IN THE COUNTY COURT OF VICTORIA
AT Melbourne
COMMON LAW DIVISION
SERIOUS INJURY LIST	Revised
Not Restricted
Suitable for Publication	

Case No. CI-24-01825

SHAHRAM DADASH	Plaintiff	
		
v		
		
VICTORIAN WORKCOVER AUTHORITY	Defendant	

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JUDGE:	HIS HONOUR JUDGE PILLAY	
WHERE HELD:	Melbourne	
DATE OF HEARING:	16 October 2024	
DATE OF JUDGMENT:	31 October 2024 	
CASE MAY BE CITED AS:	Dadash v Victorian WorkCover Authority	
MEDIUM NEUTRAL CITATION:	[2024] VCC 1700		

REASONS FOR JUDGMENT
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Subject:	ACCIDENT COMPENSATION
Catchwords: 	Serious injury application – workplace injury – left ankle injury – injury to left Achilles – organic injury – whether impairment consequences “more than significant or marked” – plaintiff credibility and reliability – psychiatric injury 
Legislation Cited:	Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) 
Cases Cited:	Juma v Kone Elevators Pty Ltd [2024] VSCA 217; Sepe v Club Italia Sporting Club Inc (Ruling) [2023] VSC 191
Judgment:	Application dismissed

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APPEARANCES:
	Counsel	Solicitors	
Plaintiff	Mr G Worth	Arnold Thomas Becker	
			
Defendant	Ms S Manova	TG Legal	

HIS HONOUR:

1	Mr Dadash sustained injury to his left ankle on 20 February 2018 during the course of his work as a security guard.  He claims this incident has resulted in a “serious injury” within the meaning of that term in s335 of the Workplace Injury Rehabilitation and Compensation Act.  He makes a claim for pain and suffering only under paragraphs (a) and (c) of the definition.
2	There are two central issues in the case.  First, whether there is currently an organic injury in the left ankle?  Second, whether the impairment consequences of that injury rise to the level necessary to be considered a serious injury?  For the reasons which follow I find that Mr Dadash has an ongoing organic injury to his left ankle. However, I find that it is not possible to determine accurately what impairment consequences he suffers from as a result of that injury.  So much so, that no determination can be made as to whether or not he has sustained a “serious injury” under paragraph (a) and/or (c).  I come to that decision due to the substantial inconsistency between the contemporaneous medical material and Mr Dadash’s evidence on affidavit and further exposed in cross-examination.
Relevant chronology
3	Mr Dadash was born in February 1978 in Afghanistan.  His family left there when he was young and he completed his schooling primarily in Iran. He he completed two to three years of software engineering at University.  He came to Australia in about 1999 aged 22.  In 2008 he began working with G4S, a security company in Melbourne. In that role he was placed as a security guard at various court locations such as the County Court and the Supreme Court.  He worked in these positions for about 10 years until the injury occurred on 20 February 2018.  
4	At that time he was at the Supreme Court.  He was working on gate duty in the laneway at the rear of the Supreme Court and between the Court of Appeal building.  The gates at that location are large and heavy. They move on a track embedded in the pavement.  As he was attempting to pull a gate shut he caught his left ankle underneath it.  This caused a laceration and bruise about the left Achilles tendon and heel of the left foot.  His evidence is that he felt pain shortly thereafter and was told to rest by his supervisor.  He saw his treating doctor on 20 February 2018, Dr Roque.  He had bandages applied on this day and took 2 days off work. He returned to work shortly after and continued to have pain. He returned to his doctor again on 22 February with ongoing symptoms.  After consultation with his doctor on 28 February 2018 he was sent for both x-ray and CT scan.  No abnormality was detected.  He returned to see his treating doctor regularly during March. No particular medication or treatment course was offered to him and he remained off work.  On 27 March 2018 he presented at hospital having a panic attack.  
5	The plaintiff’s WorkCover claim was accepted in early May. He continued to complain to his treating doctor of left ankle pain and was referred to an orthopaedic specialist, Mr Curry in May 2018.  He saw him and considered that there had been some considerable improvement and ordered an ultrasound and MRI.  The ultrasound recorded a mild thickening on the left side of the Achilles tendon.  The MRI shortly afterward reported no abnormality but with a possible contusion of the soft tissues. Mr Curry’s view overall was that there was inflammation with no significant tendinopathy and the situation was likely to improve over the next three months. 
6	There was a further presentation to the hospital Emergency Department with an anxiety condition in early June 2018.  Review with Mr Curry in August 2018 showed significant improvement and he maintained his optimism that the condition would improve so that the plaintiff could return to full duties work within three to six months.  At this stage the plaintiff was off work but shortly thereafter he returned to work at the Melbourne Youth Justice Centre in Parkville.  This was part-time work 7.5 hours per day 4 days per week on light duties.
7	In October 2018, he was in dispute with the WorkCover insurer over weekly payments and medical and like expenses. The dispute was referred to the Medical Panel.  The Medical Panel opined that he suffered from a “largely resolved traumatic soft tissue injury”.  I assume that because there was an unresolved component of his injury, his weekly payments were reinstated as were his medical and like expenses. I pause to note that while the plaintiff’s weekly payments of compensation have now ceased it is admitted that the plaintiff continues to be in receipt of medical and like expenses from the insurer.
8	The plaintiff continued on in this way until further review with Mr Curry in February 2019.  He noted significant improvement with an ability to stand and walk for four to five hours.  He considered there was minimal swelling on examination about the left ankle and thought that Mr Dadash could return to work on full duties at full-time hours.  He considered that if the condition did not improve then he may perhaps be a candidate for surgery of the left Achilles.  The plaintiff ceased work in March 2019. I note that the plaintiff ceased work at this time due to no work duties being available from his employer and he was therefore terminated.
9	On review with Mr Curry in June 2019, there continued to be some problems so an x-ray and ultrasound were arranged. He began physiotherapy shortly afterwards in July 2019.  The radiology ordered by Mr Curry showed minor thickening on the left Achilles in comparison to the right with “mild tendinosis” and no tear.  Mr Curry’s opinion of the scans was that they were essentially normal with some mild thickening at the insertion.  He did not consider that surgery was warranted.
