Yaqubi v Victorian WorkCover Authority
[2021] VCC 1724
•19 November 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-19-05251
| YOUSEF YAQUBI | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE LAURITSEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 August 2021 | |
DATE OF JUDGMENT: | 19 November 2021 | |
CASE MAY BE CITED AS: | Yaqubi v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1724 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – permanent serious impairment or loss of a body function – function associated with lumbar spine – Medical Panel provided an opinion for the purpose of assessing whether the plaintiff has a serious injury – pain and suffering only
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:Sabo v George Weston Foods [2009] VSCA 242; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; TTB SMS Pty Ltd v Reading [2020] VSCA 203; Said v Smart Group Management Pty Ltd [2021] VCC 746; Durrant v 101 Warehousing Pty Ltd [2021] VCC 834; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181
Judgment: Leave granted to the plaintiff to issue proceedings to recover pain and suffering damages
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Storey | Zaparas Lawyers |
| For the Defendant | Ms F Spencer | IDP Lawyers |
HIS HONOUR:
Introduction
1Yousef Yaqubi seeks leave to start a proceeding to recover damages for injuries allegedly suffered by him arising out of or in the course of his employment with Kitchen Galerie Pty Ltd. He alleges suffering a “serious injury” and relies upon paragraph (a) of the definition of “serious injury” in the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”). He no longer relies on paragraph (c) of the definition. He alleges an impairment to the body function associated with the spine, or, more particularly, the lumbar spine. As to the consequences of the injury, he relies on those relating to pain and suffering only.
2As is usual in these applications, Mr Yaqubi provided two affidavits and gave oral evidence. The parties then tendered a plethora of medical and other reports. However, the application had one important difference. The Medical Panel gave its opinion on various medical questions and the parties agree that those opinions bind me in this application.
Circumstances
3Mr Yaqubi is now forty-eight. He was born in Afghanistan. Although having little formal education, he is intelligent and has learnt to read and write in Persian. For the purposes of this application, he needed the help of an interpreter, for his English is limited.
4Mr Yaqubi was married but is now divorced. There are two children of the marriage, aged thirteen and seventeen. The children once resided with him but are now with their mother: he could not afford to care for them on Centrelink benefits.
5In 1995, Mr Yaqubi went to Iran to live. He worked there in an abattoir and then in the construction industry for fifteen years.
6On 18 March 2011, he arrived in Australia as a refugee. After spending time in detention, in August 2011, he obtained employment at ZD Construction as an assistant handyman. Until ceasing work in 2018, he was continuously employed.
7In August 2016, Mr Yaqubi started working for Kitchen Galerie Pty Ltd in its Dandenong South factory. He worked as kitchen benchtop maker and installer. It was full-time employment with some overtime.
First incident
8On about 24 April 2017, Mr Yaqubi was installing a stone bench. He unloaded the stone from a utility and carried it into the house. While doing so, he felt a pain in his lower back. He put the stone down but could not move without increasing his pain. He stopped working and waited while his fellow worker finished his tasks. After the job was finished, Mr Yaqubi went to the Dandenong Hospital seeking treatment.
9Mr Yaqubi was off work for a week. He returned, ostensibly on light duties. Since there were none, he worked his normal duties. He underwent physiotherapy for two weeks.
10On 4 May 2017, he went to the emergency section of the Monash Hospital. CT scans of his lower back were taken that day. On 18 May 2017, MRI scans were also taken. On 23 May 2017, he re-attended the hospital.
Second incident
11Mr Yaqubi gave evidence of a second incident. I will record its details although its significance is doubtful in view of the Medical Panel’s opinion.
12On 17 November 2017, Mr Yaqubi was lifting at work and found he could not straighten his back. He was taken by ambulance to hospital. He ceased work that day and did not return.
Aftermath
13Mr Yaqubi attended a pain management programme between December 2017 and May 2018. It was supervised by Dr Nathan Johns, a rehabilitation physician. He did not finish the programme, attending thirteen out of twenty-four physiotherapy sessions and only one of the twelve psychology sessions. From Dr Johns’ perspective:[1]
“… he required extensive pain education, he needed improved compliance with completing an independent home-based program and exercises, ongoing psychology, physical education regarding gait and pelvic movements, and education regarding flare-ups and pacing.”
