.

140     Mr O’Brien then thought the plaintiff was not fit for pre-injury work but may be fit for alternate duties.  He probably should work in reduced hours, maybe three days a week and six hours per day, and should not be required to lift more than 2 kilograms.  Further, the plaintiff should be able to have 5-minute breaks every 25 minutes.

141     On review on 17 August 2015, the plaintiff reported ongoing pain affecting his lower back and legs and had difficulty with standing or walking more than a few minutes.  He was also very restricted regarding any activities, including bending, twisting or lifting.

142     On examination, lumbar spine movements were reduced and the plaintiff’s thoracolumbar spine was very stiff.  Bilateral straight leg raising was to 40 degrees.  There was no definite neurological abnormality in the lower limbs.

143     Mr O’Brien confirmed his earlier diagnosis that the plaintiff had ongoing mechanical low back pain of uncertain aetiology.  He thought it may be secondary to possible disc injury or facet joint arthritis and there was certainly an element of musculoligamentous strain.

144     Noting significant gains had not been made by treatment, multimodality therapy could be considered, although Mr O’Brien doubted whether it was likely to be of any benefit.  He considered hydrotherapy should be continued. 

145     Mr Richard McGlynn, physiotherapist, treated the plaintiff from December 2014 to February 2015, without significant improvement of his chronic lower back pain.  He thought it might be worth referring the plaintiff for chronic pain management with the view to some improvement. 

146     Professor Bittar first saw the plaintiff in July 2015 on referral from Dr Cenap. Following that appointment, Professor Bittar organised flexion extension lumbar spine x-rays and a lumbar SPECT-CT.

147     On review on 19 October 2015, Professor Bittar noted there had been no significant change in the plaintiff’s condition.  He complained of lower back pain radiating to his buttock and legs, with the left side more severely affected.  Symptoms were constant and the average severity of back pain was 8 to 9 out of 10.

148     Professor Bittar thought the SPECT-CT demonstrated increased radioactivity in the right sacroiliac joint and noted the flexion extension lumbar spine x-rays did not demonstrate any instability.

149     Professor Bittar diagnosed aggravation of lumbar spondylosis consistent with the September 2014 MRI scan.  He considered employment had been a significant contributing factor.  He did not think surgery was indicated and that the plaintiff should participate in an outpatient pain management program. 

150     Professor Bittar considered the plaintiff’s prognosis was poor.  He thought the plaintiff sustained a very serious injury to the lumbar spine and was likely to continue to experience significant symptoms and associated disability into the foreseeable future.

151     Professor Bittar considered the plaintiff was then unfit for pre-injury employment and alternate duties.

152     The plaintiff was referred by Dr Cenap to Ms Kurtoglu, psychologist, in November 2014 for assessment and management of his presenting issues and symptoms.  The referral letter outlined the plaintiff’s back injury and depressive and anxious symptoms.  Treatment started in April 2015.

153     The plaintiff described chronic low back pain, pain in both legs, knees, shoulders and neck.  He was also suffering from anxiety and depression.

154     Ms Kurtoglu noted the plaintiff had been diagnosed with a recurrent Depressive Disorder that was severe without psychotic features, based on a number of factors.  He had also been diagnosed with Generalised Anxiety Disorder.

155     According to the plaintiff’s presenting depressive and anxious symptoms, Ms Kurtoglu thought he was not capable of performing his pre-injury duties and alternate duties.  She noted he had been already struggling to manage his severe depression and anxiety, and it had been highly challenging for him to cope with his anger and agitation and to interact with others.  Further, he was suffering from severe concentration difficulties and will not be able to focus on his duties. 

156     Ms Kurtoglu thought it was not possible to make any comment about the plaintiff’s near future prognosis.  She considered he had developed a Major Depressive Disorder and Generalised Anxiety Disorder as a result of the work-related injury.  It was highly likely he had suffered from that condition as long as he was not able to manage his chronic lower back pain and pain in both his shoulders, legs and neck.

157     Ms Kurtoglu noted the plaintiff’s psychological disorders had had a significant effect on his lifestyle and his life had changed considerably since the development thereof.  He had become withdrawn from people and hardly visited his family and friends.  He generally felt lonely and isolated.

Medico-legal evidence

158     The plaintiff saw Dr David Kennedy, sports and industrial physician, in October 2016. 

159     The plaintiff then complained of persistent significant back pain with a pain level of 8 out of 10 and also neck pain and stiffness.  There was some aching and discomfort in the groin.

160     On examination, there were no signs of recurrence of the inguinal hernia; however, there was tenderness in the inguinal region, worse on the left.

161     There was tightness and tenderness, quite markedly in the lumbosacral region, and movement was restricted.  Straight leg raising was very tight to 50 degrees bilaterally.

162     Dr Kennedy thought the plaintiff had sustained a myofascial injury to the lumbar spine with significant acceleration and exacerbation of a previously asymptomatic lumbar spondylosis, with specific damage sustained to the L4 and L5-S1 intervertebral disc and posterior facet joints.  He also had a myofascial injury to his cervical spine.

163     Physiologically, Dr Kennedy thought the plaintiff had an organic component with respect to the pain relating to the lower back injury due to the myofascial damage sustained, and the significant acceleration and aggravation of the lumbar spondylosis.

164     There was some minor damage to the L4-5 and L5-S1 intervertebral discs, as noted on the MRI scan, with endplate changes at L5-S1 and minor canal stenosis at that level, and also at L4-5.

165     Dr Kennedy thought the plaintiff had a physical impairment with an impairment of a physical function in conjunction with disability relating to the injury sustained to the lumbar spine, with damage to the L4-5 and L5-S1 intervertebral disc and posterior facet joints. There was also a minor physical impairment as a consequence of the neck injury.

166     Dr Kennedy considered these physical impairments were likely to last for the foreseeable future.  As a consequence thereof, he thought the plaintiff would continue to have significant pain and restricted movement in his lumbar spine and, to a lesser extent, to his neck.  He would also have a feeling of discomfort in his groins when standing and performing heavier manual handling tasks.  His ability to engage in social, recreational and domestic activities had been impaired because of the pain and discomfort in the three injury areas.

167     Dr Kennedy thought the plaintiff was precluded or restricted with activity relating to repetitive bending, twisting and turning, as well as lifting or performing manual handling, which would aggravate the three conditions.

168     Dr Kennedy noted the plaintiff’s problems with prolonged posture, aggravating the physiological problems in the lower back and, to a lesser extent, the neck, and that standing for any time, there was swelling and a feeling of fullness in the inguinal region.

169     Dr Kennedy thought the plaintiff was unlikely to be able to return to his pre-injury occupation as a storeman in the foreseeable future by reason of his physical injuries and impairments involving, particularly, his thoracolumbar spine but, also, to a lesser extent, his neck and bilateral inguinal region.

