Ummer v VWA

[2025] VCC 268

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-23-04814

Mulugeta Ummer	Plaintiff
v
Victorian WorkCover Authority	Defendant

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JUDGE:	HIS HONOUR JUDGE PURCELL
WHERE HELD:	Melbourne
DATE OF HEARING:	26 February 2025
DATE OF JUDGMENT:	26 February 2025 (ex tempore)
CASE MAY BE CITED AS:	Ummer v VWA
MEDIUM NEUTRAL CITATION:	[2025] VCC 268

REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION

Catchwords:              Serious injury – workplace injury – injury to the back – pain and suffering consequences – credit – video surveillance

Legislation Cited:      Workplace Injury Rehabilitation and Compensation Act 2013;

Cases Cited:Cakir v Arnott’s Biscuits Pty Ltd [2007] VSCA 104; Church v Echuca Regional Health [2008] VSCA 153; Johns v Oaktech Pty Ltd [2020] VSCA 10; Popal v Transport Accident Commission [2023] VSCA 222

Judgment:                  Proceeding dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms V Katotas with Ms C Willshire	Redlich’s Work Injury Lawyers
For the Defendant	Mr B McKenzie	Russel Kennedy

HIS HONOUR: (ex tempore)

1This is a serious injury application brought pursuant to s335 of the Workplace Injury Rehabilitation and Compensation Act2013. Specifically, the plaintiff claims to have suffered a serious injury by reason of an injury to the spine, in particular the lumbar spine. Despite at an earlier stage having relied upon pain and suffering and pecuniary loss consequences, the matter ultimately proceeded for pain and suffering consequences only.

2The plaintiff swore three affidavits in support of his serious injury application, the most recent of those being sworn this morning. In addition, he tendered a court book which contained medical reports and other relevant documents. Similarly, the defendant tendered a court book containing medical reports, clinical records and other relevant documents. In addition, the defendant tendered three separate tranches of video surveillance obtained on various dates from 7 June 2023 through until 13 January this year.

3The plaintiff is a married man. He was born in 1983. He was born overseas and migrated to Australia. In Australia he has a history of manual type work, predominantly, so it would seem, through labour hire type arrangements where he has performed mostly manual work in warehouses and the like, picking and packing orders, driving forklifts and similar employment.

4Apparently because of his visa status he has had some restriction on the sort of work he can do and has had to confine himself to casual labour hire type employment. In that context he had been working for a labour hire company at a Woolworths distribution centre, having commenced there in approximately October 2019, when he claims that on 27 December 2019 he suffered an injury to his back when performing some form of lifting activities.

5For this proceeding, the defendant takes issue as to whether in fact the plaintiff suffered injury in the course of his employment with the relevant employer. Next, it says that even if the plaintiff did suffer some form of injury, it was short-lived and has, for want of a better word, since run its course. Next the defendant says that even if the court concluded that the plaintiff does have an ongoing compensable injury, the consequences of that are not serious in the sense of the well-known test of 'very considerable' when it comes to the assessment of impairment consequences for pain and suffering purposes.

6Woven into the submissions of the defendant was front and centre the credit of the plaintiff, a topic I shall return to in a moment. In response, leading counsel for the plaintiff contended that the court must consider the whole of the evidence. Whilst I was not taken to cases such as Cakir v Arnott’s Biscuits Pty Ltd,[1] I am well aware that even if someone's credit has been destroyed, the court must still consider the whole of the evidence and in particular, the objective evidence.

[1] [2007] VSCA 104.

7In that context his counsel appropriately contended that there was objective radiology that demonstrated changes to the lumbar spine that, it was said, supported the contention that the plaintiff had suffered compensable injury and that he still had ongoing consequences from that compensable injury, as demonstrated by the objective evidence, such as his ongoing need for prescription medication, a past epidural injection, a referral to a neurosurgeon and more recently, for pain management.

8In other words, it was put that even if the court concluded that he was not a witness of truth, there was still a way home for him in this proceeding because of the objective evidence.

9Lingering with credit for a moment, the attack on the plaintiff was built largely around two credit planks. The first was the fact that he has not proven to be a very reliable historian. In his affidavit material and to the doctors, he has played down the extent of his work since suffering injury in December 2019. To many of the doctors, he has denied working at all since then; to others he has given something of a history of ongoing intermittent casual work, but in my assessment, no medical practitioner has a complete or accurate picture of what has happened to him since 23  December 2019.

10True it is that the claim was not pursued for pecuniary loss but equally in consideration of the true level of impairment consequences, the plaintiff's true level of capacity after injury for work is a relevant consideration.