[1] Report dated 19 July 2018 at p 2
14Mr Yaqubi had been a patient of a general practitioner, Danushi Ganegoda, since November 2015. He sought treatment from Dr Ganegoda following the first incident. Mr Yaqubi could not say when he stopped seeing Dr Ganegoda except it was a “long time ago”. Judging from Dr Ganegoda’s report of January 2020, it was after January but still sometime in early 2020. Again, sometime in early 2020 was when Mr Yaqubi ceased taking Panadeine Forte and Endone.
15He attended a physiotherapist on a few occasions and told the Medical Panel he ceased “some time ago”. In cross-examination, he explained:[2]
Q: “And you haven’t sought to have any further physiotherapy?---
A:No, because I’m going in the past. Never had any benefits, so why would I do it again? It was a very short term benefit to it.”
[2] Transcript at p 44
Medical Panel Opinion
16On 14 July 2020 and 10 May 2021, a Judge of this Court referred medical questions to the Medical Panel for its opinion. On 27 May 2021, the Panel gave its opinion.[3] Since Mr Yaqubi does not rely on paragraph (c) of the definition of “serious injury”, I will focus on the Panel’s opinion regarding the lumbar spine.
[3] Opinion dated 27 May 2021 and reasons dated 25 November 2020
17The first question asked of the Medical Panel was:
“What is the nature of the medical condition of the plaintiff’s:
a) lumbar spine …
b) … .”
to which the Medical Panel answered:[4]
“a) Chronic musculoskeletal pain in the lower back and left leg, with no current evidence of radiculopathy, following a soft tissue injury of the lower back on the background of minimal age-consistent, constitutional lumbar spondylosis.”
[4]Opinion dated 27 May 2021 at page 1
18The Medical Panel gave reasons for its opinion. In those reasons, it listed Mr Yaqubi’s complaints – pain extending from the low thoracic region to the upper spine and across into both buttocks; a feeling of numbness down the left leg, extending from the anterior thigh to the left ankle and left foot but not including his toes; intermittent pins and needles in the left leg; no incontinence, and the pain is present all day. It keeps him awake at night and increases with physical activity.
19Its examination revealed – a normal gait, the ability to stand and walk on his toes and heels; maintenance of lumbar lordosis without kyphosis or scoliosis; testing through axial compression, passive rotation, very light pinching and palpation produced the experience of pain to varying degrees; no spasm or guarding in the paravertebral muscles, and markedly reduced active range of motion of the lumbar spine symmetrically and in all directions.
20Through neurological examination, including sensation testing, the Medical Panel found no evidence of radiculopathy.
21Importantly, in its reasons, the Medical Panel excluded as a source of his pain the recurrence, aggravation, acceleration, exacerbation or deterioration of his lumbar spondylosis.
22The Medical Panel then rejected the proposition Mr Yaqubi’s employment between about August 2016 and November 2017 was a significant contributing factor to a recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing medical condition of his lumbar spine.
23Next, it opined that the chronic musculoskeletal pain following a soft tissue injury to the lower back is materially contributed to by the injury suffered on 24 April 2017 but not his employment between about August and November 2017.
24The Medical Panel considered:[5]
“... that people with chronic musculoskeletal pain may develop optimised pain management strategies and techniques for functional improvement through participation in a multidisciplinary rehabilitation/pain management program.”
[5] At p 11
25It saw positive predictors of the success of a such a programme for Mr Yaqubi in his not taking analgesics, caring for his family, independent personal care and the ability to drive a car. Despite the possibility of improvement, the Medical Panel considered he is likely to continue to have pain in the foreseeable future.
26As to capacity for work, the Medical Panel considered Mr Yaqubi as unsuited to his pre-injury duties. It examined nine vocational options contained in the referral to it. It excluded seven of the nine and considered the work of a light packer or light process worker as suitable employment. To an extent, it was assisted by Mr Yaqubi’s willingness to “try anything”. Of those options, it said:[6]
“… does not demand heavy lifting or repetitive movement of the back, is within Mr Yaqubi’s functional capacity and would not put him at risk of exacerbation or aggravation of his physical condition, and is work for which he is currently suited and could perform on a reliable and consistent basis in a full-time capacity.”