10	It is to be noted during this time that the plaintiff was having a good response to physiotherapy. Part of this was related to the fact that the plaintiff was sent for a pain management course with Advance Healthcare and began that in September 2019.  At this point it was noted that the plaintiff was walking daily for 30 to 60 minutes, had no swelling about the site, and had only intermittent right lower Achilles pain.  His progress at this stage was so good that the physiotherapist treatment ceased between November 2019 to March 2021.
11	At review with Advance Healthcare in June 2020, it was noted that he had improved both physically and psychiatrically and had a reduced frequency of flare ups. He was discharged from the program to do a home based program.  At further review after discharge on 30 November 2020, he was noted to be “very much better.”  That continued to be the case until about March 2021 when he returned for physiotherapy treatment. His physiotherapy continued until about February 2022 on a monthly basis when WorkCover ceased payment of his medical and like expenses.  About this time he returned to work as a speed camera operator with Serco.  Then in July 2022, he returned to physiotherapy after resolving his medical and like dispute with the insurer.  Since that time he has been doing physiotherapy on a monthly basis, mainly involving massage about the left ankle.  To conclude his treating history it can be recorded that he last saw his treating doctor Dr Soliman in July 2022.
12	In a report of May 2024, Mr Cauchi the physiotherapist who has been treating him for a lengthy period considered that he had a chronic Achilles tendinopathy.  
What is the injury?
13	All parties accept that on the initial date of the incident an injury was caused. That comprised of a laceration and at least a contusion resulting in swelling about the left ankle, particularly the Achilles insertion point into the heel.  The parties then divide as to whether the injury remains extant as at the date of the trial.  For the following reasons I consider that the injury does remain extant.
14	First, the x-ray and ultrasound findings of 26 July 2019 note the ongoing presence of mild distal Achilles tendinosis.  This is on the basis of a recorded increase in diameter of the Achilles tendon on the left side versus the right side.  This is suggestive of ongoing swelling after the initial insult. Second, this is consistent with the Medical Panel opinion of 26 October 2018 which notes a largely (but not fully) resolved traumatic soft tissue injury to the left Achilles tendon.  Third, the acceptance by admission that the plaintiff is receiving ongoing medical treatment paid for by the insurer for an ongoing left ankle injury in accordance with the principles in Sepe. Fourth, the opinion of the long term physiotherapist Mr Cauchi who diagnosed left sided chronic Achilles tendinopathy.  His long term treatment of the plaintiff places him in a unique position to provide insight into the ongoing soft tissue condition.  Fifth, his treating doctors opinion that as at 2022 he continued with Achilles tendonitis.  Sixth, this is consistent with medicolegal opinion of Mr Slesenger, though I accept this is of minimal weight given he is an occupational physician primarily and saw the plaintiff on only one occasion some five years ago.  Seventh, the opinion of the medicolegal specialist, Mr Edwards, that he continues with Achilles tendinosis as at 12 September 2024.  This opinion is made on more than simply an acceptance of the plaintiff’s history but also on an examination of the ankle itself. He notes that the tenderness on direct examination of the Achilles is consistent with orthopaedic pathology.  Eighth, Mr Curry’s opinion, though somewhat dated in relation to the scan in 2018, was that there was a suggestion of inflammation but with no significant tendinopathy.  The ongoing symptomatology is consistent with the finding made by Mr Edwards of some tendinosis continuing to be present as at the date of trial.  This is consistent also with the ultrasound and x-ray of 26 July 2019 which notes the mild tendinosis.  
15	It will be apparent from the preceding that I do not accept the opinions of Dr Ghan and Mr Keith who the defendant called in aid on this point.  First, I do not accept Dr Ghan because he was opining before the second ultrasound scan of 2019 which did indicate ongoing mild tendinosis.  This was consistent with Mr Curry’s opinion and I prefer his opinion which had the benefit of the scan to Dr Ghan’s.  As for Mr Keith, I consider though he had access to the relevant radiology and all the reporting material, his opinion was somewhat isolated and against the weight of the evidence.  While he makes findings that are consistent with some other practitioners as to the non-dermatomal distribution of pain and as to the level of disability displayed as to the question of injury alone, I do not accept his opinion.
16	For all these reasons I find that the plaintiff as at the date of trial has an ongoing extant injury which can be defined as a largely resolved soft tissue injury to the left Achilles which might also be described as mild tendinosis.
What are the impairment consequences which result from the injury to the left Achilles tendon?
Pain
17	The plaintiff set out impairment consequences revolving around his pain at paragraph 60-64 of his first affidavit.  Broadly, he deposed to having pain which increased from 1/10 on a good day to 7/10 with activity. This occurred two to three days per week where he had an increase in pain.  He deposed to suffering serious flare ups in winter and about five to seven flare ups per year.  Each flare up would take between two weeks and a month to recover from if it was serious.  He deposed to taking painkillers to deal with increases in his pain.