170     Dr Kennedy thought the plaintiff would also have difficulty returning to any occupational duties for which he had the appropriate skills, training, education and work experience, taking into account his age, poor command of English and the ongoing significant physical restrictions, particularly in relation to the functioning of his spine.

171     Dr Kennedy considered the plaintiff’s prognosis was poor, with him having sustained a very serious injury to his lumbar spine, and injuries to his neck and bilateral inguinal region, and it was likely those problems would continue, with the plaintiff experiencing significant symptoms with ongoing impairments and disabilities in relation to activities of daily living for the foreseeable future.

172     Dr Mittal, pain physician and specialist anaesthetist, examined the plaintiff in October 2016. 

173     On examination of the lumbar spine, there was bilateral paravertebral muscle spasm.  There was markedly reduced flexion and extension.  Facet joint loading on both sides was positive.  There was significant tenderness, both in the midline and paravertebral region to light palpation.  There was bilateral sacroiliac joint tenderness. 

174     Straight leg raising was to 25 degrees and limited by lower back pain.  Motor examination was limited due to ongoing issues with pain and would be rated a 3 to 4 out of 10.  Sensory examination revealed an area of hyperalgesia to pinprick and light touch in the entire feet bilaterally, as well as the medial calf region.

175     Dr Mittal thought the most likely sources of pain included:

·Central sensitisation with spreading of pain given by increased sensitivity to light touch pinprick as well as mechanical allodynia.

·There may be underlying contributors to the plaintiff’s pain, which would include a paravertebral muscle spasm leading to increased musculature tenderness.

·There may be an element of facet joint pain, both in the cervical and lumbar spine, but that was difficult to elucidate, given the increased overlying generalised sensitivity.

·Upper limb pain sounds neuropathic in nature; however, not specific to any particular dermatome.

·Lower limb examination also reveals neuropathic pain, with the dermatomes not particularly specific; however, the pattern of pain was consistent with L5 and S1 radicular pain.

·Overlying depression and anxiety, with lack of education regarding pain processes contributing to the underlying presentation.

·Some elements of pain behaviour secondary to poor understanding of pain, fear avoidance behaviour, increased muscle spasms, as well as ongoing chronic pain.

176     Dr Mittal recommended a multidisciplinary pain program under the care of a pain specialist and considered the plaintiff would benefit by a psychiatric review. Review by an occupational physician was also considered appropriate.

177     Dr Mittal thought the lower back injury certainly had an organic component which included paravertebral muscle spasm, facet joint pain, and possible discogenic pain followed by central sensitisation.

178     Dr Mittal found it difficult to elucidate whether the pain was originating from the disc itself, despite the MRI scan findings.

179     Dr Mittal thought the plaintiff’s capacity to engage in social, recreational and domestic activities was fairly limited.  As a result of the three conditions, there was certainly restriction with respect to lifting, bending, twisting, stooping and prolonged postures, but occupational physician assessment was more appropriate.

180     Dr Mittal thought the plaintiff was not able to return to pre-injury duties because he required further treatment for chronic pain management and his condition was difficult to reverse, particularly where there were elements of central sensitisation.

181     Realistically, the plaintiff did not have any fitness to engage in alternative employment in the foreseeable future with respect to his underlying vocation, language barrier, as well as uncontrolled chronic pain.  He was also on medications that could impair his cognitive function. 

182     Dr Mittal was fairly guarded with the plaintiff’s progress.  He regarded it to be poor, given it had been two years since the injury, and he had developed a Chronic Pain Syndrome, including some central sensitisation.

183     Neurosurgeon and spinal surgeon, Dr Aliashkevich, first saw the plaintiff in February 2015 and re-examined him in October 2016.

184     On the first examination, the plaintiff had diffusely reduced strength in his lower limbs associated with pain.  Muscle tone and bulk were normal, and deep tendon reflexes appeared depressed.  There was no sensory deficit on pinprick testing.  Cervical and lumbar spine movement was restricted, with lumbar flexion possible to only less than 15 degrees and significant paravertebral tenderness and spasm on palpation.

185     Dr Aliashkevich recommended a SPECT-CT scan.

186     On re-examination, the plaintiff’s condition remained essentially unchanged, with persisting pain in his neck, back, legs and groin.

187     Dr Aliashkevich thought the plaintiff had chronic refractory mechanical lower back pain and bilateral sciatic pain, more on the right side, chronic neck pain and stiffness, disc disease and endplate changes in segment L5-S1, central and right paracentral intervertebral disc bulge in segment L4-5, disc disease in segments C3-4, C4-5 and C5-6 on the MRI scan, and persistent pain in both groins, and chronic constipation.

188     Dr Aliashkevich considered an organic component to the plaintiff’s pain with respect to his back and neck injury related to aggravation of a pre-existing degenerative spinal condition, with subsequent development of a Chronic Pain Syndrome subsequent to further assessment, which may require the involvement of a pain specialist.

189     Dr Aliashkevich thought the plaintiff’s capacity to engage in social, recreational and domestic activities was restricted due to persisting pain and the need to take multiple painkillers.

190     From a spinal perspective, Dr Aliashkevich considered that the plaintiff was restricted from lifting weights in excess of 10 kilograms, excessive bending and twisting.  He recommended the plaintiff not sit for more than half-an-hour and not drive more than 45 minutes without a break.

191     The plaintiff advised he had difficulties walking for more than 15 minutes without a rest.  Dr Aliashkevich thought functional capacity may be further addressed in more detail by an occupational physician.

192     Dr Aliashkevich did not think the plaintiff was likely to return to his pre-injury duties in the foreseeable future.  Realistically, he considered the plaintiff had very limited transferrable skills and a longstanding pain condition affecting his ability to participate in alternative employment.  The prognosis was guarded.

193     Dr Ingram, psychiatrist, examined the plaintiff in September 2016. 

194     The plaintiff told Dr Ingram his main psychological problem was that he felt down all the time and was no longer able to enjoy anything at all, even spending time with his children.  He related his depression to his pain and the fact he had been unable to work, or provide for his family, which made him feel worthless.

195     Associated with the plaintiff’s depression was a loss of motivation.  He had become more withdrawn and wanted to isolate himself.  He found it difficult to sleep because of pain.  His appetite was impaired.  As well as having felt depressed, he also felt angry about what had happened, and had become more irritable and short tempered.  He felt anxious a lot of the time and he described what appeared to be panic attacks.

196     Dr Ingram had the report from Ms Kurtoglu and also Dr Jager’s report of 30 December 2015. 

197     Following examination, Dr Ingram thought the plaintiff was suffering from a Chronic Adjustment Disorder with Depressed and Anxious Mood.  This was a secondary consequence of his chronic pain and his physical limitations and if it is accepted his pain was as a result of his work, then his psychological problems were also a result thereof.

198     Dr Ingram thought the plaintiff’s major problem was his chronic pain.  At that stage, it was not clear whether there would be any further improvement and it might be appropriate for the plaintiff to be referred for pain management.