[6] At p 18
27As to the issue of psychological injury, the Panel diagnosed an exacerbation of a pre-existing Adjustment Disorder with Depressed Mood and Anxiety. I do not know why he was suffering from an Adjustment Disorder at the time of the first incident. In any event, this extended injury did not incapacitate him for work.
Other opinions
28Notwithstanding the opinion of the Medical Panel, the parties tendered medical and other reports. None of the practitioners saw Mr Yaqubi after his examination by the various members of the Medical Panel.
Dr Danushi Ganegoda
29Dr Ganegoda has been Mr Yaqubi’s general practitioner since November 2015. Between July 2018 and January 2020, he wrote four reports. His findings and opinions remained largely consistent throughout. Oddly, he alone mentions the right leg which contrasts with the Medical Panel’s opinion.
30His reports add nothing to the Medical Panel’s opinion, which I can legitimately consider.
Dr Michael Knight
31Dr Michael Knight is an orthopaedic surgeon. He saw Mr Yaqubi on reference from his general practitioner. The material includes his letter to Dr Johns dated 30 November 2017. It adds nothing to the Medical Panel’s opinion.
Dr Nathan Johns
32Dr Nathan Johns is a rehabilitation physician. On 14 December 2017, 10 April 2018 and 17 October 2019, he treated Mr Yaqubi.
33Dr Johns considered Mr Yaqubi’s persistent pain as being due to the process of central sensitisation with significant psychosocial impairment. The diagnosis of central sensitisation cannot be accepted as well the additional effect of psychosocial impairment for they are inconsistent with the Medical Panel’s opinion. His recommendation of a multidisciplinary rehabilitation programme seems to have occurred. His optimism about a return to work as a stonemason is misplaced, given the minimal effect of the programme which Mr Yaqubi undertook and the restrictions on work stated by the Medical Panel.
Mr Mohammed Awad
34Mr Mohammed Awad is a neurosurgeon and spinal surgeon. On 3 September 2019, he examined Mr Yaqubi at the request of his solicitors. His diagnosis of the injury suffered by Mr Yaqubi as an aggravation of lumbar spondylosis is inconsistent with the opinion of the Medical Panel and I will disregard it. Apart from seeing a very mild antalgic gait and significant restrictions of movement of the lumbar spine in flexion and extension, there is nothing more to glean from this report that is not covered by the Medical Panel’s opinion.
Dr Robyn Horsley
35Dr Robyn Horsley is an occupational physician. At the request of Mr Yaqubi’s solicitors, she examined him on 18 October 2019 and 20 February 2020.[7] Apart from noting her clinical findings, including marked restrictions in the movements of the lumbar spine, there is nothing in her reports which is consistent with, and adds to, the opinion of the Medical Panel.
[7] Reports dated 18 October 2019 and 20 February 2020
Dr Michael Bloom
36Dr Michael Bloom is an occupational and environmental physician. At the request of the defendant’s solicitors, he examined Mr Yaqubi on 24 February 2020.[8]
[8] Reports dated 24 February and 19 May 2020
37Dr Bloom diagnosed a soft tissue injury to Mr Yaqubi’s low back. However, this condition has evolved into a Chronic Pain Syndrome secondary to adverse psychosocial factors. The strain injury would have resolved in weeks or months.
38His prognosis was guarded because of the adverse psychosocial factors and fear avoidant behaviour. Excluding the psychosocial factors, the prognosis was reasonably good.
39Again, the diagnosis of Dr Bloom is inconsistent with the opinion of the Medical Panel and I will disregard it. Since the prognosis is tied up with the diagnosis, I can pay it no regard.
Other reports
40The defendant tendered a 130-week vocational assessment report, a CSS report and a supplementary vocational assessment report. In light the opinion of the Medical Panel, these reports are of passing interest.
Current position
41Mr Yaqubi is a single person, living in a “share” house with a woman whom he describes as his landlord.
42In late 2020 or early 2021, he completed a pain management programme. It did not reduce the level of his pain but taught him stretching and strengthening exercises. He now feels less stiff.