18	This evidence came under attack.  The plaintiff accepted the medical notes showed that he had not had any medication early on in his treatment, and in fact had ceased taking Panadeine Forte after only a short period of time.  Rather, he continues on with occasional Nurofen. This does in part support the defendant’s submission that the pain was not at the levels the plaintiff deposed to; otherwise much more substantial medication is likely to have been taken. Such medication clearly had to account for other medical conditions which he had but his doctor was alive to that and didn’t prescribe anything.
19	The material from Mr Curry also seems to contradict the plaintiff’s evidence as to the severity and chronicity of the pain. The letters of Mr Curry record that there had been an improvement of 80 to 90 per cent over the course of the plaintiff's consultations with him in 2018 and 2019.  The plaintiff accepted that but said it was confined to an improvement in his pain, not functionality.  He gave evidence that this was because he had not been working.  However, as of February 2019 the plaintiff was noted by Mr Curry to have “significant improvement…He is able to stand and walk for 4-5 hours before developing pain. He then has increasing symptoms for the remainder of his working shift (emphasis added).” He specifically recorded the plaintiff as working 4 days 7.5 hours a day. The plaintiff’s evidence in cross examination was clearly incorrect as he had been working when the recording was made. However,  the plaintiff did clarify in cross examination; that he was working on light duties at the time. His comments in respect of his improvement of pain seem to be in relation to the period of April 2019 during which he was off work. On balance I consider that Mr Curry accurately recorded the plaintiff’s situation as to pain and work. I furthermore do not accept the plaintiff’s contention that Mr Curry’s recording was restricted to an improvement in his pain. Rather I find Mr Curry was recording an improvement in the plaintiff’s pain and functional status. I prefer this contemporaneous recording to the plaintiff’s evidence given the chronological gaps in the affidavit material and the general unreliability of his viva voce evidence of which this is one example.
20	This is further reinforced by his evidence as to flare ups.  He specifically deposed to having five to seven serious flare ups per year, usually in winter.  However, he was then taken to the notes of his physiotherapist, Mr Cauchi in November 2023, which recorded no flare ups at that time and recorded that he had not had any major concern or issue over the last few weeks.  This was confirmed in the later reporting of Mr Cauchi on 21 June 2024, who recorded that there were “no flare ups this year.”  This is particularly curious as Mr Cauchi was reporting in the middle of winter and this was when the plaintiff deposed to having the more serious flare ups.  It is inconceivable that a physiotherapist who is specifically treating him for the left ankle injury,  whose main feature is pain,  did not to record the instances of flare ups.  
21	The plaintiff’s evidence is made more unbelievable because in cross-examination he gave evidence that he did not tell Mr Cauchi of the flare ups.  There is no rational explanation not to tell the treating clinician of the major symptom that was affecting him when treatment is sought.  The answer was unbelievable and lends a real air of incredibility to the plaintiff’s affidavit evidence.  
22	A similar situation arises in respect of the reporting of the Advance Healthcare pain management course clinicians.  Particularly, they recorded on 30 November 2020 that he had had significant improvement.  When pressed as to whether or not he had had significant improvement, however, Mr Dadash resorted to saying that he did not know if he had told them this.  Once again, it is almost unbelievable that the treating clinicians involved in his pain management have not accurately recorded what he said as to his pain.  The fact that they record that there had been a decrease in pain from 6/10 down to 3/10 suggests it was specifically asked about. It is also completely inexplicable why he would not tell them of flare ups which would increase pain as there is no recording of it.
23	These matters found my finding that his evidence as to his pain consequences stemming from his ankle injury are inconsistent and wholly unreliable.  I do not accept his evidence on this point.  It leaves me in a position where I am unable to determine exactly what pain consequences stem from the organic left ankle injury.
Ability to walk, run and stand
24	Turning to the next claimed consequence which is the reduction in the ability to walk, run and stand.  The plaintiff deposed at paragraphs 65-66 of his affidavit as to his capacity to walk.  This was to the effect that he could only walk for about 3 kilometres, when he used to be able to walk much further before the incident and in fact up to 2021. In his second affidavit he deposed to being able to walk for 20-30 minutes.  He was then cross-examined on Mr Curry’s letters which recorded that he could walk and stand for four to five hours at a time in 2019.  He disagreed that he had made this comment to Mr Curry or that he was capable of being on his feet for 4-5 hours then or now.
25	It is completely unclear why that recording was incorrect.  Chronologically that recording was made at a time when he was working as a security guard at the juvenile justice centre, which was a mix of being on his feet and sitting.  He was quite clearly coping with that.  At around that time the Medical Panel opined that he had a largely resolved soft tissue injury.  That is consistent with the serial ultrasounds from 2018 and 2019 showing a reduction in the swelling about the left ankle.  Furthermore he had had a course of physiotherapy which was so successful that he did not need physiotherapy treatment from November 2019 to March 2021. His affidavit does not specify any particular reason for his reason to return to physiotherapy. Thus, there is no particular reason why the condition would worsen such that his walking and standing capacities as at the date of trial were as limited as he deposed to.