199     Psychologically, Dr Ingram thought the plaintiff had become significantly depressed because of his pain and limitations, and he had become much more withdrawn and isolated.  He had also started having panic attacks.

200     Dr Ingram felt the plaintiff needed active treatment of his depression, noting that 50 milligrams of Endep was not an antidepressant dose.  He thought the plaintiff should be started on antidepressants and the dose built up to as high as tolerated.  Until that had happened, he would not say the condition was stable and he would have to see the prognosis as fairly negative unless there was some improvement in pain.  Ongoing psychological counselling and a psychiatric referral was appropriate. 

201     In regard to work capacity, Dr Ingram thought the plaintiff’s main limitations were related to his chronic pain, but he also did not think the plaintiff could presently work because of his depression, and the effect that had on his motivation, energy levels and ability to concentrate.  He thought the plaintiff’s depression also had a significant impact on his ability to enjoy his domestic and leisure activities, which is likely to continue as long as he felt depressed.

202     Dr Richard Sullivan, pain specialist, saw the plaintiff in March 2015.

203     The plaintiff then walked with a slow antalgic gait.  He had pronounced discomfort and pain behaviour going from a standing to seated position, and seated to lying and lying to standing.  He was fairly withdrawn.  He reported pinprick hyperalgesia and a loss of brush sensation from a point level with the anterior superior iliac spine bilaterally down to the groin.  Deep tendon reflexes in the lower limb were normal.  There was pain on straight leg raising bilaterally to 25 degrees.  Dr Sullivan could not clearly demonstrate any sensory attenuation in the lower limbs.

204     Dr Sullivan thought the plaintiff had a chronic pain condition and there appeared to be an organic basis.  The plaintiff’s pain had worsened after the hernia surgery in the longer term, although there was some attenuation in the shorter term. In his view, the plaintiff fitted the clinical picture of having post herniorrhaphy pain syndrome.  He also appeared to have chronic lower back pain, possibly with chronic bilateral sciatica. 

205     Dr Sullivan noted there was historical, although not consistent, examination findings of bilateral radiculopathy, although the plaintiff did have radiological evidence that would suggest radiculopathy could well be part of his presentation.

206     Overall, Dr Sullivan thought the consistent diagnoses of the plaintiff were a chronic pain condition of organic basis, likely bilateral post herniorrhaphy pain syndrome, radiological evidence of cervical and lumbar spondylosis, and chronic lower back pain and chronic bilateral sciatica.

207     Dr Sullivan thought there appeared to be a degree of pain behaviour, although he imagined that was secondary to the plaintiff’s chronic pain condition and not adequate to alter his diagnosis.

208     Dr Sullivan considered the plaintiff had no capacity to return to pre-injury duties or modified duties.  He had a very limited capacity for re-engagement in the workforce because of his low skillset, limited English, and low education level.  He advised the plaintiff be returned for assessment for inclusion in a multidisciplinary pain management program.

209     The plaintiff was seen by Mr Charles Flanc, vascular and general surgeon, in January 2015 for the purposes of an AMA Assessment.

210     Mr Flanc was the only practitioner provided with the Sunshine Hospital 5 February 2014 attendance.  He thought it possible this particular incident was not primarily related to lower back pain but, rather, to more generalised pain and anxiety, and thought, for clarification, a copy of the clinical notes be requested.

211     On examination of the lumbar spine in January 2015, there was diffuse tenderness to even light pressure. There was significant restriction of movement.  The plaintiff was able to sit up on the couch with his legs straight and he could partly sit up, but had to support himself with his hands on the couch.

212     Mr Flanc thought the plaintiff’s lower back pain was consistent with a symptomatic but mild degenerative condition of the lumbar spine, as demonstrated on the MRI scan.

213     In Mr Flanc’s opinion, the plaintiff’s symptoms would have been significantly influenced by non-organic factors, and it was likely that he had developed a Chronic Pain Syndrome in which there was a sensitisation of pain pathways resulting in pain which was greater in severity and extent than that expected from the physical injury alone.

214     Mr Flanc considered the symptoms which radiated down the plaintiff’s legs were probably referred from his lumbar spine and there was no evidence of a radiculopathy.  He thought cervical spine symptoms were also significantly influenced by non-organic factors.

215     Mr Flanc thought that hernia repairs were solid and there was no recurrence.

216     Mr Flanc considered the plaintiff’s symptoms were significantly influenced by non-organic factors, possibly a Chronic Pain Syndrome, and he suggested that aspect be assessed by a specialist in that field.

217     Mr Flanc thought the history of the incident was consistent with musculoligamentous back strain and an aggravation of a mild degenerative condition of the lumbar spine, in the sense that they became symptomatic and remained symptomatic.

218     Mr Flanc considered the secondary development of a Chronic Pain Syndrome had amplified the plaintiff’s symptoms but, notwithstanding that, it was likely that some of his lower back pain was still physical in nature and related to the incident injury.

219     On balance, Mr Flanc thought the plaintiff’s neck pain was probably related to non-organic factors and did not reflect an injury to the neck at work, noting that there was no reference to neck pain until Dr Cenap’s letter to CGU in September 2014.

220     Mr Flanc thought the plaintiff would not be able to return to pre-injury duties, or any work involving repeated bending, prolonged standing or heavy lifting.  If one considered his physical injury alone, then he would probably be capable of at least part-time duties which did not involve these activities.

221     Mr Flanc considered that, with regard to the plaintiff’s physical injury alone, he would probably be able to perform duties such as scanning and filing for four hours a day on alternate days.

222     Mr Flanc thought the prognosis for significant improvement must be guarded and considered the plaintiff’s condition had not stabilised.

223     Dr James Rowe, occupational physician, examined the plaintiff on behalf of CGU in June 2015.  While he stated he was not a psychiatrist, Dr Rowe thought the plaintiff showed the demeanour of a depressed person.

224     On examination, there was almost no movement in the neck or lower back.  There was a strong functional overlay in the plaintiff’s presentation, with back movements varying according to the posture adopted.

225     Dr Rowe would defer to the psychiatrist’s opinion that the plaintiff is profoundly depressed, noting Dr Boffa thought he needed treatment for depression.

226     Dr Rowe then could not see the plaintiff going back to work within the next six months.  He thought the current treatment was appropriate, and did not recommend any change.

227     Dr Rowe thought the plaintiff’s condition was related to the incident.

228     Dr Rowe considered the plaintiff was not fit for work in the main because of his psychiatric state.  He was not fit for pre-injury hours or duties, or modified duties, and that was unlikely to change in the near future.

229     Dr Rowe considered, from the physical point of view, the plaintiff may have some capacity for work with a 5-kilogram lifting limit; however, because of his psychiatric state, it was unlikely he would return to work in the near future.

230     Dr Rowe thought the plaintiff’s incapacity was still materially contributed to by the compensable injury.  There was a strong functional overlay, but he deferred to the psychiatrist’s opinion with regard to the plaintiff’s capacity.  That is, the plaintiff was suffering with profound depression, which may lift in the future.  He thought the plaintiff’s condition had not resolved and was ongoing.