43The nature and level of his pain has remained the same since 2018 when he swore his first affidavit. The restrictions remain much the same since 2018.
Pain
44Mr Yaqubi experiences constant pain in the middle of his lower back. It is made worse by prolonged sitting, walking and bending. When sitting, the pain travels from his back into his legs.
45During cross-examination, he expanded on the nature of his back pain:[9]
“I got a deep pain and heavy pain all the time and my movement, it depends if I move – so it’s a sharp pain and then it start increasing … and then … it’s struggling to go further or bend myself … .”
(sic)
[9] Transcript at p 40
46He stills experiences pain in both legs. With the left, it reaches his foot. The left leg pain is constant but its intensity varies. He described the pain as feeling like cramping.
47With the right leg, the pain stops at his buttocks. However, if he works a long day or moves more, it reaches his foot. It happens at work once or twice a week when he works longer or stands on his feet for longer. It gets better if he sits, which is something he is allowed to do at work.
48Pausing there. The Medical Panel’s opinion about his medical condition of the lumbar spine refers only to the lower back and left leg with no mention of the right leg. This is unsurprising, since the Medical Panel did not record any complaint about his right leg. Whatever the reason for the absence of complaint, the fact remains the Medical Panel did not include the right leg as part of his medical condition. I will ignore what Mr Yaqubi said about his right leg.
49The pain in his lower back is also increased by getting into and out of a car and by driving for a prolonged period. He drives himself to the factory where he works and from the factory to the customers’ homes to measure and make minor repairs.
Treatment
50Mr Yaquibi has not received treatment from Dr Ganegoda since early 2020. He did not continue physiotherapy beyond a few sessions because it did not help except in the “very short term”. He once took strong pain-relieving medicines. He stopped taking Targin and Tramadol on the advice of his doctor to avoid an addiction. It is unclear why he ceased taking Panadeine Fort and Endone.
Sleep
51The pain has reduced what was a good night’s sleep of 8 hours to about 4 hours. He sleeps with a pillow under his feet.
Daily living
52After his separation from his wife and before the August 2017 incident, Mr Yaqubi cared for his daughters and looked after their house. After the incident and before his daughters went to live with their mother, he relied on his eldest daughter to vacuum and mop and both daughters to load and unload the washing machine. Despite the pain, he changed the bed sheets and took out the rubbish bins for emptying. He still cooks but manages only simple meals. He has substituted small shopping trips for one large grocery shopping trip.
53Now, he has a small room which does not need much cleaning. Usually, he buys his meals ready made, avoiding the need to cook. Although his shopping is limited, he does it himself.
Sport
54Before the first incident, while in Western Australia, Mr Yaqubi went to a gymnasium about three times a week. After moving to Victoria, he did not resume attending a gymnasium. Although he has not attended a gymnasium since the first incident, it was not an activity he engaged in at the time of the first incident.
55While in Iran, he engaged in martial arts and soccer but not since he has been in Australia.
56After arriving in Australia, he took up kickboxing but only for a short while.
57He used to camp with friends but not anymore.
58He did some walking with a group, once in Bundoora and twice in the city. These walks took between an hour-and-a-half and two hours. He enjoyed them very much. Even though the walks were on solid surfaces, physically, he could not do them now.
Social life
59After the separation and before the incident, Mr Yaqubi started dating. He has not since, fearing his back pain will affect his sex life.
60Now, he feels very lonely. He feels ashamed of people seeing his life as it is now. He sees his friends a lot less now because he cannot sit for too long.
61Previously, he played a musical instrument with his friends. He has done so a few times in the last four years and not done so since August or November 2019 or even as late as February 2020. He has two reasons – he shares the house and “there’s not suitable for us to gather and play music”;[10] and he does not feel in the mood to play an instrument with friends.
[10] Transcript at p 44
62He used to dance because he felt lonely. He cannot now through back pain. He has gone as far as going onto the dance floor but could not dance:[11]
“Yeah, Christmas Party in … Dockland ... 17 or 18 of November and then … they asked me to come to the dance and ... I said, ‘No’, I tried but then I just come back, I can’t do that and then, I was so under pressure and then … so I never … I couldn’t dance.”