11The second credit attack was built around video surveillance obtained of the plaintiff at various times: on 7, 14 and 24 June 2023, 2, 3 and 2, 3 and 4 October 2023 and perhaps more relevantly, 31 December 2023, and then 13 January 2025. In accordance with what was said by Ashley JA in Church v Echuca Regional Health,[2] I must consider the video surveillance, not only for what is shown in it but also in context, in particular as to whether it has been provided to any doctors for comment, the length of it and the like.

[2] [2008] VSCA 153.

12Pausing to deal with the video surveillance, on one view it could be said to be unremarkable. It showed the plaintiff to go about ordinary daily activity, purchasing food early in morning before attending for work, collecting his children from school, shopping for clothing and shopping for groceries. What is remarkable about that video is that it is inconsistent with the significant restrictions that he has deposed to in his affidavits.

13For example, in his most recent affidavit he attempted to paint a picture of effectively only going shopping with his wife and really to assist her. I quote from paragraph 29 of the affidavit sworn today where he said:

'I also help with the supermarket work and I will push the trolley. I go to the supermarket with the children to help my wife. The children enjoy going too. I will be tired and in pain when I get home from the supermarket though as it places pressure on my back.'

14The video surveillance played in court demonstrated the plaintiff to do a range of day to day activity without his wife. Frequently, he was with his children. I will never criticise a parent for being active in their children's life, but I will criticise someone for overstating restrictions in an affidavit and that is apparent from the video.

15The video surveillance showed him to bend, squat, lift items, drive and on one occasion, carry his young daughter without any obvious restriction. Indeed, his evidence about carrying his daughter as depicted in the video on 31 December 2023 can only be described as dishonest. The plaintiff attempted to say that the video had somehow been doctored and that he never carried his daughter. I note in re-examination that issue was not pressed. To make it clear, I am not critical of his counsel about that.

16There was always the option for the plaintiff to call for the maker of the video to attend court to be cross-examined about the accuracy of it. Unequivocally, I accept that the video surveillance showed that on 31 December 2023 he was able to carry his youngest child and spend time with his other children. That fact in isolation might not destroy his case, but it cannot be ignored that in general, he has proven to be unreliable and at least in respect to his evidence about carrying his daughter, to be dishonest.

17As has been said many times, for example, in cases such as Johns v Oaktech Pty Ltd,[3] in assessing the seriousness of an injury, the credit of the plaintiff is often of critical importance. Further, as has been said, for example for recently in Popal v Transport Accident Commission,[4] the opinions of medical practitioners are often only as good as the history provided to them.

[3] [2020] VSCA 10.

[4] [2023] VSCA 222.

18Further, as was highlighted by the Court of Appeal in Popal, in an appropriate case where credit is in dispute, the court may also take into account the absence of lay evidence that might otherwise be available.

19In this proceeding, the plaintiff confirmed that his wife was available and I note that there is no affidavit from her and therefore, no corroboration of his subjective complaints of pain.

20Pausing at this point, it is tempting to say that the plaintiff's credit has been so badly impugned that it is unnecessary to proceed any further. That in fact is a conclusion that I have drawn but nevertheless, in fairness to the plaintiff and his counsel and lawyers, I will turn briefly to consider some of the other evidence.

21Dealing with the medical evidence, I do not propose to go trawling through the numerous medicolegal reports. That can be a task for someone else, but trawling through those reports demonstrates that no doctor has a reliable history in respect to the onset of symptoms in the plaintiff's back and more particularly, his work history since he says he was injured in December 2019.

22I will, however, say a few words about the opinion from Mr Chris Xenos, the treating neurosurgeon, who has seen the plaintiff on several occasions. He provided a report dated 1 October 2024,[5] to the plaintiff's solicitors, which summarises some other items of correspondence from him in the court book.

[5]        Plaintiff Court Book (“PCB”) 119.

23Mr Xenos set out the fact that he initially saw the plaintiff on 27 February 2024. He sets out his background history and the plaintiff's complaints of pain at that time.

24He said the plaintiff told him that his back pain would improve with mobility and walking, but then later on in the day, his legs would start being painful. He had a history of pain down the lateral aspect of the thighs, some paraesthesia around the knees. He mentioned some urinary urgency but no true incontinence. Curiously, he also mentioned a separate problem about the right shoulder, although not much turns on that.

