IN THE COUNTY COURT OF VICTORIA
AT Melbourne
COMMON LAW DIVISION	Revised
Not Restricted
Suitable for Publication	
Serious Injury List		

Case No. CI-20-05758

SEAN LAWRENCE RYAN	Plaintiff	
		
v		
		
VAN BERKEL DISTRIBUTORS PTY LTD
(ABN 82 941 833 876) 	Defendant	

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JUDGE:	HIS HONOUR JUDGE PURCELL	
WHERE HELD:	Melbourne	
DATE OF HEARING:	13 and 14 July 2021	
DATE OF JUDGMENT:	11 August 2021	
CASE MAY BE CITED AS:	Ryan v Van Berkel Distributors Pty Ltd (ABN 82 941 833 876)	
MEDIUM NEUTRAL CITATION:	[2021] VCC 1067		

REASONS FOR JUDGMENT
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Subject:	ACCIDENT COMPENSATION
Catchwords: 	Serious injury – thoracic spine – psychiatric condition – whether injuries causally related to claimed incident – whether injuries “serious” – leave sought for pain and suffering and pecuniary loss
Legislation Cited:	Workplace Injury Rehabilitation and Compensation Act 2013, s335
Cases Cited:	Johns v Oaktech Pty Ltd [2020] VSCA 10; Meadows v Lichmore Pty Ltd [2013] VSCA 201; Noori v Topaz Fine Foods Pty Ltd [2018] VSCA 323
Judgment:	Leave granted for pain and suffering and pecuniary loss damages

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APPEARANCES:
	Counsel	Solicitors	
For the Plaintiff	Mr J Brett QC with
Mr P Haddad	Shine Lawyers	
			
For the Defendant	Mr M Clarke	Wisewould Mahony 	

HIS HONOUR:

Introduction
1	The plaintiff, Mr Sean Ryan, is a forty-three-year-old married man.  He has three dependent children.  Born and raised in eastern Melbourne, he completed school at Year 10 level.  Since then, he has had various manual type employments and obtained relevant tickets and licenses to operate various items of machinery.  
2	The plaintiff first worked for Van Berkel Distributors Pty Ltd (“the defendant”) from about 2001, initially as a tractor operator and then as a yardman.  During 2007, the plaintiff left his job with the defendant to go work as a fencing contractor and then, from approximately late 2010, he started work as a fencing contractor with J&B Fencing.
3	The plaintiff was working for J&B Fencing on 30 September 2012, when he was involved in a workplace accident of some significance.  A fence post with a concrete base rolled off the back of a truck and struck the plaintiff to the mid or thoracic region of his back (“the J&B injury”).  In an affidavit sworn by him on 4 August 2020, the plaintiff described the J&B injury and the subsequent course as follows:
“11. 	The pain in my back resolved completely over about the next three months.  However, I was increasingly unhappy with the lack of work that I was being offered by J&B Fencing, and decided to make a change.  For this reason, I re-commenced work for the Defendant in its warehouse from in or about April 2013.”
4	In respect to the situation regarding his back when he returned in approximately April 2013 to work again with the defendant, in his affidavit, he said:
“12. 	My back was pain free when I re-commenced work with the Defendant, although I did experience the occasional twinge. My health was otherwise good.”
5	The plaintiff was working for the defendant during 2014 when he again developed pain in his thoracic spine but also more widespread symptoms including pins and needles into the arms and legs.  Eventually, on 27 August 2014, the plaintiff stopped work.  He consulted a general practitioner, Dr Sumita Singh, at the Main Street Medical Centre in Lilydale and was referred for a CT scan of his thoracic and lumbosacral spine.  That scan was reported as follows:
“Conclusion:
T8/9 spondylotic change with intradiscal calcification and posterior annular calcification with a likely rim-calcified disc sequestration superior to this level, likely migrated from the T8/9 disc level.  There is mild central canal narrowing at the T8 level as a result.
MRI correlation suggested particularly if neuropathic/radiculopathic symptoms are present.
No significant central canal or neuroforaminal narrowing otherwise identified.”
6	The plaintiff has remained off work since 27 August 2014.  Broadly, he has had a range of conservative treatment.  He has been referred to various specialists and widely investigated.  To some extent, a precise diagnosis has remained elusive.
The nature of this application
7	This is a “serious injury” application in respect to a workplace injury.  The principles in respect to such an application are well known and are not in dispute.  Essentially, the dispute in this application is a factual dispute.  
8	The plaintiff was represented by Mr J Brett QC and Mr P Haddad of Counsel.  The defendant was represented by Mr M Clarke of Counsel.  The parties tendered affidavits, medical reports and other material.  The plaintiff was the only witness required and was cross-examined by the defendant in respect to the contents of his affidavits and the like.  I take into account all of the tendered evidence, together with the transcript of the plaintiff’s oral evidence, but I shall refer to it only to the extent necessary in these reasons.
9	The plaintiff seeks the leave of the Court to commence a Common Law proceeding for injuries suffered with the defendant.  He seeks leave to commence a proceeding for both pain and suffering and pecuniary loss damages.  
10	The plaintiff claims to have suffered a “serious injury” as per the definition contained in s.325 of the Workplace Injury Rehabilitation and Compensation Act 2013 in two ways:  Firstly, the plaintiff claims to have suffered a permanent serious impairment or loss of body function by way of injury to the spine, either because of the aggravation of pre-existing degenerative change to the spine, in particular at T8, or because of the development of an organically-based pain syndrome.  Further, or perhaps in the alternative, the plaintiff claims to have suffered a permanent severe mental or permanent severe behavioural disturbance or disorder, being a Somatic Symptom Disorder and/or an Adjustment Disorder.
11	The defendant disputes that the plaintiff has suffered a “serious injury”. The defendant raised as an issue whether there is any ongoing organic basis for the plaintiff’s presentation.  If the Court concluded that the plaintiff’s condition was psychological/psychiatrically based, then the defendant submitted that such condition was not “severe”.  Next, the defendant raised a “significant issue”, as to whether the plaintiff’s current symptoms are now causally related to the fencing injury in 2012 (the J&B injury) and whether the plaintiff’s current impairment flows from that injury, as opposed to anything that occurred with the defendant.
The credit of the Plaintiff
12	As has been said many times in these types of applications, the credit of the plaintiff is often critically important to the resolution of factual issues that arise.
13	The plaintiff presented in Court as a man in extreme discomfort.  He was using a walking stick and when standing, he was observed to lean on the chair in the witness box.  When moving about the Court, he did so in a slow manner and in a stooped position.  That presentation is consistent with how he has presented to medical examiners. 
14	The plaintiff tendered a statement obtained from Ms Cynthia Power, Business Operations Manager of the defendant.  That statement was obtained as part of a WorkCover investigation of the plaintiff’s claim for statutory benefits against the defendant.  In a statement dated 19 November 2015, Ms Power firstly records the plaintiff telling her that his back injury had come from a tree falling on him, which I understand to mean the J&B injury.  Broadly, she speaks highly of the plaintiff as a hardworking man and, if anything, a man who went above and beyond what was required of him.  She said:
“23	It was never indicated to Sean that his performance was under par. It was always telling him that he had stayed too long, and done too much.  His work was always to the extreme.  There was more talk of getting him to slow down.