[11] Transcript at p 50
Employment
63His inability to support his daughters financially caused him to return to work. He started in mid-March 2021 for an entity called Pro Dynamic Tiling. It is casual work and he is paid as a contractor, not an employee. He now submits monthly invoices for his work. It is light work. He is engaged by a company which performs tiling. He measures, inspects the installed bench for quality and makes minor repairs. It appears he is an accurate measurer, for the benches are constructed in the factory using his measurements.
64Despite the marked contrast with his pre-injury duties from a physical perspective, this job does cause pain:[12]
“There’s a lot of activities involved that cause me pain, like driving back and forth from the factory to the site, standing around a table for a couple of hours doing the gluing and the sanding. These are all the activities that cause the pain.”
[12] Transcript at p 37
65His hours of work varies between five and ten hours a day. On average, he works 38 to 40 hours a week. Sometimes, there is overtime and usually additional work on Saturday.
66During March 2021, he invoiced Pro Dynamic Tiling a total of $8,500. For April, the figure was $9,377. In May, the amount was more than $8,000. In June, it was $7,500. The declining amounts represent what he was offered. However, he would have preferred less because of the state of his lower back. He did what he was asked to do through fear that his refusal may lead to him being “fired”.
67Mr Yaqubi enjoyed his pre-injury duties. He enjoyed the physical aspects of the work but also:[13]
“I really enjoyed [the work] because of the respect that I was receiving and acknowledgment that [I] was receiving from the customers and that I could make them happy, and they really appreciated what I was doing, and that is why I liked what I was doing.”
[13] Transcript at pp 55-56
Legal considerations
68Turning to paragraph (a) of the definition of “serious injury”, the word “serious” is explained in two further paragraphs of s325(2). First, relevantly, it is satisfied by reference to the consequences to Mr Yaqubi of any impairment or loss of a body function with respect to pain and suffering or loss of earning capacity when judged by comparison with other cases in the range of possible impairment or loss of body function. Second, an impairment or loss of a body function is not serious unless the pain and suffering consequence or the loss of earning capacity consequence is, when judged by comparison with other cases, in the range of possible impairments or losses of a body function, fairly described as being more than significant or marked, and as being at least very considerable.
69The adverb “very” qualifies the noun “considerable”. The following passage from the joint judgment in Sabo v George Weston Foods[14] is important:
“In considering whether Mr Sabo’s impairment is ‘at least very considerable’ weight must be given to the adverb ‘very’. As Callaway JA said in TAC v Dennis:
‘Many [impairments] are considerable, in the sense that they are important or substantial, without being very considerable.’”
[14] [2009] VSCA 242 at paragraph [73]
70Dodds-Streeton JA in Kelso v Tatiara Meat Co Pty Ltd said:[15]
“… The endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence.”
[15] (2007) 17 VR 592 at paragraph [199]
71An earlier paragraph in the joint judgment dealt with Mr Sabo’s return to work:[16]
“The fact that Mr Sabo is able to work full-time driving a forklift, does not preclude him from showing that the pain and suffering consequences of his impairment are serious. Such an approach would be a disincentive to workers attempting to return to work on lighter duties and would be inconsistent with s 3(b) of the Act, which provides that one of the Act’s objects is to provide ‘for the effective occupational rehabilitation of injured workers and their early return to work’. … .”
[16] At paragraph [71]
72Under the heading of “The disabling effect of pain”, Maxwell P summarised the authorities on this point in Haden Engineering Pty Ltd v McKinnon:[17]
“As to capacity for work, it is necessary to identify whether and to what extent the plaintiff is prevented by the pain from performing the duties of his/her previous employment. The fact that the plaintiff has been able to return to full-time employment does not preclude an affirmative finding of serious injury. It is simply one of the matters to be taken into account. What matters in this regard is the extent to which ‘an area of work which … [the plaintiff] enjoyed has been closed off to [him or her]’.”