Investigations

231     There was a normal bilateral groin ultrasound carried out in July 2013.

232     A CT scan of the lumbar spine was organised by the plaintiff’s general practitioner in July 2014.  It was reported there was no disc protrusion or significant thecal or nerve root compression detected.  The central canal appeared at the lower limits of normal in dimensions at L3-4 and L4-5.

233     An MRI scan of the cervical and lumbar spine was organised by the plaintiff’s general practitioner in September 2014.

234     It was reported there was normal lumbar lordosis.  There was no focal marrow signal abnormality identified.  No pars defect or spondylolisthesis was seen.  The conus terminates at the level of L1 with otherwise normal cord signal identified.

235     It was concluded there was a minor central canal stenosis seen at L4-5 and L5‑S1, mild bilateral L4-5 and L5-S1 level foraminal stenosis, no significant nerve root impingement demonstrated and prominent endplate degenerative changes at L5-S1, which could be associated with discogenic pain.  There was no pars defect or spondylolisthesis identified.

236     A low dose helical CT scan of the cervical spine was organised by the plaintiff’s general practitioner in April 2015.  It was reported there was loss of upper lordosis and no bone or gross soft tissue neuro impingement.

237     An MRI scan of the whole spine was carried out at the Western Hospital in May 2015.  It was reported there was no abnormality detected in the spine apart from mild, uncomplicated diffuse degenerative changes.  There was no MRI scan evidence of significant myeloradiculopathy seen at any level.

238     A whole body scan with SPECT-CT was organised by Professor Bittar in July 2015.

239     It was reported there was low grade, but active, degenerative change in the inferior aspect of the right sacroiliac joint and a hyper dense area on the sacral side of the portion of the joint which is of uncertain clinical significance, but likely benign.  Further assessment with an MRI scan was recommended.  There was no scintigraphic evidence of an active lumbar facet joint arthropathy or metastatic bone disease. 

Admissions

240     Counsel for the defendant admitted the clinical files of the treating psychologist and general practitioner had been seen viewed.  There was also an admission that surveillance of the plaintiff had been carried out.[52]

[52]T64

Claim documents

241     On 4 March 2014, the plaintiff lodged a Claim for Compensation claiming injury to his lower back on 27 February 2014.  He “lifted roll from the floor, felt and heard his back muscle, leg pain, headache”.  At the time, the plaintiff’s usual pre-taxation hourly rate was nearly $30 an hour and his usual pre-taxation weekly earnings were $1,237.00.

242     The Medical Panel, on 16 August 2015, thought the plaintiff had a zero per cent whole person impairment in relation to the lower back.

243     By letter dated 28 April 2016, the plaintiff’s entitlement to medical and like expenses was terminated in relation to the incident injury on the grounds, inter alia, that he was not incapacitated for work and he no longer required any treatment for his injury.

The Defendant’s medical evidence

244     Dr Boffa, occupational physician, first saw the plaintiff on 10 October 2013 in relation to his hernia condition. 

245     Dr Boffa then thought the plaintiff could not return to pre-injury hours and duties but he had a current work capacity and could immediately return to alternative and modified pre-injury duties to be determined by a worksite visit.  He would need a graduated return to work, beginning with four-hour shifts, five days a week.  He could return to alternate duties involving administrative work performed sitting or standing.  Lifting should be restricted to 2.5 kilograms.

246     At the worksite assessment on 16 October 2013, Dr Boffa anticipated a full return in three weeks. 

247     Dr Boffa examined the plaintiff on 28 July 2014.  The plaintiff then gave a history of low back pain in the incident.

248     Dr Boffa then diagnosed mechanical low back pain with no current radiculopathy.  The injury had not resolved.  The plaintiff was then working pre-injury hours and Dr Boffa believed he would graduate to pre-injury duties six weeks into a three months’ gym and pool membership.

249     The plaintiff was then performing alternative duties.  Dr Boffa believed he may graduate to pre-injury duties on non-continuous days over the next few weeks, once he had commenced a supervised gym and pool membership with a full return after six weeks.

250     There was a further review on 5 November 2014. 

251     Dr Boffa then thought the plaintiff was unable to return to pre-injury duties and hours and had a physical capacity for suitable duties and hours.  He considered the plaintiff required duties that did not involve repetitive bending and twisting, carrying 5 kilograms or prolonged sitting and standing.  The compensable injury had not resolved.

252     There was a worksite visit on 28 November 2014.  Dr Boffa then noted the plaintiff initially returned to scanning and filing duties in the office working full time until he ceased in September 2014 because of escalating low back pain.

253     Dr Boffa thought the plaintiff should return to the warehouse where he may more easily vary his posture than in the office and he may immediately return to driving a forklift and a ride-on sweeper for up to an hour at a time between breaks.

254     On that occasion, Dr Boffa concluded the plaintiff had developed mechanical low back pain with right lower limb sensory radiculopathy in the incident in the context of a pre-existing Anxiety Disorder.  He noted recent presentation exhibited worsening pain behaviours whilst still not working.  He thought suitable duties were identified on that worksite assessment but that return to work would not occur until the plaintiff’s pre-existing Anxiety Disorder was satisfactorily managed (the plaintiff volunteered he was feeling anxious and suspicious of people, including family).

255     In a supplementary report of January 2015, Dr Boffa advised he thought the plaintiff had a physical capacity for work in the terms and conditions outlined in the return to work program and he noted Dr Jager thought the plaintiff also had a psychological capacity.

256     The return to work plan prepared on 16 January 2015 involved the plaintiff working four hours a day, five days a week, with no lifting of products over 5 kilograms, tasks that avoided repetitive lifting, bending and twisting and prolonged sitting or standing.

257     The handwritten notes of the plaintiff’s attendance at Sunshine Hospital on 5 February 2014 set out the plaintiff was doing light work in the garden on Saturday afternoon, four days ago.  “It” started when lifting something.  The pain started in the mid back and radiated down both coastal margins.  The pain was aggravated by bending forward.  When pain was bad, he had difficulty breathing.  Deep breathes aggravated the pain. 

258     On examination, it was noted there was no spinal tenderness, and pain was worse on movement. The plaintiff was prescribed Panadeine Forte and Ibuprofen.

259     Following examination on 15 January 2014, Dr Lee expected the plaintiff to be fit for normal duties in relation to the hernia condition. 

260     On 28 February 2014, Dr Lee certified the plaintiff fit for modified duties from 28 February to 7 March 2014 due to right lumbar back strain.  He imposed restrictions of no bending or twisting of the back, no lifting of more than 5 kilograms and no forceful pushing or pulling.

261     Dr Cenap’s note of 13 February 2014 set out the plaintiff worked nightshift for twelve years –“Stress secondary to gambling. Now stopped.”