 24	Sean would be told not to do so much work, that he had done too much; and that he should slow down.  It was all or nothing, and it was never steady-as-you-go.  
 25	Sean would often do overtime, particularly if the pick-up trucks were late.  If he could work late, he would work late, and if he could work the weekend, he would work the weekend. He rarely said no to overtime.”
15	In respect to the plaintiff’s claimed injury with the defendant, Ms Power said as follows:
“26	In response to the claim that the spinal and psychological injuries developed over a period of time and culminated in about August 2014:
a. 	I would say that over the period of four to six months, Sean went from being able to be straight up and down in his posture, to being hunched and unable to walk properly.
b. 	From January 2014 to April 2014 was a busy period, and he went from being reasonably normal, to the end of the season being in pain.
c. 	In the beginning of Sean’s employment, I never knew him to take a painkiller.  Late in Sean’s employment, he could barely walk, he was hunched over, and I knew he was taking painkillers.
	He still did not really complain but I knew if he could not stand up straight, something was really wrong.
 	d. 	In the end, I saw that he had taken too many drugs to cope with the pain, and I did not let him on the forklift.  I had Sean instructing someone else in what to do.
	… .”
16	Ms Power’s observation of the plaintiff becoming hunched and unable to walk properly during 2014 is consistent with how he presented to the Court.  The defendant does not suggest that the plaintiff is feigning his presentation or is a malingerer.  Rather, the defendant submitted that he is an unreliable historian in respect to the continuation of symptoms after the J&B injury in 2012, and his subsequent efforts to link those symptoms to the employment with the defendant.
17	Having observed the plaintiff in the witness box he struck me as an unsophisticated man – perhaps consistent with his education and work history – who did the best to answer questions asked of him, including making appropriate concessions.  In the end I am satisfied that I can rely on his evidence and that he is a reliable witness.  But, by the same token, in the setting of the J&B injury, the lack of any frank incident with the defendant and the lack of any contemporaneous attempt to report or link his back symptoms to his work with the defendant, does mean that this is an application whereby the objective evidence must be carefully considered to see if it is consistent with the plaintiff’s evidence.
The evidence of the Plaintiff and the rejected claims for statutory benefits
18	In his first affidavit, the plaintiff described in detail the nature of his work duties with the defendant.  Broadly, Ms Power’s statement confirms his evidence that it was a physical job, bearing in mind that I am concerned at this stage only with the question of compensable injury and not the questions relevant to a common law claim.  Having described the nature of his work duties, the plaintiff then describes what is headed as ‘The work injury’ in his first affidavit where he said:
“24.	Over time, the heavy and repetitive nature of my work for the Defendant began to take its toll.
25.	Towards the beginning of 2014, I started noticing some pins and needles in my legs. The pins and needles were worse in the right leg than in the left. There was also some pins and needles in my arms. Over about the next six months, the pins and needles in my legs worsened. The muscles in my legs started spasming and I was experiencing pain more frequently in my lower back.
26.	In or about August 2014, the pain in my back became severe. It was also radiating up in between my shoulders and down into my thighs. I was finding it difficult to stand up straight because of the pain. I had some chiropractic treatment, but the pain persisted.
27.	On or about 27 August 2014, I consulted a GP at the Main Street Medical and Skin Centre in Lilydale, Dr Sumita Singh. She certified me unfit for work and prescribed me with Tramadol and Celebrex. She also arranged for me to have a CT scan which I understand to have demonstrated a sequestrated disc at T8/9 with some central canal narrowing at that level.”
19	Despite ceasing work on 27 August 2014, the plaintiff did not rush to make a claim for compensation.  In fact, the first claim for compensation made by the plaintiff was by Claim Form dated 3 June 2015 and made against J&B Fencing in respect to the J&B injury.  That claim was rejected by letter from CGU Workers Compensation dated 6 August 2015, in part because it was determined that the plaintiff had not sustained an injury arising out of or in the course of his employment with J&B Fencing.
20	Next, the plaintiff made a claim for compensation against the defendant by claim form dated 12 October 2015.  In that claim form the plaintiff said that:
“My employer was aware of my back pain and pins and needle in my legs.  I initially thought it was from my injury at previous employment.”
21	The subsequent claim against the defendant for statutory benefits was also rejected.
22	The plaintiff was cross-examined regarding the J&B injury and the lodging of the claim against J&B Fencing.  The thrust of the cross-examination was directed towards the issue of causation and is summarised in the following exchange between the plaintiff and Counsel for the defendant:
Q:	“Just so we’re clear, what I’m putting to you is since that incident you were having ongoing issues with your back, the problems with your back never went away?---
A:	Well, as I said I had issues as in every - you know, when you work hard you get a sore back.
Q:	In that attendance there’s no reference to any issue with your back being work-related in the doctor’s note.  Now just accepting that, I suggest that there’s no reference to your work because to your mind you didn’t see there being any relationship to your work at Van Berkel’s to your back condition?---
A:	Well I thought at one stage that it could have been from the fence post, yes.
Q:	And at that stage that’s certainly what you thought.  In August 2014 you thought it was all related to the fence post incident?---
A:	Yes.
Q:	At this time you stopped work, that’s on 27 August 2014?---
A:	Yes.”
23	The plaintiff gave candid evidence during cross-examination that he initially considered the symptoms that stopped him working from 27 August 2014 related to the J&B injury, consistent with what he recorded on his subsequent claim for statutory benefits against the defendant.
24	The claim against J&B Fencing was rejected, at least in part, based on an opinion expressed by Mr Roger White, consultant surgeon, in a report of 30 July 2015, following an examination of the plaintiff on that day.  Mr White summarised his examination of the plaintiff as follows:
“This 37-year-old labourer with J&B Fencing & Gates P/L reports an incident when he was struck on his back on the date of injury with a 6-foot fencing post and attached concrete block.  He continued working for a period until June 2013 when he ceased work, and over that period attended for no medical treatment.
Returning to further employment in 2013, he continued working until August 2014 when his symptoms became severe, and since that time has been extensively investigated with no significant abnormality having been found apart from an apparent sequestrated disc fragment at T8.  He has been referred to a pain management clinic.”
25	Mr White was then asked to answer specific questions, which he did as follows:
“1.	Please detail:
•	the worker’s presenting symptoms
•	treatment (including medication) currently being undertaken or proposed.
The worker’s presenting symptoms and treatment are detailed in the above report.
2.	What is your diagnosis of the worker’s injury or medical condition (including disease)?
The diagnosis is chronic back pain, T8 intervertebral disc disease and deconditioning.
3.	In your opinion, what has caused the worker’s injury or medical condition?
He dates his symptoms from the incident on the date of injury but on the balance of probabilities I cannot attribute the current clinical picture to the incident reported.
There is an apparent discrepancy between the date of injury and when symptoms became unmanageable, as well as an extensive period when he apparently had treatment of any sort.