[17] (2010) 31 VR 1 at paragraph [15]
73Counsel referred to TTB SMS Pty Ltd v Reading[18] for different reasons. The Court’s judgment contains an important reminder of what is involved in the comparison with other cases in the range of possible impairments or loss of body function:[19]
“… The evaluation required of the trial judge … involves a comparison of the worker’s impairment not just with other impairments of the hand, but also with other types of physical impairment that may be suffered, including impairment of the brain, the spine and large joints such as the knee and shoulder. Those other physical impairments may involve constant pain, significant medical treatment and medication. They may involve sleep deprivation, or an inability or reduced ability to socialise or work.”
[18] [2020] VSCA 203
[19] At paragraph [31]
74As to the use of the Medical Panel’s opinion, the defendant’s counsel drew my attention to two recent judgments of a Judge of this Court in Said v Smart Group Management Pty Ltd[20] and Durrant v 101 Warehousing Pty Ltd.[21]
[20] [2021] VCC 746
[21] [2021] VCC 834
Discussion
Credit
75The defendant submitted Mr Yaqubi exaggerated his symptoms and restrictions. Mr Yaqubi’s counsel correctly pointed to the consistency between his complaints to medical practitioners, to the Medical Panel and in his affidavit and oral evidence.
76The defendant submitted there were little or no concessions made by Mr Yaqubi during his cross-examination. I disagree. If anything, I thought he was too inclined to agree with questions.
77Given the stern tests plaintiffs face in these applications, a degree of exaggeration should be expected; however, I did not get that impression with Mr Yaqubi. I consider he is a truthful and reliable witness.
Injury
78Mr Yaqubi suffered the injury described by the Medical Panel as a result of the incident on 24 April 2017. Accordingly, it arose out of or in the course of his employment with Kitchen Galerie Pty Ltd.
79The Medical Panel spoke of the lower back and not the lumbar spine. Mr Yaqubi’s counsel submitted the Medical Panel used the expressions “lower back” and “lumbar spine” interchangeably. I suspect the Medical Panel used “lower back” deliberately. It made a positive diagnosis and accompanied it with exclusions. It excluded radiculopathy for a lack of evidence. It saw the evidence of degeneration as no more than that due to ageing. By using “lower back”, the Medical Panel is encompassing more than is associated with “lumbar spine”. Since this application deals with a body function, it is that associated with the lower back and not just the lumbar spine.
Serious injury
Extent of injury
80The defendant submitted the Medical Panel made no mention of damage or disruption of a permanent nature to the lumbar spine itself. In looking for bony or disc damage, and then submitting their absence lessens the importance of the injury is not necessarily correct. In each case, it depends on the nature of the impairment caused by the injury and the consequences flowing from it. Excluding radiculopathy does not automatically mean the injury, impairment and consequences are not as severe as for someone with radiculopathy.
81The pain suffered by Mr Yaqubi is organically based. That is implicit in the Medical Panel’s opinion and reasons.
Pain
82Mr Yaqubi suffers pain in his lower back, buttocks and left leg. He experiences numbness in his left leg. The right leg must be excluded from consideration. These symptoms are chronic with their source being the musculo-skeletal structures of the lower back. Mr Yaqubi told the Medical Panel of severe pain on light palpation from the upper lumbar region to the mid-sacrum and the left sacroiliac joint.
83His pain is constant. It keeps him awake at night and increases with physical activity including standing for long periods.
84Mr Yaqubi does not suffer from any cognitive deficit due to his pain or the past taking of medication.
Treatment
85Mr Yaqubi does not now seek medical assistance. He is not receiving physiotherapy. He did undertake a pain management programme in late 2020. This was his second pain management programme. It produced little benefit.
86He does not now take any analgesic medicines. He stopped Voltaren because it caused stomach problems and, although Targin and Tramadol reduced his pain, stopped on the advice of his general practitioner to avoid addiction.
87The defendant’s counsel submitted fear of addiction and stomach problems does not explain why he does not use a simple medicine like Panadol. If a part of a person’s body is painful and the person wants to cease using strong medicines, then one might expect their replacement by less strong, non-dangerous, medicines. That is an expectation. Whether it is so in a particular case depends on the person. His counsel invoked “stoicism”, submitting Mr Yaqubi is a stoic person. Whether I would use the word “stoic” to describe him, he is a very determined person. He stayed at work after injury and after four admissions to hospital. He persisted at work until forced to stop. He lost the care of his daughters through poverty. He resumed working after an absence of three-and-a-half years despite the pain and, in part, to provide for his daughters. He is a person who would avoid medicines notwithstanding the pain. In this case, the failure to take any pain-relieving medicines has no bearing on the level of pain he experiences.