25Mr Xenos noted what might be described non-organic signs, such as moaning with pain with just simple movement during examination and the plaintiff, in his words, barely able to bend down and touch his knees because of pain in the back. That seems to be completely at odds with the video surveillance. In any event, Mr Xenos then set out the history of treatment, including an L4/5 epidural injection.

26He noted repeat radiology performed in September last year when an MRI was apparently reported as showing a disc bulge at L4/5 similar in size to a previous MRI in 2022, although in Mr Xenos' words 'possibly the annular disruption was more prominent at that MRI examination.' The other discs were said to be within normal limits. There was no severe stenosis.

27Mr Xenos went on to say that the L4/5 degenerate disc, even with a more prominent annular tear, was at the mild end of the spectrum and he was not convinced of any significant stenosis or nerve compression, particularly on the right-hand side where the right leg pain was said to be worse. He said the plaintiff's condition otherwise remained unchanged.

28Mr Xenos then said, I think appropriately and tellingly, about chronicity and severity of the back pain, (and by that I add the words, subjective complaints of back pain), that:

'The bilateral leg pain did not correlate well with the rather modest radiological findings as detailed in the body of the report, and as such, taking the radiology into account and the significant back pain, it was deemed not appropriate for any surgical intervention to be considered.'

29Mr Xenos then went on to say:

'The prognosis was guarded and it was ominous for him that it is over four years since the plaintiff last worked. Therapies and the like had not given any significant improvement.'

30He said on his assessment, it was obvious to him that there was already an established chronic pain syndrome in place.

31Pausing, the totality of Mr Xenos' report suggests that when he is talking about a chronic pain syndrome, he is talking about a non-organic condition which is a segue to the fact that the defendant also raised as an issue the requirement for the plaintiff to disentangle the non-organic from the organic. In any event, returning to Mr Xenos, he suggested multidisciplinary out-patient rehabilitation and pain management.

32He said that:

'Even though the patient had not had a trauma there is a possibility that repetitive lifting previously with him working in a warehouse may have contributed to the development of his lumbar spondylosis, in particular, the L4/5 disc degeneration, and as such may be a significant contributing factor to the sustained spinal injury, but I balance that against the fact that his overall clinical situation seemed to be much more severe and correlates poorly with his very mild radiological findings as detailed in the body of my report.'

33It is apparent that Mr Xenos thought the radiology was relatively unremarkable and did not of itself explain the plaintiff's subjective complaints of significant pain.

34More recently the plaintiff has been referred to Dr Daniel Lee, a consultant in rehabilitation and pain medicine. In a report dated 1 November 2024,[6] Dr Lee said because of the widespread nature of the pain, he thought there was a strong chance that any further injections would exacerbate the pain and were therefore impractical. He suggested a low dose trial of Amitriptyline. He thought if that could reduce the pain or make the area more focused, then there might be the possibility of medial branch blocks, but that would be unlikely at the current point in time.

[6]        PCB 122.

35He was going to follow the plaintiff up and said that he thought they would be heading towards a pain management approach. I understand that very recently the plaintiff has been referred for pain management approach. Clearly the outcome from that is not known but there is a prospect that the plaintiff's ability to manage whatever pain he has might be improved by that program, so there is perhaps an issue as to whether the plaintiff's condition is permanent, although not much turns on that.

36Next, the plaintiff more recently had a medicolegal assessment from Dr Clayton Thomas who is also a consultant in rehabilitation and pain medicine, and in fact practises in the in the same clinic as Dr Lee. Dr Thomas has produced a report which has no real history at all of the plaintiff's work since 27 December 2019.[7] In fact, on one view Dr Thomas' report is perhaps remarkable for what is not in it as opposed to what is in it.

[7]        PCB 124

37In any event, he said the dominant problem was symptomatic spondylosis at L4/5 and chronic lower back pain, although he described the injury as an organic one. However, he also said it was reasonable to undergo a pain management program. He thought that any work would need to be back-friendly, to avoid lifting, twisting and the like. He does not make any specific comments about restrictions for day to day activity.

38Turning very briefly to the defendant's most recent reports, Mr Michael Dooley is a consultant orthopaedic surgeon he has provided a report dated 15 January 2025.[8] He has some history of the plaintiff's work since 27 December 2019 but again, an incomplete history. Mr Dooley, perhaps like Mr Xenos, does not seem to place much weight on the radiological findings. In fact, he describes in his report how some of those findings could relate to naturally occurring degenerative disc change.