It also appears that there is a significant psychological component which may or may not be attributable to the worker’s injury.
4.	Based on your examination and the history provided to you:
•	Is this a new injury or medical condition or an aggravation, acceleration, exacerbation or deterioration of a pre-existing injury or medical condition?
•	If ‘yes’ to the above, to what extent has the worker’s employment contributed to the aggravation, acceleration, exacerbation or deterioration?
This is an apparently new clinical situation. He denies any past problems.
5.	In your opinion:
•	Does the worker currently have a capacity for his/her pre-injury, modified/alternate or any other employment? If so, what work restrictions are appropriate?
•	What is the expected duration of the incapacity?
•	What is required to achieve a full return to work?
He does not have a capacity for any employment, it would appear currently, and the duration of the incapacity appears indefinite.”
26	As is clear, Mr White did not link the plaintiff’s complaints to the J&B injury.
27	There is no doubt that the plaintiff did not initially seek to link his symptoms to the employment with the defendant.  The first medical practitioner he attended for treatment was Dr Sumita Singh.  When he attended on 27 August 2014, Dr Singh recorded a history as follows:
“History: p/w severe pain back for 1 wk
radiating to thighs
bowel/bladder nml
no motor deficit
back issues for yrs
seeing chiro
they allegedly got x ray done which is not nml?
pain not responding to antiinfl
Examination: stooped posture
in pain,
lower thoracic spine and mid lumbar spine tender
rotation at thoracic spine not possible
all movts at lumbar spine restricted
SLR 30 bilat
Diagnosis: BACKACHE
Treatment/Plan: Eastern Health: CT SCAN THORACOLUMBAR SPINE - CHRONIC BACKACHE AND RADIATING PAIN IN UPPER AND LOWER LIMB
TENDER LOWER THORACIC AND LUMBAR SPINE
Tramadol Actavis 50mg Capsules 1 tO 2 tds (20, R2).”
(sic)
28	Equally, when he had earlier attended for chiropractic treatment with Dr Martin Jays on 18 August 2014, it was recorded:
“Dr Martin Jays	18/8/2014     History
ACUTE ON CHRONIC LBP
P&N IN ARMS AND LEGS FOR THE PAST 6 MTHS
MULTIPLE TRAUMAS OVER HIS LIFE - MVA’s, ASSAULTS, WORK ACCIDENTS.
BILAT TENDER SIJ’s, VERY JUMPY TO PALPATION DOWN ENTIRE SPINE
Dr Martin Jays	18/8/2014     Treatment.”
29	After lodging the claim for statutory benefits against the defendant, the plaintiff was referred for a medico-legal examination with Dr Michael Baynes, who saw the plaintiff and reported on 19 November 2015.  Dr Baynes was asked his opinion as to what had caused the plaintiff’s injury or medical condition.  He answered that question as follows:
“It is difficult to determine what caused the worker’s injury.  From the point of view of employment with Van Berkel Distributors, I note the claim form was presented in October 2015.  Mr Ryan is extremely vague regarding a time set for the onset of pain and also any triggering factors. He puts it down to the general nature of the work.  I do not believe that the onset of pain is related to driving forklifts or trucks and note that Mr Ryan advises that the picking of bulbs was light and also was limited and was not his main role.  There is a presentation on the 27/8/14 but no work injury is noted and it is stated there were back issues for years.  A claim was do submitted at the time. I do not believe his work as warehouse manager at Van Berkel caused his back condition.”
30	For completeness, as part of a timeline, the plaintiff was referred to a psychiatrist for a medico-legal assessment as part of the claim against J&B Fencing.  Dr Hillol Das, consultant psychiatrist, examined the plaintiff on 4 August 2015 and produced a report that day.  In respect to the onset of symptoms in his back, Dr Das obtained the following history:
“Mr Ryan is a 37-year-old man.  He was employed as a tractor operator in full-time capacity with a fence building company since 2010 end.
He said he had an injury at work in September 2012 that he considered at the time a minor injury and he was able to continue working for his normal duties and full hours till March 2013.  He changed job In March 2013 when he commenced with a new employer as a warehouse manager.  He worked there for about one and a half years till September 2014 when, he said, he had had to leave because he was no longer able to cope with the pain arising out of his back injury sustained at work in September 2012. He is since then on Centre link benefits and he lodged his work injury claim through the advice of his solicitor only about a month ago.
He told me that when the injury first happened he was not particularly affected.  A fence post had fallen on his back from the back of the truck. He was dropped to the ground on impact and he had pain, but he was able to ‘push through’ the day but later, during a meal break his pain was worse affecting his mid upper back and he then informed his employer. He went home and had a warm shower and had pain relieving medications. He thought the pain will go away and he did not see anyone.”
31	Dr Das obtained a subsequent history of injury after the plaintiff returned to work with the defendant as follows:
“While he continued to work since, every now and then he would have pain and he would have to ‘take it easy’ or take rest or sometimes take pain medications.  He said he got used to it and the problem was never that bad for him to stop work while he worked full-time in his new job.  However, since around July-August last year, he noticed ‘pins-and-needles’ intermittently in his right leg and the problem, he said became gradually worse as well as the lower back pain that was much more persistent affecting the mid back region below his shoulder blades.  He said he tried to ‘push through it’ but he was not able to cope with the constant presence of pain and he saw a chiropractor and an x-ray was done.”
32	There is no suggestion of any specific or frank incident with the defendant.  The plaintiff’s symptoms appear to have come on insidiously over time, as confirmed by Ms Power.  There is also no doubt that in the early stages after ceasing work with the defendant the plaintiff gave a history of the J&B injury and there was a focus by him on it.  
33	It is trite to note that the plaintiff is not medically qualified, and equally he is not legally qualified.  He lodged a claim against J&B Fencing and gave a history of events.  That claim was rejected based on the medical opinion of Mr White as already discussed.  In those circumstances, I do not consider any adverse inference should be drawn against the plaintiff when, informed that his claim had been rejected and of Mr White’s medical opinion, that he would then, acting on legal advice, make a claim against the subsequent employer (the defendant).  This is more so bearing in mind the physical nature of the work with the defendant and the onset of symptoms as noted by Ms Power after a busy period at work from January 2014 to April 2014, and in her words, the plaintiff going from “being reasonably normal, to the end of the season being in pain”.
Did the Plaintiff suffer injury with the Defendant?
34	The plaintiff tendered reports from treating health practitioners.  As correctly and candidly acknowledged by his Senior Counsel, those reports are not particularly informative when it comes to a diagnosis of any injury suffered with the defendant, but they do record a consistent complaint of symptoms after the initial attendance on Dr Singh on 27 August 2014, in contrast to an absence of treatment before that date.  I will deal with this evidence in due course.
35	On any view, there was a dramatic deterioration in the plaintiff’s physical capacity through 2014.  The issue is whether that is related to the J&B injury; subsequent injury, or aggravation with the defendant; or some other cause.