262     On 17 February 2014, Dr Cenap noted “back pain muscular”.

263     Following examination on 20 March 2014, Dr Cenap certified the plaintiff fit for modified duties from that date until 16 April 2014.  Restrictions were for no bending or twisting, no lifting above 5 kilograms and no pushing or pulling.  The diagnosis was right lumbar back musculoskeletal injury on 17 February 2014. 

Medico-legal examiners

264     Dr Joseph Slesenger, specialist occupational physician, examined the plaintiff in December 2015. 

265     On examination, the plaintiff advised of ongoing lower back pain, concentrated in the middle of the lower back, radiating to the right leg at a level of 8 to 9 out of 10.

266     Dr Slesenger noted the plaintiff presented with chronic neck and back pain, although there were a number of non-organic features to his clinical examination.  He considered there was no physical basis for the plaintiff’s impairment or disability and there might be a psychogenic component.

267     Dr Slesenger noted clinical evaluation demonstrated severe restriction to the cervical and lumbar spine on movement.  However, these were noted to improve upon distraction.  There were other non-organic features to the plaintiff’s presentation. He also presented with psychological impairment but that was outside Dr Slesenger’s area of expertise.

268     Based on the physical impairment alone, the history, examination and review of documentation, Dr Slesenger thought the plaintiff had no physical basis for his impairment.  Based on the compensable physical injuries, he could return to pre-injury duties and hours.  Given the plaintiff’s current deconditioning, Dr Slesenger recommended a graduated return to work.

269     Dr Slesenger thought the plaintiff had a work capacity, provided the following restrictions were complied with – no push/pull, carry, lift over 5 kilograms, no repetitive bending or twisting, no over shoulder reaching – working four hours a day, and five days a week.

270     Dr Slesenger thought the plaintiff could return to his pre-injury duties based on the physical impairment alone.  In his view, the plaintiff has a psychological impairment which may be a significant barrier to his recovery.  He recommended a cautious review of the plaintiff’s need for medication as he considered there was no physical basis to his current impairment and disability.

271     Dr Jager, psychiatrist, first examined the plaintiff on 23 December 2014.

272     The plaintiff told him he last felt completely well on the day of the incident.  He had some time off work, then was on restricted duties, and never returned to full duties, and ceased work in September due to his pain.

273     The plaintiff advised he felt depressed and anxious most of the time and angry some of the time.  He had no enjoyment in life.  He had difficulty getting to sleep and staying asleep.  His appetite was reduced.  He had no libido.  His concentration was fair.  He had frequent suicidal thoughts but made no suicide attempts.

274     Dr Jager noted the Certificate of Capacity signed by Dr Cenap in November 2014 declaring the plaintiff was unfit for any duties.  He also had Dr Boffa’s report of November 2014.

275     Dr Jager thought the plaintiff suffered a Major Depressive Disorder attributed to by the claim of physical injury which was causing an incapacity for pre-injury duties and hours.  He considered the plaintiff was fit for half-time work only due to reduced energy.

276     On re-examination in June 2015, the plaintiff reported severe depression most of the time and pain was almost always on his mind.  He was frequently anxious.  He had no enjoyment of life. There were similar complaints to those on the previous examination, although suicidal thoughts had ceased.

277     Dr Jager again diagnosed a Major Depressive Disorder with Anxiety.

278     Dr Jager noted the plaintiff received minimal treatment which was insufficient and therefore inappropriate and thought he required more aggressive treatment of his depression with management by a consultant psychiatrist using a therapeutic dose of antidepressant medication and talking therapy on a fortnightly basis.  This condition had caused an incapacity for pre-injury work and the plaintiff was still fit for half-time work within physical restrictions.

279     On further examination on 1 December 2015, the plaintiff described having lots of problems at home and felt bored.  He was arguing with his wife and children.  He had lower back pain.  He was depressed all the time and anxious and angry some of the time.  He had no enjoyment of life.  He still had the same problems with appetite, libido and sleep, and his concentration was patchy.

280     On that occasion, Dr Jager diagnosed a mild Chronic Major Depressive Disorder with Anxiety.

281     Dr Jager thought the plaintiff was fit for full-time work within his physical restrictions.  He maintained his views as to the need for psychiatric treatment.

282     Dr Jager was then provided with Dr Slesenger’s report of December 2015 in which he stated that he believed there was no physical basis for the claims of impairment and disability and considered there may be psychogenic component.

283     Dr Jager commented that if the plaintiff no longer has a physical injury, as determined by Dr Slesenger, then there is no material relationship between his psychiatric condition and any non-existent physical injury. 

284     Dr Jager thought the plaintiff was fit for full-time work within his physical restrictions, and there was no psychiatric reason why he could not undertake his pre injury duties and hours.

The Defendant’s lay evidence

285     Neal McHugh, warehouse supervisor with the defendant, swore an affidavit on 18 October 2016. He was the plaintiff’s supervisor on nightshift and communicated regularly with him in that capacity.

286     About a week prior to the alleged injury, the plaintiff approached him and said he could not work with a co-worker whom he said was involved in people smuggling.  The plaintiff was then depressed and crying.

287     Mr McHugh took the plaintiff outside the workplace where the plaintiff expressed paranoia about a strange car in the carpark.  Mr McHugh assured him it was a car belonging to the wife of a co-worker, but the plaintiff was not convinced and said people were after him and that he was being followed.

288     The plaintiff calmed down and Mr McHugh asked him if he was okay to drive home, which he did.  This conversation was reported to the human resources and warehouse manager.

289     The plaintiff was then off work for about a week and returned to work a few days prior to the alleged injury when he told Mr McHugh he was okay.  He observed the plaintiff working more slowly, and on the first nightshift, the plaintiff asked for assistance from his team leader as he was falling behind.

290     Mr McHugh denied there were some unusual orders placed on the night of the alleged injury.

291     The plaintiff returned to work after the alleged injury, performing administrative duties on nightshift.  Mr McHugh communicated with him each day and asked him how he was going.

292     In about September 2014, the plaintiff was advised that he was to be moved to dayshift as there were more duties available for him.  He went home unwell that day and did not return to work.

293     Darren Hanson, the defendant’s warehouse manager, swore an affidavit on 18 October 2016. 

294     Mr Hanson interacted with the plaintiff on nightshift at the time of the handover.  The plaintiff’s English was one hundred per cent and there were no communication issues.

295     On 17 February 2014, Mr Hanson was present in a meeting with human resources and the plaintiff with regard to concerns that had been raised by the plaintiff’s supervisor.

296     At that meeting, the plaintiff said words to the effect “that people were after him” but he did not say who or why.  Mr Hanson observed the plaintiff babbling nervously and crying.  He was told he needed to consult a doctor and he was given time off work.

297     The plaintiff returned to work and shortly after his return, Mr Hanson became aware of the alleged incident injury.

298     Ms Paula Melhem, assistant manager of human resources with the defendant, wrote to the plaintiff’s general practitioner on 17 February 2014. 