[8]        Defendant’s Court Book (“DCB”) 141

39Mr Dooley said, from an orthopaedic point of view only, he thought the plaintiff had a physical capacity to carry out a wide range of light physical and clerical type work. He recommended a graduated return to work but said from an orthopaedic point of view, the plaintiff could work full-time. He said he would expect the plaintiff to note some ongoing intermittent low back pain, he did not expect his condition to deteriorate over or above the natural evolution of the underlying degenerative change and surgery was not required.

40I should say that earlier in that report he had said that the radiology was consistent with degeneration at L4/5 with some bulging and annular fissuring and that accepting the plaintiff had suffered a soft tissue injury to his lumbar spine in December 2019, he thought the constancy and intensity of his ongoing pain and his described disability are greater than one would expect to see for his organic condition.[9] He said he thought the plaintiff had suffered a psychological reaction to his situation and that dominated his ongoing presentation.

[9]        DCB 143.

41Having seen the plaintiff in the witness box and in the context of the video surveillance and having considered the opinion of the treating neurosurgeon, I think there is force in the opinion expressed by Mr Dooley and I accept it.

42Turning next to Dr Mary Wyatt, an occupational physician who has had the benefit of examining the plaintiff in the latter part of 2023 and then more recently, in February of 2025. In her most recent report,[10] she too, like Mr Dooley and perhaps Mr Xenos, could not find a correlation between the radiology and the reported complaints of pain. She recorded, 'Pain with light axial loading and simulated rotation',[11] which I understand to be non-organic signs. She noted:

'Movement was generally demonstrated to be limited to be limited to about a third of normal with complaints of pain with movement.'

[10]        DCB 149.

[11]        DCB 151

43And again, I note that is inconsistent with the video surveillance. Dr Wyatt went on to say that having considered the clinical records, there was a reference to pain coming on gradually doing the warehouse work at Woolworths, and a subsequent history of a specific episode of lifting increasing the back pain. She noted that the plaintiff had become more deconditioned and she could not find any clinical signs of nerve root compression and in her opinion said, 'Findings were largely functional in nature.' Dr Wyatt said:

'I have found Mr Ummer a challenging man to assess. His advised limitations are disproportionate to the nature of his physical problem. That he was previously working with no clear change in his condition indicates he cannot work and is very limited in terms of day to day activities.'

44She went on to say that the diagnosis of a pain disorder may fit the plaintiff's presentation, but she could not explain his presentation on the basis of an organic physical back condition. She went on to say that the diagnosis did not support a conclusion that employment remained an ongoing material contributing factor and she said a pain disorder may explain his situation. She also said that the idea of a multidisciplinary pain management program is a sensible option.

45I do not consider it necessary to dwell on any of the other medical reports or indeed, the evidence. The objective evidence is of some radiological findings. The totality of the medical evidence that I accept is that the radiological findings do not explain the plaintiff's current presentation. Non-organic factors are at play, which makes it a difficult task to assess the plaintiff's true level of impairment.

46Coming back to the first issue, namely whether the plaintiff has suffered a compensable injury, I accept that he developed back pain whilst lifting items at work on 27 December 2019. I consider Mr Dooley's description of a soft tissue injury to be reliable, although perhaps, in the words of some of the other doctors, there also to be some aggravation of the radiologically demonstrated degenerative change.

47Whether or not that injury persists is something of a moot point. I have noted Dr Wyatt's careful opinion that it does not. Other doctors, such as Dr Thomas, support the proposition that there is an ongoing physical injury. At the end of the day, not much turns on that. That is because it is the plaintiff who has the evidentiary onus to establish sufficient impairment and impairment consequences to meet the test of 'very considerable'.

48Put bluntly, he has been an unreliable historian when presenting to medical practitioners and he has proven to be unreliable when presenting to the court. His unreliability, combined with the evidence of non-organic factors, makes it an impossible task to discern what, if any, genuine impairment consequences he has from any persisting physical back injury. The plaintiff, as Mr Xenos has suggested, and as Mr Dooley said he would expect, may have some mild intermittent lumbar spine pain related to the work injury, but I do not accept that he has the chronic level of pain that he has attempted to portray.

49True it is that he is now prescribed painkilling medication but the requirement for that must be seen in the context of his reliability and whether the doctor, properly informed about the true picture, would maintain that medication is needed is perhaps a rhetorical question. The plaintiff may have, as I say, some ongoing intermittent low back pain, perhaps it might be capable of being described as mild, marked or even moderate, perhaps it is not trivial, but in my assessment, it is certainly not 'very considerable'.

50Therefore, for the reasons expressed, the plaintiff has failed to discharge his evidentiary onus to establish a serious injury and his application for leave to commence a common law proceeding is refused.