36	It is relevant, in my view, that the plaintiff did perform heavy work for the defendant, and there is no suggestion that he was not capable of that work when he returned to work with them in April 2013.  It was put to him in cross-examination that:
Q:	“And I suggest that you were still continuing to experience pain and issues with your back when you commenced with Van Berkel in the warehouse?---
A:	No, because it had all finished up, as in my pain, and I didn’t feel it any more. I’d get the occasional twinge, like anyone who works manual labour.
Q:	What I suggest is that September 2012, that was really the start of your physical decline?---
A:	No. When I was working at Van Berkel I was at pretty much my fittest.
Q:	At the time you commenced with Van Berkel did you commence - were you wearing a back brace?---
A:	I started wearing a back brace later on in, working for Van Berkel, probably 12 months into it, 12 to 13 months I’d say.
Q:	Sorry, I missed that?---
A:	Twelve to 13 months roughly.
Q:	And when do you say your symptoms in your back commenced with Van Berkel?---
A:	Probably about the same time that I started using the back brace.
Q:	Okay.  So there was no specific incident or event?---
A:	Apart from wrapping a lot of pallets, no.”
37	Having considered the whole of the evidence, there is no doubt the plaintiff had an injury at J&B Fencing which rendered his mid back symptomatic for a time.  It appears likely that he had occasional back pain thereafter, but nothing that appears to have prevented him from performing his work, or from engaging in a range of day-to-day activity. But, the situation dramatically changed during 2014.  I have already mentioned the opinion from Mr White.  There is no other medical opinion that links the deterioration in 2014 to the J&B injury.
38	The plaintiff bears the evidentiary onus to establish compensable injury.  His own evidence is relevant, but so is the evidence of the nature of his work with the defendant, including the evidence of Ms Power, and of dramatic deterioration in his physical condition whilst undertaking that work, particularly wrapping the pallets.
39	There is an issue “within issue” at this stage which is not only whether an injury was suffered with the defendant, but whether it is a physical or a psychological injury, or both, but bearing in mind that for “serious injury” purposes the two cannot be combined.
The evidence from treating health practitioners
40	I now turn to deal in detail with the medical evidence, beginning with the evidence from the treating practitioners.  I will then deal with the medico-legal evidence firstly of physical injury and then of psychiatric injury, before moving to analyse that evidence to resolve the issues as identified, namely whether the plaintiff suffered injury with the defendant which continues to be productive of impairment and impairment consequences in respect to either pain and suffering or pecuniary loss, and whether such injury (if there was an injury) is a physically based or psychiatrically based condition.
41	As already mentioned, the first general practitioner that the plaintiff attended for treatment was Dr Singh.  In a report of 16 August 2015, Dr Singh noted that “there is no definite diagnosis yet” and that “his employment can be considered as an aggravating factor rather than being the cause of his undiagnosed condition”.
42	The plaintiff then transferred his general practitioner care to Dr Binay Kumar at the Mount Evelyn Medical Clinic.  In a report dated 15 June 2017, Dr Kumar noted that the plaintiff had been seen “by various specialists in neurology, orthopaedics, rheumatology and pain management but there has been no definitive diagnosis”.  Dr Kumar said further that “currently I have not noticed much response to any treatment likely due to chronic pain syndrome”.
43	The plaintiff was referred by Dr Singh to Dr Shom Bhattacharjee, consultant physician and rheumatologist, who saw the plaintiff for the first time on 15 July 2015.  In a letter back to Dr Singh, Dr Bhattacharjee said “I am afraid I am at a loss to explain Sean’s symptoms”.
44	Dr Bhattacharjee provided a report dated 13 September 2017 repeating his earlier opinion.
45	The plaintiff was assessed by Dr Sarah Donovan, pain management registrar, at Eastern Health.  In a letter dated 10 March 2015 written back to Dr Singh, she noted the plaintiff was to be fast-tracked for an Allied Health program and made recommendations regarding medication.
46	Dr Louisa Soh, consultant physician in rehabilitation medicine at the pain management clinic at Eastern Health, then reported back to Dr Singh by letter dated 26 May 2015.  She said that her assessment was that “Mr Ryan does present with signs consistent with fibromyalgia”.
47	Dr Soh repeated her opinion in another letter to Dr Singh of 6 October 2015, and once more in a letter of 19 April 2016.
48	Dr Ceyda Gayde was a pain registrar at Yarra Ranges Health who examined the plaintiff on 25 October 2016 and reported back to Dr Kumar, in which she noted the plaintiff had been seen “by multiple neurologists who have not found a diagnosis for his pain or any significant neuropathy”.
49	Dr In Sun (Tom) Na was another pain clinic registrar at Yarra Ranges Health, who reported on 18 September 2018 regarding the plaintiff’s situation.  Dr Na recorded the medication that the plaintiff was then using and his description of ongoing pain and symptoms, but otherwise the report is not particularly informative.
50	The plaintiff was referred to Dr Zarrar Chowdary, consultant psychiatrist.  Dr Chowdary saw the plaintiff on 22 June 2016 and reported back to Dr Singh.  Dr Chowdary recorded the plaintiff “presenting with a chronic pain syndrome and has been dependent on opioids and has a poor control over its use, with symptoms of depression and anxiety, and there is a notable social and occupational decline”.  Dr Chowdary said further that the plaintiff needed to engage with a pain specialist and “it would be worthwhile to see a psychologist from the pain clinic as well”, but otherwise discharged the plaintiff back to his general practitioner.
51	The plaintiff attended Mr Greg Troup, clinical psychologist, who reported back to Dr Singh on 29 September 2015, in which he also opined there may be benefit from the chronic pain clinic at Eastern Health.
52	Ms Marika Cock, clinical social worker/counsellor/family therapist, had the plaintiff referred to her for focussed psychological strategies/psychological therapy and she reported back to Dr Kumar on 28 September 2017.  She reported again to Dr Kumar on 12 April 2018, and then provided a counselling report dated 5 May 2021.  In that report, she notes that as a clinical social worker it is not within her scope to formally comment on diagnosis, but the symptoms that the plaintiff had presented with to her were “consistent with clinical depression and pain-related issues”.
53	Finally and having set out the evidence from treating practitioners in chronological order, Dr Kumar provided a further report dated 12 July 2021.  In that report, Dr Kumar says “Sean is currently suffering from anxiety/depression.  This has been brought on gradually due to the ongoing chronic pain since the injury and his inability to do anything” and that “looking at the notes available this workplace injury on 27 August 2014 does seem to be a significant contributor to his current psychiatric condition”.  Dr Kumar then said, in respect to work capacity, that the plaintiff “does not have a current capacity to work, however if his symptoms of chronic pain improve, he may be okay to do non-manual work” and that “we still do not have a definitive diagnosis of his back pain following his lower back injury after a workplace incident.  He is likely to have developed chronic pain syndrome due to unresolved symptoms”.
54	That is the extent of material from treating practitioners.  As acknowledged by the plaintiff, that material is not particularly informative as to a physical diagnosis.  It is, however, informative in the sense that a constant and recurring theme is of the plaintiff having developed a “chronic pain syndrome”.  Further, the material is supportive of the proposition that problem came on and persisted whilst the plaintiff was working with the defendant.