299     Ms Melhem advised that the plaintiff had recently displayed unusual behaviour and paranoia in the workplace and she was concerned for his health and safety as well as those around him.

300     Recently, the plaintiff had explained he was not sleeping because he was worried for his own safety and that of his family.  He spoke about being followed by people in cars, by numbers, and being followed by “red tops” while shopping.  He was concerned he was being watched all the time. 

301     The plaintiff refused to work with his colleague, Patrick (who was Asian), because he thought he was out to get him.  After observing the plaintiff’s behaviour around Patrick, Ms Melhem was concerned for the health of both employees.

302     The plaintiff refused to see the company doctor because he was also of Asian descent. 

303     Ms Melhem hoped this brief letter somewhat demonstrated a concern for the plaintiff and his work colleague and, at that stage, the plaintiff had been asked to seek help from the doctor before returning to work. 

304     Ms Melhem wrote to Dr Cenap again on 19 March 2014, updating him on the situation.  She advised that she had had a number of conversations with the plaintiff where she saw improvements in his behaviour and demeanour and, as a result, he was able to return to work on 24 February 2014. 

305     Ms Melhem noted the plaintiff seemed to be managing well until 27 February 2014, when he complained of back pain, and was subsequently asked to see the defendant’s occupational physician, Dr Lee.  He diagnosed muscular pain and referred the plaintiff to a physiotherapist and then a WorkCover claim was submitted.

306     On 13 March 2014, the plaintiff returned to see Dr Lee and then came in to see her.

307     During a conversation at that time, the plaintiff explained what he told Dr Lee was that he was now experiencing headaches and pain in his neck and arm.  Dr Lee suggested he may be suffering from anxiety and needed to be treated for that, as it was the underlying reason for his pain.

308     The plaintiff then expressed his frustration with Dr Lee’s comments and became agitated.  Ms Melhem thought the plaintiff did not trust Dr Lee’s diagnosis and, because of this, she believed Dr Lee asked him to see another doctor.

309     The plaintiff had agreed for Ms Melhem to write the letter explaining this conversation.

310     Ms Melhem confirmed she was concerned the plaintiff was suffering from a psychological condition affecting him at work.  This was reinforced by recent occurrences.

311     Ms Melhem believed the plaintiff’s WorkCover back injury was minor but, without immediate treatment for his underlying conditions, his overall condition would not improve.  She contacted Dr Cenap, calling him to discuss the matter further. 

The Plaintiff’s criminal history

312     The plaintiff was placed on a twelve-month good behaviour bond at Sunshine Magistrates’ Court and ordered to undertake an accredited men’s behavioural change program on or before 26 October 2016. 

313     This penalty arose out of Orders made on 27 October 2015 at Sunshine in relation to charges against his wife of making to threat to kill, unlawful assault and throwing missile to injure or endanger a person on 18 February 2015.

Vocational evidence

314     MS Consulting Group carried out a 130-week vocational report following assessment on 7 and 21 April 2016. 

315     Identified suitable employment options for the plaintiff were forklift driver (with an average weekly wage of $974 for a worker over forty five), factory process worker ($733), packer ($819), product assembler ($931), machine operator ($975), receiving and despatch clerk $(1,299), meter reader ($1,180) and ticket seller ($1,129).

Overview

Impairment of the spine – sub-paragraph (a)

316     There is no dispute the plaintiff suffered a compensable injury to his lumbar spine in the incident.[53]  Weekly payments of compensation and medical expenses were paid until June 2016.

[53]T70

317     A number of diagnoses have been made of the plaintiff’s back condition. However, Dr Slesenger is the only practitioner of the view that the plaintiff’s injury, which he diagnosed as soft tissue, has now resolved.[54]

[54]T101

318     There was some focus in cross-examination on the plaintiff’s pre-incident back complaint.  However, as I indicated to the parties, any prior back complaint was minor. Significantly, the plaintiff was certified fit for normal duties as at the said date despite hernia surgery some months earlier.[55]

[55]T79

319     There clearly is a dispute as to whether the plaintiff’s lumbar condition has a substantial organic basis and, therefore, the principles in Meadows v Lichmore Pty Ltd[56] apply.

[56][2013] VSCA 201 (“Meadows v Lichmore”)

320     In Meadows v Lichmore, Maxwell P set out the two-step manner in which I ought to approach the task in this case:[57]

“…  The first step is to ask whether there is a substantial organic basis for the pain and suffering consequences relied on.  If the answer to that question is affirmative — and, of course, if the pain and suffering consequences satisfy the statutory criterion — then the applicant will succeed without the need for any ‘disentangling’ of the physical contributions to the pain and suffering from the psychological contributions.

If, however, that first question is not — or cannot be — answered affirmatively, then the applicant will need to take the next step and ‘disentangle’.  That is, the applicant will need to be able to separate the physical contribution to the pain and suffering from the psychological, in order to be able to satisfy the court that the pain and suffering consequences attributable to the physical injury satisfy the statutory test.”

[57]at paragraphs [21]-[22]

321     Counsel for the defendant submitted the plaintiff’s application pursuant to ss (a) must fail, as his present spinal condition lacks a substantial organic basis. It was submitted there was no significant pathology in the lumbar spine, and the plaintiff exhibited particularly unusual florid pain behaviours.[58]

[58]T74

322     Counsel for the defendant submitted the plaintiff’s presentation could not be accepted when he has such widespread complaints,[59] such as those he described to Ms Kurtoglu.[60]

[59]T75

[60]See paragraph 153 of this Judgment

323     Counsel for the defendant submitted Mr Flanc’s opinion that the plaintiff’s symptoms were being significantly influenced by non-organic factors “dovetailed”[61] with that of Dr Rowe, who found a strong functional overlay in the plaintiff’s presentation.  Further, when the plaintiff was seen by Dr Slesenger, there was severe restriction on examination, but improvement on distraction, and other non-organic features were present.[62] 

[61]T74

[62]T74

324     However, whilst Mr Flanc considered the plaintiff’s symptoms were being significantly influenced by non-organic factors, he thought it was likely some of his lower back pain was still physical in nature and related to the incident.

325     Dr Slesenger is “out on a limb”[63] and is the only examiner who considered there was no physical basis for the plaintiff’s current presentation.  Further, he is the only practitioner who diagnosed a soft tissue injury and the only one who considered the plaintiff had recovered, giving no explanation as to when this recovery occurred.[64]

[63]T101

[64]T101

326     Although their diagnoses differed to some extent, I prefer the views of the practitioners treating the plaintiff and medico-legal examiners, particularly those with specialist qualifications,[65] who considered the plaintiff’s lumbar condition is organically based.[66] 

[65]T101

[66]T102

327     Dr Cenap is the only practitioner who attributed the plaintiff’s present condition to multiple disc prolapses. Neurosurgeons, Professor Bittar and Mr Aliashkevich, thought the plaintiff had aggravated degenerative changes in his lumbar spine. Dr Kennedy shared this view, also finding myofascial damage. 