Daily living activities
88Mr Yaqubi manages his activities of daily living. No longer does he care for his two daughters. He lives alone, occupying a room. He can load and unload a dishwasher, vacuum and change his bedsheets but with difficulty. He has difficulty in putting on his shoes and socks.
Recreational activities
89Although raised in his affidavits, his sporting activities in martial arts, soccer, kickboxing and attendance at a gymnasium ceased well before the first accident.
90His bushwalking was very limited before the accident. On closer examination, it occurred two or three times with one instance involving solid pathways in Bundoora Park for two or three hours.
Daughters
91An indirect consequence of Mr Yaqubi’s injuries is that his daughters no longer live with him. His unemployment meant he could no longer care for them properly. They now live with their mother. Since they have not returned to his care after gaining employment, only part of the consequence can be ascribed to his injuries.
Social life
92There is a tendency in these applications to paint the consequences in absolute terms. Before the critical event the plaintiff did X and Y, afterwards, he or she does not. The nature of the test invites this. Mr Yaqubi still sees his friends. He still plays music with them.
Sleeping
93Mr Yaqubi sleeps poorly. As a gauge of the seriousness of this consequence, the defendant pointed out he had not sought medicine to help him sleep or sleep better. Since he was not examined on the point, the argument goes nowhere, for it raises questions like – does he know of such medicines, and, if he does, would he use them? He does have an aversion to pain-relieving medicines?
Capacity for work
94The Panel considered Mr Yaqubi suited for the work of a light packer and light process worker. He told the Panel of his keenness to obtain employment and did so in March 2021. He is unfit for his pre-injury duties. He is now working a considerable number of hours each week. In effect, it is full-time hours, together with overtime. He earns more in this employment than he did in his pre-injury duties. This work does not involve heavy lifting or the repetitive bending of his back.
95Where the loss of earning capacity consequence is not relied on by a plaintiff, an important aspect of a return to work is where a plaintiff is incapable of returning to his or her pre-injury employment. This is something now denied.
96The defendant’s counsel pointed to Mr Yaqubi’s comments to Dr Bloom about his pre-injury duties:[22]
“We discussed his level of job satisfaction. He said that all of the construction of the bench tops was undertaken out in the yard in all weather conditions. He said that there was very little equipment provided, and no lifting equipment. He said that there was both wet and dry cutting of the bench tops. He said that whilst working there he was not made aware of the dangers of inhalation of particulate silica. He also said that he was always pushed to work faster than he felt comfortable or reasonable.”
[22] Report dated 24 February 2020 at p 2
97Those comments were more directed at his employer’s work practices than the nature of the work itself. I do not consider Mr Yaqubi was critical of the physical side of the work on its own. After all, his working life, in Iran and Australia, has been spent in physical labour. This much appears in his work history set out in the report of Rehab Management.[23]
[23] Report dated 18 October 2018 at pp 1-2
98The fact of a return to work has another aspect. If successful, on the issue of pain and suffering consequences, it will tend, in the absence of other relevant evidence, against the conclusion that the pain and suffering consequences of the compensable injury are serious. It is, as the Court said, a part of the overall body of evidence.[24]
[24] Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181 at paragraph [47]
99Mr Yaqubi’s injury has left him unsuited to his pre-injury employment and, as far as I can tell, all other employments he has worked before the accident. He is fortunate to have converted his acquired skills into his present position. Although not qualifying to be considered part of the loss of earning capacity consequence, it is still an important loss.
Permanent
100In my words, the ultimate prognosis of the Medical Panel was poor. It had reason to believe a pain management programme might bring positive results. Since it did not, Mr Yaqubi was likely to continue to have pain in the foreseeable future. The impairment and its consequences must be considered permanent.
Conclusion
101I am satisfied Mr Yaqubi has suffered a “serious injury” in terms of pain and suffering consequences. I will grant him leave to commence a proceeding to recover damages.
102I will hear the parties on the form of my orders and the question of costs.
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