The medico-legal evidence
55	The first medico-legal opinion is contained in a Certificate of Opinion of a Medical Panel dated 2 June 2016.  That opinion was as follows:
“Question i)
 What is the worker’s degree of permanent whole person impairment resulting from the accepted injury/s as assessed in accordance with Section 54 and is the impairment permanent?
Answer:
In the Panel’s opinion the worker has a 0% whole person impairment resulting from the accepted spine (temporary aggravation T8‑9 degenerative changes) injury when assessed in accordance with Section 54 of the Act.  The degree of impairment is permanent.
The Panel is also of the opinion that there is a 0% psychiatric impairment  resulting from the accepted psychological injury when assessed in accordance with Section 54 of the Act.  The degree of psychiatric impairment is permanent.
The degree of impairment includes a 0% whole person impairment assessed in accordance with Chapter Three of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (Fourth Edition).
Question ii)
Does the worker have an accepted injury, which has resulted in total loss injury mentioned in the table in Section 221?
Answer:
No.”
56	Next, the plaintiff was seen by Associate Professor Anthony Buzzard, general surgeon, on 9 November 2017.  In a report of 10 November 2017, Associate Professor Buzzard obtained a history that:
“He said his problem started about 3 years ago.  He started to develop pins and needles predominantly in the right leg.  There was no specific accident involved.  He said he had had several accidents in the past (see below).”
57	Associate Professor Buzzard obtained a further employment history as follows:
“EMPLOYMENT HISTORY
At the time of the onset of his pins and needles three years ago, he was employed by Van Berkel Distributors loading and unloading trucks and storing things away and getting them out.  He said he was taking time off ‘here and there’.  He is not at work now.  He last worked in October 2014.  He had been working for Van Berkel for about 12 months.  Before that he was an [sic] employed as a fencer for two or three years and before that he was a self-employed fencer and currently being employed as a labourer for a pool tiler for 2 or three years.  He had previously again worked at Van Berkel Distriubutors for some 7 years.  He has done previous labouring and pool tiling jobs.  He does have a tractor licence.”
58	Associate Professor Buzzard’s assessment of the plaintiff was as follows:
“ASSESSMENT
I think that Mr Ryan does have degenerative disease in his spine.  This is evidenced by the imaging  results that you have sent me.  It is reasonable to accept that the nature of his work at the time of the onset of his  symptoms did aggravate that degenerative disease.  I appreciate that this is the Medical Panel opinion.  I agree with it.
As far as his ongoing symptoms now are concerned, the pattern of distribution of the pins and needles of which he complains is not that of a physically based problem.  In other words, I think that he has a psychologically based problem.  That of course is outside the field of my professional expertise.  If you wish to pursue that further, you would need to obtain an opinion from a consultant psychiatrist.
So far as his various pain management problems are concerned, from a purely physical perspective, I don’t think there is a justification in accepting that he has ongoing physically based pain.
So far as his employment capacity is concerned, I think that this is a matter for a consultant psychiatrist.”
59	Associate Professor Buzzard did not obtain a history of the J&B injury.  However, based on the history given to him of symptoms with the defendant, he formed the view it was reasonable to accept that work aggravated underlying degenerative disease, consistent with the earlier Medical Panel opinion, but equally he did not accept the plaintiff had a physically based condition at that point in time.
60	The plaintiff was examined by Dr Matthew Tagkalidis, consultant psychiatrist, on 17 October 2017.  In a report dated the same day, Dr Tagkalidis came to the conclusion that the plaintiff was “suffering from an Adjustment Disorder with Mixed Anxiety and Depressed Mood relevant to the accepted injuries”, but that “it was not possible to definitively diagnose a Chronic Pain Disorder given the diversity of medical opinions”.
61	Next, the plaintiff was referred to a differently constituted Medical Panel who provided a Certificate of Opinion dated 9 April 2018 which is confined to an impairment assessment.  However, within the reasons for opinion, that Medical Panel disagreed with the earlier Panel and said that the plaintiff “had a temporary aggravation of T8-9 degenerative change that had resolved”.  It also stated that it was of the view that the plaintiff “has developed a Chronic Pain Disorder with a bizarre description of pain which causes significant impairment in social, occupational and other functioning and which cannot be entirely accounted for on anatomical grounds”.
62	The plaintiff was seen for medico-legal purposes by Dr Michael Epstein, consultant psychiatrist, on 22 February 2019.  In a report of that date, Dr Epstein set out a comprehensive history of injury, including the J&B injury, and events thereafter.  He then expressed his opinion as follows:
“From a psychiatric point of view he has developed a chronic Somatic Symptom Disorder with predominant pain, a diagnosis used where there are widespread complaints of pain with no obvious pathology to explain the pain.
His quality of life appears to have diminished markedly affecting his work capacity, his relationships and his recreational enjoyment.
His pain may be related to the apparent back injury on 30 September 2012 but that appears to have settled  by at the latest early in 2013.  His current condition seems to have come on more than twelve months later and is not clearly connected with that initial injury.  Apart from his work there appear to be no other particular factors that could have contributed to the development of this condition that have been brought to light.
His psychological injury/condition is stable and permanent.
I have noted the Medical Panel opinion of 9 April, 2018 and agree with that opinion.  Usually a chronic pain disorder is precipitated by some physical injury that subsequently settles but leaves a person in chronic pain.  It is therefore not so much psychological in origin but the original physical injury, whatever it is, leads to a significant psychological response.
His condition is stable and his prognosis for improvement is poor.  He may benefit from more psychological counselling if only to prevent further deterioration.”
63	As mentioned earlier, the plaintiff has been seen for medico-legal purposes by Dr Michael Baynes, occupational physician.  He has provided two reports, the first of which I have already discussed.  His more recent report is dated 10 November 2020 after an examination of the plaintiff on that day.  Dr Baynes did obtain a history of the J&B injury, but also of the onset of symptoms during 2014.  Dr Baynes assessed the nature of the plaintiff’s condition or injury as follows―
“Mr Ryan is suffering from a chronic pain syndrome associated with chronic pain affecting the mid to thoracolumbar region and in the lumbar area with referred symptoms into the arms and legs associated with central sensitisation of pain.  There is evidence of an old degenerative disc prolapse at the T8/9 level but no significant pathology found in the lumbar spine on radiology.  The cause of the ongoing generalised symptoms is unclear.”
64	Further, in respect to work capacity, Dr Baynes said as follows:
“Based on presentation over Zoom and the history, I do not believe that he has a capacity for employment.  This is related to significant pain, easy amplification of pain with activity and limited range of movement.”