328     Mr O’Brien thought the plaintiff’s condition was one of mechanical back pain of uncertain ideology – a similar diagnosis to Dr Boffa, who thought the plaintiff was also suffering from worsening pain behaviour as at the end of 2014.  Dr Sullivan diagnosed an organically-based Chronic Pain Disorder.  Dr Mittal also thought the plaintiff’s condition was organically based, with presence of spasm and facet joint pain and possible discogenic pain, followed by central sensitisation.

329     Taking into account all the evidence, I am satisfied the plaintiff’s lumbar condition has a substantial organic basis.

Credit

330     As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[67]

“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”

[67](2010) 31 VR 1 at paragraph [12] (“Haden Engineering”)

331     Counsel for the defendant submitted the plaintiff was evasive and non-responsive and chose to answer questions in a manner which he knew would assist his case.  Further, it was submitted, the plaintiff’s understanding of English was in fact very good.[68]  The plaintiff was not presenting frankly and fairly and his evidence could not be accepted on that basis.[69]

[68]T69

[69]T80

332     It was submitted that, globally, credit was in issue.  Individual examples were the plaintiff’s conflicting evidence as to his discussions with Neal McHugh, his knowledge of Toyota ceasing manufacturing in Australia and the decision to him to dayshift.[70]  It was submitted those matters showed that, when pressed, the plaintiff moved to the position he knew he must move to, having initially denied a certain situation.[71]

[70]T83

[71]T84

333     Counsel for the plaintiff urged a very different situation in relation to credit.  It was submitted any issues with the plaintiff’s viva voce evidence could be explained by his psychiatric illness and his difficulties with English.[72]  At times, he gave evidence without prevarication, particularly admitting problems with his mental state and paranoia in early February 2014.[73]

[72]T98

[73]T98

334     It was submitted that parts of the cross-examination were no more than an attempt to confuse and belittle the plaintiff, particularly when cross-examined about his religious faith and, at times, the questions were confusing and difficult to comprehend.[74]

[74]T98

335     Counsel for the plaintiff submitted it was unfair to say the plaintiff was not telling the truth when he said he could not work, when his treating doctors are of this view: his general practitioner, his neurosurgeon and his treating psychologist. His treating rheumatologist thought he may have a capacity for part-time, light work.[75]

[75]T94

336     It is relevant when considering the plaintiff’s credibility that he is a man who, pre-incident, had a strong work history, having been with Toyota for eleven years.  Following his hernia surgery, he returned to full-time duties and then was injured in the incident.

337     Whilst the plaintiff described an inability to do even minor tasks due to his back condition – not being able to sweep at home or working for an hour – no doctor considered the plaintiff was voluntarily embellishing his situation.[76]

[76]T99

338     Whilst the defendant admitted surveillance of the plaintiff had been undertaken, no film was shown.[77]

[77]T101

339     Although somewhat vague on peripheral issues such as his court attendance and his involvement in the men’s behavioural course, I accept there was no significant point successfully raised against the plaintiff’s credit.   Whilst cross-examination focussed on back issues pre-incident, these were minor and not of any particular relevance to the plaintiff’s present condition.[78]  Overall, I found the plaintiff to be a truthful witness, albeit at times somewhat overstating his level of disability. 

[78]T98

Consequences

340     Counsel for the defendant did not address pain and suffering consequences in any detail, focussing initially on the issues raised in Meadows v Lichmore[79] and then on the loss of earning capacity application.

[79]Supra

341     Counsel for the plaintiff relied on the plaintiff’s pain experience, his need for treatment and the effect his injury had on his working and domestic life in support of the submission that the spinal impairment is serious.

342     As Maxwell P said in Haden Engineering:[80]

“… the evidentiary basis of the pain assessment will ordinarily comprise inter alia what the plaintiff says about the pain both in court and to doctors.”

[80](supra) at paragraph [11]

343     Since the incident, the plaintiff has complained of constant low back pain of varying severity, radiating into both legs.  At times during flare ups, he needs to lie down and rest.

344     As a result thereof, the plaintiff has difficulty with physical activities such as lifting, bending and prolonged postures.

345     For pain relief, the plaintiff frequently requires daily medication, including Lyrica, Panadeine Forte and Brufen.[81] 

[81]Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; T102

346     Counsel for the plaintiff submitted that the plaintiff, a very well-motivated man with a strong work history with the defendant, cannot do his pre-injury employment and does not have a capacity for suitable employment as a consequence of his organically-based lumbar condition.[82]

[82]T103

347     Counsel for the defendant submitted the plaintiff has a residual capacity for employment at present and if he cannot work, it is for reasons unrelated to an organically-based spinal condition.

348     It was submitted it could not be said that the plaintiff no longer had the capacity for physical work on the basis he was unable to return to full-time normal duties by the time he left the defendant in September 2014, seven months after the incident.[83]

[83]T93

349     It was submitted that post-incident, the plaintiff had a demonstrated work capacity and there was no evidence of any deterioration in his back condition leading up to September 2014, when he left the defendant’s employ.[84]  This was not a case where the employer put the plaintiff off.  Here, the employer, in fact, showed significant interest in him, as evidenced by the lay affidavits and Ms Melhem’s letters in relation to the plaintiff’s unusual behaviour in early 2014.[85]

[84]T81

[85]T69

350     The plaintiff was working alternative duties full time when he was told to move to dayshift, and then he just stopped working.  Whilst his answers in relation to this issue were somewhat confusing,[86] there was a demonstrated capacity to do alternate fulltime duties.[87] It was submitted the plaintiff’s real capacity could be tested by what he was doing at the time he left work.[88]

[86]T71

[87]T72

[88]T78

351     In response, counsel for the plaintiff submitted the plaintiff stopped work in September 2014 because of back pain.  His pains were getting worse despite strong analgesics and physiotherapy.  He was hardly coping at that stage.  He was doing minimal work – tasks like sweeping on the sweeping machine and walking.[89]

[89]T47

352     The plaintiff’s evidence in this regard was confirmed by a number of medical practitioners.  Dr Cenap noted the plaintiff stopped work because of pain, as did Dr Boffa, who thought he ceased because of escalating lower back pain.[90]  In December 2014, Mr O’Brien noted that the plaintiff stopped work because there was constant aggravation of his back pain with his work.[91]

[90]T95

[91]T97

353     Counsel for the plaintiff submitted it was not just a matter of the plaintiff leaving because he was to be given dayshift.  He did not say the only reason he ceased was the change to day shift, he just said he took a day off and did not come back.[92]  Mr McHugh’s affidavit did not take this point any further.

[92]T97

354     I accept that the plaintiff was having significant back problems doing even the lightest of duties when he left the defendant in September 2014.  Since that time, he has not looked for a job, as he did not believe he could cope with any work.  

355     Whilst this history is relevant, the issue for determination is the plaintiff’s capacity for suitable employment as at the date of hearing and into the foreseeable future.