26	My impression of the unreliability as to the plaintiff’s evidence on walking and standing was furthered by the cross-examination by reason of a surveillance film which was shown.  That film showed the plaintiff about one month prior to trial walking a suburban route around his home for about 45 minutes. He is also observed jogging very briefly towards the end of his walk. His affidavit, however, had deposed to only being able to walk to 20 to 30 minutes for up to five days per week.  By itself this evidence was contrasted to clinical records which record him as having a walking tolerance of anywhere between 30 minutes and an hour. That was one point of inconsistency and it suggested that since the time of those recordings the plaintiff’s capacity to walk had actually decreased.  This decrease in walking capacity is not logically explained by the evidence or his affidavit material. However, the relevance of the film was really in the answers that the plaintiff gave after being shown the first five minutes of the film and the way he answered.  
27	After the first five minutes of film he was asked whether, if the film showed him walking in that manner for the next 40 minutes, he would accept he had the capacity to walk for that period of time.  The plaintiff was adamant, and eager in his explanation, to counter the suggestion.  He gave evidence that he remembered this walk because he does it regularly on almost a daily basis and it is a route which he travels regularly.  He gave evidence that on that route he would always stop at his parent’s house for a 10 to 15 minute period which allowed him to rest and recover. He thus disagreed with the suggestion of Ms Manova that the film would show him walking for about 45 minutes.  The film was then played in its entirety.  It clearly did not show him stopping for any period of time at his parent’s house.  When cross-examination resumed the plaintiff recanted his earlier evidence and said that he must have stopped at a particular place and sat on a bench for five minutes or so.  There is no particular reason to accept that latter explanation.  This is because the plaintiff had earlier made it clear as to his usual practice on his walk and it did not involve sitting on a bench.  It can be assumed then that sitting on the bench would be unusual and he would have recalled it immediately.  He did not and gave a very elaborate description of what he would do.  His answers in this regard cannot be accepted.  It was said that this demonstrated a real lack of credibility on the plaintiff’s behalf.  
28	In assessing that submission I record that the plaintiff seemed a generally cooperative witness. He attempted to answer questions in a short and direct way. However, when confronted with contradictory material he often wanted to be expansive and provide a detailed explanation. Most often that explanation came to unravel. Examples of that are set out above as to Mr Curry’s recording as to walking ability. The cumulation of his manner of giving evidence and the unravelling of explanations, particularly when it came to the capacity to walk as disclosed in the film, do not require me to find that the plaintiff had been subjectively or intentionally dishonest in order to find his evidence on this point lacks credit.  This is particularly so in circumstances where it has not been put to him that his evidence was dishonest. In that circumstance I do not accept the defendant’s submission but I do find that his evidence on these issues of his pain and limitations as to walking, standing and running are fundamentally unreliable.
29	These matters were at the heart of the plaintiff's case;  the pain that he had experienced as a result of the injury and its impact on his functional capacities such as walking, standing and running.  I have found the plaintiff to be so inconsistent and unreliable I cannot make any definitive findings as to his true impairment consequences or residual capacities. Similarly, I can make no definitive findings as to his past activities and functional capacities which relies solely on his evidence. This is reinforced because the plaintiff in cross examination admitted his previous past time of jogging had stopped long before being injured. This is different to the impression his affidavit left. It furthers my finding as to the unreliability of his evidence. These findings undercut at the root of the claimed impairment consequences as to his ability to work in the position of a security guard, to garden and play with his children.
30	As a result, it is not necessary to consider further the issue of the plaintiff’s paragraph (c) case because the same result is obtained.  That is, by reason of his  fundamental unreliability and inconsistency in respect of impairment consequences, no definitive findings can be made which would allow an assessment as to whether or not he has sustained a serious severe psychological or behavioural disorder injury.
31	If I were wrong about that then I would find that the psychological injury has consequences which are not sufficient to constitute severe consequences. I accept that historically the plaintiff had 2 hospital presentations for his panic and stress conditions. Since then he has been on medication prescribed by his treating doctor. He has not had any ongoing counselling recently or referral for psychiatric treatment. He works regularly and assists with all family tasks. His impairment consequences could not be described as severe.
32	For these reasons the plaintiff’s case fails and I will dismiss the application.
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