65	The plaintiff was then seen by Mr Rodney Simm, orthopaedic surgeon, on 17 November 2020.  In a report of that date, Mr Simm set out the history of injury with J&B Fencing and then the worsening of symptoms with the defendant.  He had the history of ongoing treatment and symptoms.  He then expressed his opinion in respect to the plaintiff’s condition as follows:
“The diagnosis is a chronic pain illness, manifest as pain involving the entire spine and both upper and lower limbs. He has non-specific numbness and pins and needles involving both upper limbs, possibly worse in the right lower limb than the left.  He has been extensively evaluated for neurological involvement.  This evaluation has included consulting two Neurologists and having Nerve Conduction Tests and EMG studies, which have excluded any underlying physical cause for the symptoms.  The MRI scan of his spine showed some relatively minor degenerative disc changes in the mid thoracic region; otherwise the spine was normal.  The investigation did not provide an explanation for his spinal pain. It would therefore seem that his chronic spinal pain illness is now due to non-organic and/or psychological factors and falls in the field of chronic pain and psychiatry rather than orthopaedic surgery.
Symptoms in his lower back and associated neurological symptoms in his limbs came on whilst he was undertaking heavy and repetitive lifting in the employ of Van Berkel Distributors.  The repetitive lifting was associated with back pain, possibly from muscle fatigue.  There was a past history of direct trauma to the back when he was struck by a fence post in 2012, but this would seem to be irrelevant, as he recovered from this incident and his symptoms are not localised to the region of the back where he was struck.
I concluded it was reasonable to accept that he had work-related back pain, but psychosocial issues seem to have supervened in 2014 and led to the onset of his chronic pain illness, from which he has never  recovered.”
66	Mr Simm then said further, that:
“His condition now seems to relate to non-organic and/or psychological rather than physical factors.  He would be better assessed by specialists in the management of chronic pain and psychiatry.”
67	Next, the plaintiff was seen at the request of his solicitors by Professor Richard Bittar, neurosurgeon, on 11 January 2021.  In a report of that date, Professor Bittar obtained a history that included the J&B injury, as well as the onset of symptoms with the defendant.  The physical examination was limited because “any contact with his skin resulted in excruciating pain”.  In respect to diagnosis, Professor Bittar stated:
“In my opinion, Sean Ryan presents with probably aggravation of thoracolumbar spondylosis. He has developed a very debilitating, chronic pain syndrome.
He reports widespread sensory disturbance affecting his upper and lower limbs and intermittent weakness of his legs. The cause of these symptoms is unclear and they are unlikely to be related to his spine. I would recommend that he undergo bilateral upper and lower limb nerve conduction studies and electromyography, and be reviewed by a neurologist.”
68	In respect to causation, Professor Bittar said as follows:
“In my opinion, his aggravation of thoracolumbar spondylosis and development of chronic pain syndrome is work-related. Specifically, the heavy and repetitive workplace activities undertaken during the course of his employment with the Defendant remains a significant contributing factor.”
69	Pausing here, in many respects Professor Bittar’s opinion is similar to Mr Simm, namely an acceptance of the development of symptoms – described by Professor Bittar as the aggravation of thoracolumbar spondylosis – in the course of his employment with the defendant, and then the development of a chronic pain syndrome, being a psychologically-based chronic pain syndrome.  Where the doctors differ is that Professor Bittar seems to accept that there is an ongoing physical injury, although he does not explicitly say so in his report.
70	The plaintiff attended consultant psychiatrist, Dr Brendan Hayman, on 4 February 2021 at the request of his solicitor.  In a report of that date, Dr Hayman sets out a history and also his perusal of a number of relevant medical reports.  In respect  to a diagnosis, analysis and discussion, Dr Hayman commented that “this was a somewhat complex assessment”.  Dr Hayman then said―
“He has been dependent on opiates for more than six years. He has engaged in a pain management clinic, but continues to have significant pain nonetheless. Significantly, this has led to a very circumscribed life. He largely spends his time at home in the back yard smoking cigarettes. He is increasingly dependent on his wife. He has now engaged with the NDIS for more than three years and has a variety of supports. Diagnostically, he has developed a Somatic Symptom Disorder with predominant pain. In this, I am in agreement with the views of the Medical Panel (albeit that I have not had access to their report, but note this from Dr Epstein’s report). Dr Epstein was also of the view that he suffered a Somatic Symptom Disorder with predominant pain, as did his previous psychiatrist Dr Chowdary.
 He has also developed features of an Adjustment Disorder with depressed mood. He sees a psychologist, but has never properly engaged with a psychiatrist. He is on the anxiolytic/antipsychotic Seroquel at a low dose. He has trialled various antidepressants, but has never continued with these.
 His depressive disorder is relatively mild. His main issues relate to his experience of pain.”
71	Dr Hayman repeated his opinion in answer to specific questions.  In respect to diagnosis, he said―
“He has developed a Somatic Symptom Disorder with predominant pain and an Adjustment Disorder with Depressed Mood.  It appears these have occurred consequent to his employment, particularly in 2014. By his account, his prior back issue had resolved.  It appears this was an exacerbation of a pre-existing back injury.”
72	Finally, Dr Hayman said―
“The main impact on Mr Ryan's work capacity for pre-injury duties relates to his experience of pain. This relates to his Somatic symptom disorder with predominant pain. His Adjustment Disorder, of its own accord, is mild and would not impact on such to any significant degree.”
73	Dr Kilner Brasier, occupational physician, examined the plaintiff at the request of his solicitors and provided a report dated 16 March 2021.  In that report, Dr Brasier obtained the history of the J&B injury as well as the onset of symptoms with the defendant.  He presented to Dr Brasier in a stooped posture using a walking stick, and Dr Brasier noted it was impossible to palpate or properly examine the lumbar spine.  In respect to a diagnosis, Dr Brasier said:
“Mr Ryan has suffered an aggravation of thoraco-lumbar spondylosis.  He suffers from an adjustment disorder with depressed mood.”
74	Next, Dr Symon McCallum, pain physician and specialist anaesthetist, examined the plaintiff at the request of his solicitors and provided a report dated 23 March 2021.  He had the history of the J&B injury and then the onset of symptoms during 2014.  Dr McCallum recorded his impression as the plaintiff having a “chronic pain syndrome” and that “I think Mr Ryan [has] a somatic disorder, this predominantly pain.  This should not be confused with feigning or malingering.  It also can be classified as an organic problem and can occur with the previous diagnoses”, and “His spinal pain may be symptomatic, but it is amplified by psychological state.”
75	In respect to the aetiology of the plaintiff’s injuries, Dr McCallum said as follows:
“It does seem as though from the history provided today that the incident would be the fence poles started Mr Ryan's decline. It seems as though things are made considerably worse by the work at the warehouse. I think it is difficult to say which of these events is 100% responsible for the aetiology of the somatic disorder that is predominantly pain. It is likely that the fence injury is responsible for the thoracic pain.”
76	Dr McCallum said further:
“As somatic disorder is predominantly pain is considered a psychiatric injury, I think this question may not be possible to answer with a greater deal of confidence. If we take a biopsychosocial approach to Mr Ryan's case, he is clearly not fit for pre-injury duties. I think his incapacity is going to continue for the foreseeable future.”