356     In order to obtain leave in relation to loss of earning capacity, the plaintiff must establish that –

(a) at the date of the hearing, he has a loss of earning capacity of 40 per cent or more – s134AB(38)(e)(i); and also

(b) after the date of hearing, the relevant loss of earning capacity will continue permanently – s134AB(38)(e)(ii).

357     The measurement of loss of earning capacity is set out in paragraph (f) which requires a comparison between:

(i)     “without injury” earnings;  and

(ii)     “after injury” earnings.

358 The former must be calculated by reference to the six-year period specified in s134AB(38)(f).

359     “Without injury” earnings consist of the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion had the injury not occurred.

360     It is to be calculated by reference to that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity.

361     The plaintiff carries the onus of proof in relation to economic loss and particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and (g) therein.  See Barwon Spinners Pty Ltd & Ors v Podolak.[93]

[93](supra) at paragraph [70]

362     I am therefore required to determine a “without injury” earnings figure. Counsel for the defendant indicated there would be no argument about a figure of around $62,000 per annum based on the plaintiff’s earnings in 2012-2013.[94]  Sixty per cent of that figure is $37,200 per annum, or $715 per week.  The issue is whether the plaintiff has the capacity to earn in excess of that figure for the foreseeable future.

[94]T92

363     As mentioned earlier, whilst the plaintiff’s evidence that he cannot sweep or work for even an hour is somewhat extreme, his inability to work is supported by his treaters. As counsel for the plaintiff submitted, the medical evidence is overwhelmingly in the plaintiff’s favour that his back condition probably removes him from an ability to do suitable work.[95]

[95]T100

364     Treaters, Dr Cenap and Professor Bittar, considered the plaintiff has no current work capacity.  Dr Aliashkevich, Dr Kennedy, Dr Mittal and Dr Sullivan agreed that he has no capacity for his pre-injury job and thought he has only a very limited capacity for alternate employment.

365     In January 2015, Dr Boffa thought the plaintiff was fit to work 4 hours a day five days a week.  In August that year, Mr O’Brien thought he may be able to work 3 hours a day, 6 days a week on light duties.

366     Counsel for the defendant relied on the views of Dr Slesenger, Mr Flanc, Dr Rowe and Dr Boffa, submitting the plaintiff could not establish the requite loss of earning capacity on physical grounds.   

367     However, Dr Slesenger is the only practitioner who considered the plaintiff has a capacity for his pre-injury employment.  Having concluded there is no physical basis for the plaintiff’s condition, it is difficult to see how he found the plaintiff was fit for only part-time work because he had deconditioned.[96]

[96]T102

368     Mr Flanc thought, on a physical basis alone, the plaintiff had a capacity for part-time light work such as scanning and filing 4 hours a day on alternate days – 12 hours’ work per week.

369     Whilst Dr Rowe, in June 2015, found the plaintiff was totally unfit for work on the basis of his depression, from a physical point of view, he thought the plaintiff may have some capacity for work with a 5-kilogram lifting limit.

370     When he last reported in January 2015, Dr Boffa thought the plaintiff could work five days per week for four hours per day.  He has not reported since, and did not express any view as to the likelihood of the plaintiff returning to normal duties or working further hours in the future.

371     These part-time hours are consistent with Dr Jager’s earlier opinion that the plaintiff was capable of working half time due to lack of energy.  However, having received Dr Slesenger’s report, Dr Jager changed his view, concluding the plaintiff had no psychiatric impairment for work and was fit for work within his physical restrictions.[97]

[97]T104

372     Further, counsel for the defendant relied on the decision of the Court of Appeal in Peak Engineering & Anor v McKenzie,[98] submitting the plaintiff had so many complaints and had failed to identify those related to the compensable back condition which met the test of seriousness.[99]

[98][2014] VSCA 67 (“Peak Engineering”)

[99]T82

373     In Peak Engineering, Maxwell P described the difficulty faced when a separate injury is also producing pain and suffering consequences for the claimant, as well as the relevant injury.

374     In such circumstances:

“The Court must decide whether the consequences of the original injury are ‘more than significant or marked, and ... at least very considerable’.  For that purpose, it is necessary — so far as the evidence permits — to identify the consequences properly referable to the original injury, and to exclude the consequences referable to the subsequent injury.”[100]

[100]Peak Engineering (supra) at paragraph [1]

375     Whilst Dr Aliashkevich commented on the plaintiff’s work capacity from a spinal perspective, including the plaintiff’s neck, and Dr Sullivan mentioned the plaintiff’s neck and groin problem contributing to his incapacity, Dr Cenap, Mr O’Brien, Professor Bittar, Dr Kennedy and Dr Mittal expressed their view as to incapacity based solely on the lumbar spine injury.[101] 

[101]T102

376     I am satisfied on the basis of the plaintiff’s back alone, he is clearly unable to return to his pre-injury physical employment.  I also accept the preponderance of medical evidence, that his ability to return to any form of suitable employment is negligible.[102]

[102]T103

377     In my view, because of his pain and physical restrictions and the side effects of his medication, the plaintiff would not be a reliable employee and would be unable to attend work for more than a couple of hours per day.  He has only worked in physical roles and he has no training or experience in sedentary work or in any other field.

378     I do not consider the plaintiff’s attendances at poker machine venues and regular visits to the Turkish club and church indicate a capacity for employment on a regular, sustained basis.

379     In my view, at most, the plaintiff would be able to do a couple of hours of light work per day and I am satisfied, in relation to his back condition alone, he has suffered the requisite loss not having the capacity to earn in excess of $715 per week.

380     Although the jobs suggested by the vocational assessor were not put directly to the plaintiff, even working half time, as Dr Boffa suggested in January 2015, the plaintiff would still suffer the requisite loss if able to work in any of these roles.

381     I am also required to consider issues of retraining and rehabilitation pursuant to ss(g).

382 In light of my findings as to the plaintiff’s impairment and his incapacity for employment, I am satisfied there is no rehabilitation or retraining that would be appropriate to be undertaken by the plaintiff which would alter the situation that he has a permanent loss of earning capacity of 40 per cent or more. As rehabilitation and retraining have nothing to offer the plaintiff in terms of his capacity for employment, the plaintiff has satisfied the requirements of s134AB(38)(g).

383 If a worker satisfies the test laid down by the Act in relation to loss of earning capacity, then he is at large to make a claim for damages, i.e. both for pain and suffering and loss of earning capacity: See Forrest J in Acir v Frosster Pty Ltd.[103]  

[103][2009] VSC 454

384     Accordingly, I grant leave to the plaintiff to bring proceedings for damages for pain and suffering and loss of earning capacity.

385     Having granted leave to bring proceedings for damages for both pain and suffering and loss of earning capacity pursuant to ss(a), I am not required to determine the plaintiff’s application pursuant to ss(c).

- - -

[6][1994] 1 VR 436