77	The final medico-legal psychiatric opinion is contained in a report of Dr Dush Shan, consultant psychiatrist, dated 13 May 2021.  In that report, and based on an interview with the plaintiff and review of various medical reports, Dr Shan provided the following summary and diagnosis―
“The patient is a 43 year old manual worker who believes he sustained his current back injury through repetitive lifting at the last place of work. He ceased work and did not indicate resuming any work for the employer. He advised that he never received WorkSafe payments and is instead on Centrelink payments. Currently he was also receiving support from NDIS services with respect to various modifications around the home.
 He takes fairly typical medications normally prescribed for chronic pain. He was not on high doses of psychotropics but does attend a psychologist.
 On mental state examination there appeared to be some evidence of clinical anxiety and depressed mood.
 It is concluded that there is a diagnosis of Adjustment Disorder with mixed anxiety and depressed mood.”
78	Dr Shan said further that―
“The psychological symptoms are relatively mild but do constitute incapacity for his pre-injury job because he would become anxious about worsening his physical complaints.
 There has been some impact on domestic and social activities.
 From a solely psychiatric viewpoint, in respect of the diagnosis of Adjustment Disorder, he has a capacity for any suitable work that is considered to be within his physical limitations.”
79	Finally, completing the medico-legal picture is a report of Dr Clayton Thomas, consultant in rehabilitation and pain medicine.  He examined the plaintiff on 1 June 2021 and provided a report dated 4 June 2021.  Dr Thomas had the history of the J&B injury and the onset of symptoms with the defendant.  In response to various questions, Dr Thomas said as follows:
“The worker is suffering from a chronic pain syndrome. I think the genesis came from the T8-9 degenerative disc. I think he probably did sustain an injury at that level related to his work duties. Nonetheless, since then the pain has become more diffuse, more widespread. It appears that he has not been able to be physically examined because of the sensitivity in his upper back and lower back regions. It appears that this has been the case from the outset.
I note, with interest, that none of the examiners who have examined him have determined non-organic examination findings. For instance, straight leg raising has not been observed to be abnormal, nor has there been any discrepancies on examination. Multiple non-organic findings tend to point more towards a somatic symptom disorder. As such, it does appear that he has probably two primary problems. He has the underlying degenerative disc at T8-T9, which probably has resolved. He has a chronic pain syndrome with both organic and non-organic components.
He has a centralised pain syndrome across his spine, upper and lower spine. He also has a somatic symptom disorder. He has a number of somatic symptoms which significantly disrupt his daily life. These symptoms are shown to exist in thoughts, feelings and behaviours, which are disproportionate and persistent. The symptoms have been present for more than six months, predominantly with pain, and at the very least moderate in nature.
The presence of somatic symptom disorder does not mean that other chronic pain syndromes cannot be present at the same time. In this man's case he may well have an organic chronic pain syndrome. I take particular note of the fact that there have not been any non-organic examination findings determined by the various doctors who have assessed him.
The findings of diffuse and widespread tenderness and hypersensitivity is, in and of itself, not a nonorganic examination finding and can be present in organic chronic pain syndromes.
Somatic symptom disorder is a common comorbid condition with these situations.
He presents as being markedly disabled. He presents as having no working capacity. Given his previous education, skills, and work experience, irrespective of his age, he does not present as having any capacity to perform appropriate work duties.
His place of residence does not preclude return to work.
My understanding is that he is certified unfit to work and I would confirm that to be the case. He does not have work capacity. He meets the definition of no current working capacity. This will be indefinite.
Occupational rehabilitation services will not alter this reality for him.
I believe that there is a relationship between the event that occurred in 2014 and the T8-9 disc problem, and then the evolution into a chronic pain syndrome, both organic and non-organic in nature, as described above.
I believe that based on the physical injuries alone he is precluded in his ability to return to work into the foreseeable future.
I believe that he is unable to return to his pre-injury work duties based on the physical injuries alone.
I believe that based on his previous work history, and based on the physical injuries alone, he is not able to return to suitable employment.
He is not able to contribute to any great extent to domestic chores. He does minimal domestic chores. He has assistance through NDIS with a cleaner weekly.”
80	Pausing again, Dr Thomas has expressed an opinion in some ways similar to the opinions of both Professor Bittar and Mr Simm, namely that there was an onset of symptoms relevant to the underlying thoracic degenerative disease and then the development of a chronic pain syndrome.  Like Mr Simm, Dr Thomas is of the opinion that the aggravation of the thoracic degenerative condition has, in his words, probably resolved.  Where he differs from both Professor Bittar and Mr Simm is his opinion that the resultant chronic pain syndrome has both an organic and non-organic component.
Analysis
81	Based on the totality of the evidence, including as discussed, I make the following conclusions―
(a)	the plaintiff suffered injury to his thoracolumbar spine as a result of the J&B injury and was mildly symptomatic from time to time thereafter, including when he resumed employment with the defendant in approximately May 2013;
(b)	notwithstanding the J&B injury, the plaintiff was able to perform full and unrestricted heavy, manual labour with the defendant until there was a deterioration – and a dramatic one at that – in his physical condition during 2014 and leading up to the cessation of employment on 27 August 2014;
(c)	that in the course of his employment with the defendant, the plaintiff suffered the aggravation of an underlying thoraco-lumbar degenerative condition and that aggravation triggered the development of a subsequent chronic pain syndrome;
(d)	the effect of the aggravation of the underlying degenerative condition has ceased, but the effect of the chronic pain syndrome has persisted.
82	Following on from the preceding paragraph, the issue then becomes whether the chronic pain syndrome has an organic (physical) basis, or a psychiatric basis, or both.
83	In Meadows v Lichmore Pty Ltd, Maxwell ACJ (as he then was) said as follows―
“1.	This appeal raises a question of continuing importance in serious injury litigation:  how is a judge to decide a serious injury application in a case where the pain and suffering consequences relied on to establish the serious injury are attributable to both physical and psychological causes?
 2.	The starting point (where the injury is work-related) is s 134AB(38)(h) of the Accident Compensation Act 1985 (Vic) (the ‘Act’). The Court, in assessing the pain and suffering consequences of an injury, must exclude the psychological or psychiatric consequences of that injury. It follows that, to establish serious injury, the applicant must satisfy the Court, on the balance of probabilities, that the organically based pain and suffering consequences satisfy the statutory criterion of being ‘more than significant or marked and … at least very considerable’. 
 …
 20.	According to counsel for the respondent, it is the highlighted passage which explains the approach of the judge in the present case.  Apparently, what Ashley JA said there has in practice been reformulated as a question, to the following effect:  ‘Do the pain and suffering consequences attributed to the relevant impairment have a substantial organic basis?’.  As is apparent from the excerpts from the trial judge’s reasons set out above, ‘substantial organic basis’ is the very phrase which he used.
 21.	As a result, so the respondent submitted, serious injury applications raising issues of this kind are effectively approached in a two-step manner.  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.
 22.	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. 
 23.	Senior counsel for Mrs Meadows accepted that this was an accurate description of the way applications of this kind are conducted as a matter of practice.  Indeed, the materials relied on by Mrs Meadows appear to confirm as much.  For example, one of the questions posed by the solicitors for Mrs Meadows to Mr Kenneth Brearley, an expert medical witness, was in these terms:
 In your opinion, does the core of Mrs Meadows’ disability and symptoms stem from physiological factors?
 	Another practitioner, instructed by the solicitors for the plaintiff, answered what was presumably the same question, by saying that in his opinion there was ‘mainly an organic component’ to the symptoms from which Mrs Meadows suffered.
 …
 29.	This case illustrates that, when ‘disentangling’ becomes necessary, the state of the medical evidence will largely determine whether it can be done.  As this experienced judge said in his reasons, where at least some of the medical evidence suggests a significant psychological component, the evidence relied on by the applicant will need to be in a condition which will enable the Court to clearly identify whether and to what extent the pain and disability has an organic basis.  Unless the evidence enables that distinction or differentiation to be made, it will be difficult for an applicant to establish on the balance of probabilities that the organic basis accounts for pain and suffering consequences which satisfy the test.” 
84	More recently, in Noori v Topaz Fine Foods Pty Ltd, Maxwell P, Hargrave and Forrest JJA, dealt with an appeal in respect to a claim based on paragraph (c) of  the definition of “serious injury”.  The brief factual scenario of that case is as set out in the judgment as follows―
“2.	The applicant fell awkwardly from a stepladder.  He subsequently developed symptoms of acute and disabling pain.  There was, however, no organic injury which would have explained the levels of pain and loss of function which he identified.  The judge accepted, nevertheless, that the applicant’s account of his experience of pain was genuine.  And it was common ground that, before the work accident, he had experienced no such symptoms.”
85	In Noori, the Court of Appeal then said―
“3.	The basis of the application under para (c) was attractively simple.  The applicant had a pre-existing psychiatric illness or disorder, resulting from traumatic experiences both before and after he came to Australia as a refugee.  His genuine experience of severe pain was both a symptom and a consequence of that ‘mental or behavioural disturbance or disorder’.  The significant new pain symptoms constituted an aggravation or exacerbation of his prior condition, and had consequences which satisfied the ‘serious injury’ definition.[4]
 4.	The judge rejected the application.  His Honour accepted that the accident had been a cause of ‘some of the plaintiff’s ongoing non-organic symptoms’.  He said, however, that he [had] difficulty in disentangling those work-related symptoms from the totality of the plaintiff’s ongoing condition. 
 5.	With great respect, no question of ‘disentanglement’ arises under para (c) of the definition of serious injury.  As the decisions of this Court make clear,[ ‘disentanglement’ is a task which arises — if at all — only in relation to para (a) of the definition.  That is, where the application is based on the ‘permanent serious impairment or loss of a body function’, the court is obliged — by s 134AB(h) — to exclude from consideration ‘the psychological or psychiatric consequences of a physical injury’.  Where necessary, that will require the ‘disentangling’ of the psychological consequences of the injury from the physical consequences. 
 6.	In relation to para (c), by contrast, the court is able to take into account both:
·	the psychological or psychiatric consequences of a physical injury’;  and
·	the physical consequences of a mental or behavioural disturbance or disorder’.
 7.	In the present case, the applicant was severely disabled by the pain he was experiencing.  That the pain had a psychological, rather than a physical, basis was not in dispute.  Nor was there any doubt that the experience of pain was a reflection of the applicant’s pre-accident psychiatric condition.  That was precisely how he put his claim. 
 8.	None of that affected the analysis, however.  On the uncontested evidence, it was the work accident which had caused the acute pain response.  The respondent having conceded that the pain and suffering consequences satisfied the ‘narrative test’ for serious injury, the appeal must be allowed.  We would set aside the judge’s decision and, in its place, order that the application be allowed.  Our reasons are as follows.”
86	In the application before the Court, I concur with those doctors who have described the complicated nature of the plaintiff’s presentation and the search for a diagnosis.
87	Commencing with the application brought pursuant to sub-paragraph (a), having considered the totality of the medical evidence and in undertaking the “first step”, I am not satisfied that the plaintiff’s current presentation has a substantial organic basis.  I acknowledge the opinion of Dr Thomas, who I understand by reputation to be an eminent and well regarded pain specialist, that the plaintiff’s current presentation has both an organic (centralised pain syndrome) and a non‑organic (somatic symptom disorder) component.  I also note that to some extent, Dr Thomas’s opinion is supported by the opinion of Dr McCallum, namely of a chronic pain syndrome, muscular in origin.  However, having considered the totality of the medical material, I am not satisfied that there is an organic basis for the plaintiff’s presentation.  But regardless, even if there is an organic basis, the opinions of Dr Thomas and of Dr McCallum tend to a conclusion that it is the psychiatric condition (the somatic disorder) which is the predominant cause of the plaintiff’s chronic pain syndrome.
88	Therefore, the “second step” is to determine whether the psychiatric condition is “severe”.
89	As already mentioned, the defendant does not suggest that the plaintiff is feigning or is a malingerer.  He has presented as profoundly disabled for the best part of seven years.  He is on a raft of medication and there is no real suggestion in any of the material that he is fit to return to his pre-injury employment, or to any other employment.  The exception is the opinion of Dr Shan that the plaintiff’s psychological symptoms “are relatively mild”.  Interestingly, Dr Shan was provided with a number of medical reports, but he was not provided with any of the more recent medico-legal reports and he was not provided with any of the medico-legal psychiatric opinions.  Dr Shan does not appear to have turned his mind to a possible diagnosis of a somatic disorder in circumstances where that diagnosis is front and centre in many of the medico-legal reports and, as such, I conclude that his opinion is against the weight of medical opinion.
90	As a result of the aggravation of underlying degenerative change in the thoraco-lumbar spine, the plaintiff has gone on to develop a psychiatrically based condition, in my view, best described as a somatic disorder together with a co-existent adjustment disorder with depressed mood, consistent with the opinions of Dr Epstein and Dr Hayman, together with many of the other medical opinions including Dr Thomas and Dr McCallum.
91	The plaintiff’s psychiatric condition must meet the test of “severe” in order to produce a “very considerable” consequence.  I have no hesitation in concluding that the plaintiff’s psychiatric condition is “severe”, both in respect to pain and suffering and separately in respect to pecuniary loss.
92	As already mentioned, the plaintiff presents as grossly disabled.  He is on a range of medication.  He has been unable to work and unable to engage in a range of recreational and social activities.  He was not really challenged as to the consequences as set out in his affidavit material.  He is still a relatively young man and the condition has now persisted for approximately seven years.  In those circumstances, it is unnecessary to say any more to demonstrate that the pain and suffering consequences are “very considerable”.
93	In respect to pecuniary loss, the totality of the medical material (really with the exception of Dr Shan) is that the plaintiff is now effectively unemployable.  Having considered the totality of the medical material, I conclude that he is now totally and permanently unfit for any “suitable employment” and, in those circumstances, he satisfies the statutory formula and has demonstrated the requisite loss of 40 per centum or more.
94	Therefore, for the reasons set out, I grant leave to the plaintiff to commence a proceeding for both pain and suffering and pecuniary loss damages.
95	I shall hear from the parties as to the question of costs.