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

Case No. CI-20-04619

MOHAMMAD HUSSAIN	Plaintiff	
		
v		
		
VICTORIAN WORKCOVER AUTHORITY 	Defendant	

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JUDGE:	HIS HONOUR JUDGE O’NEILL	
WHERE HELD:	Melbourne	
DATE OF HEARING:	26 and 27 October 2021	
DATE OF JUDGMENT:	26 November 2021	
CASE MAY BE CITED AS:	Hussain v Victorian WorkCover Authority	
MEDIUM NEUTRAL CITATION:	[2021] VCC 1855		

REASONS FOR JUDGMENT
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Subject:	ACCIDENT COMPENSATION
Catchwords: 	Serious injury application – injury to lower spine arising out of the course of employment as a painter – carrying heavy tins of paint up flights of stairs and looking upwards while standing on a ladder – credibility and reliability of the plaintiff – disentanglement of consequences of physical injury from consequences of non-organic pain syndrome – “without injury” earnings – nature and extent of plaintiff’s current work capacity – pain and suffering and economic loss – whether consequences “very considerable” – whether 40 per cent loss of earning capacity
Legislation Cited:	Accident Compensation Act 1985, s134AB
Judgment:	Leave granted in respect to pain and suffering.  Leave refused in relation to loss of earning capacity damages.
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APPEARANCES:
	Counsel	Solicitors	
For the Plaintiff	Mr R W McGarvie QC with
Ms A Smietanka	Zaparas Lawyers	
			
For the Defendant	Ms A M Magee QC with 
Ms J E Clark	IDP Lawyers	

HIS HONOUR:

Preliminary
1	Mr Mohammad Hussain came to Australia from Afghanistan by boat in 2010.  He spent six months in immigration detention.  He has had only a modest education.
2	He  lived and worked in Perth, Mildura and Griffith, before settling in Melbourne.  His wife and young son joined him from Afghanistan in August 2018.
3	Mr Hussain commenced work for Valley Group Construction Services Pty Ltd (“Valley”) as a painter and labourer.  The work arrangement was somewhat informal, but the Victorian WorkCover Authority (“VWA”) accepts that, for the purpose of this application, Valley was Mr Hussain’s employer.
4	In December 2017, Mr Hussain commenced work at a construction site on Spencer Street, West Melbourne, which was fifteen or so storey’s tall.  His work involved painting.  He was required to carry heavy paint tins and other equipment up many flights of stairs as the lift had broken.  Towards the end of January 2018, he developed lower back pain.  He said the pain became more severe when he was required to stand on a small stepladder to paint the ceiling.  This required him to hold his body in an awkward position for long periods.
5	On 3 February 2018, he went to see his general practitioner, Dr Qasim Hamimi.  The reports of that practitioner record a history that Mr Hussain continued to work after the injury on 30 January 2018 but was unable to return the next day because of low back pain.  Dr Hamimi prescribed pain-relieving and anti-inflammatory medication.  Mr Hussain undertook physiotherapy and hydrotherapy.  A CT scan of February 2018 showed moderate disc bulging at various levels of the lumbar spine, and concluded:
“Degenerative disc and facet changes are seen but there is no convincing evidence of a nerve root impingement.”
6	A later MRI scan of the lumbar spine taken on 29 January 2021 showed multilevel disc desiccation and loss of disc height, but without any large disc protrusion or neural compromise.
7	Throughout 2018 and 2019, Mr Hussain received mostly conservative treatment with chiropractic attendances and physiotherapy.  Because of the ongoing back pain, he became depressed and was referred to a psychiatrist, Dr Geoffrey Hogan, in October 2018, who prescribed antidepressant medication.  Currently, he sees a psychologist, Ms Shagufta Riaz.  
8	Mr Hussain speaks limited English.  According to his affidavit, his capacity to read and write is only basic.  He undertook a course through AMES Australia over about seven months to improve his English-language skills.  He had previously undertaken an English course in 2017.
9	In 2019, over about five months, Mr Hussain undertook and completed a Certificate III in Aged Care, again through AMES Australia.  The classes were from 9.00am to 2.30pm five days a week, although Mr Hussain said he could take a break as needed.  As part of the course, he undertook a placement over twenty days at an aged care home.  According to the affidavit, he said he realised he would be unable to work as a personal care attendant, as the lifting and manoeuvring of aged care patients would cause increased back pain.  He has not resumed any employment since he left work with Valley in January 2018.
10	More recently, he has come under the care of another general practitioner, Dr Marita Carman.  He has continued physiotherapy.  He undertakes hydrotherapy.  He takes strong pain-relieving medication, Tramal, two tablets per day.  He also takes an antidepressant.
11	Presently, he complains of ongoing constant lower back pain, worse in cold weather.  He experiences radiating symptoms down his right leg into the foot.  
12	He has more recently undertaken a further English-language course through the Adult Migrant English Program, with classes three days a week over three months.
13	He says more strenuous activities exacerbate the back pain.  Prolonged driving is difficult and he does not drive for more than thirty to forty minutes.
14	He is limited in what he can do around the house, including the heavier housework and gardening.  His wife assists him with some activities of daily living.  His sleep is poor and he regularly wakes during the night.  He said he is irritable and his concentration is affected.  He socialises less.  He enjoyed camping, but no longer is involved in that activity.  He used to enjoy long driving trips around Victoria, but can no longer do so.
The application
15	This is a serious injury application.  Leave is sought to bring proceedings for both pain and suffering and loss of earning capacity.  The body function said to be lost or impaired is the lower spine.
16	Ms Magee, counsel for the defendant, identified the issues in the application as:
•	The credibility and reliability of the plaintiff’s evidence (“credit”).
•	There was a disentangling exercise in respect of the consequences of the physical injury, and those of a non-organic pain syndrome (“disentanglement”).
•	There was an issue as to Mr Hussain’s “without injury” earning capacity (“‘without injury’ earnings”).
•	The defendant submitted Mr Hussain had not suffered a loss of earning capacity of 40 per cent or more in accordance with the statutory formula (“loss of earnings”).
Credit
17	Ms Magee submitted there were three significant issues raised in the course of cross-examination, as a result of which the Court should be reluctant to accept Mr Hussain as an honest and reliable witness.  Those issues were:
•	Mr Hussain’s evidence was that his level of written and spoken English was only basic, whereas his presentation in Court and, more significantly, an examination of the documents he prepared and presented in order to obtain his Certificate III in Aged Care, showed a far greater understanding and capacity to use the English language.
•	Mr Hussain had a significant pre-injury left knee condition, the severity of which he failed to disclose in full to the Court.
•	He gave evidence that he was prepared to exaggerate, even lie, to doctors in order to obtain Centrelink certificates in respect of that left knee condition.
18	In relation to Mr Hussain’s capabilities to express himself in English, I am of the view there is little in the point.  He gave his evidence largely through an interpreter, although he was invited at one point to answer questions directly in English.  It is clear that notwithstanding the English courses he has undertaken, his capacity to understand and respond in spoken English is very limited.
19	In the course of cross-examination, he was taken in detail to documents obtained from AMES Australia, which he wrote and presented during the aged care course he undertook.  Those documents included a journal which recorded the duties he carried out in the course of the placement, various assessment tasks related to different aspects of the course, oral and written assessments he either gave or was involved in and a PowerPoint presentation.
20	The journal entries are marked with misspelling, corrected for grammar and regularly have annotations in Mr Hussain’s native Farsi language.  Those entries accord with the very simple sentences he was able to use in English in the course of cross-examination.  Further, his evidence was clear and believable that, with many aspects of the course, he had the assistance of a teacher and fellow students.  I accept that, in respect of the oral presentation he made with other students, he wrote it out in Farsi and then had his nephew translate it for him.
21	I am left in little doubt that his capacity to speak, read and write English is only very limited.  His credit is unaffected on the issue.
22	The issues of Mr Hussain’s pre-existing left knee condition, and the certificates he obtained from doctors, can be considered together.  Mr Hussain was cross-examined as to the extent of his pre-injury left knee problems.  It was suggested to him that he had left knee problems going back to 2011.  He said he could not recall, although accepted there was reference in the clinical notes of the general practitioner in 2011 of left knee problems.  He further accepted that from about the middle of 2016 until about the middle of 2017, he was certified from time to time by his general practitioner as being unfit for any work because of the knee.  He was referred to an orthopaedic surgeon on two occasions in 2017.  It was put to Mr Hussain that certification was inconsistent with the history he gave to a doctor of playing sport, including soccer and volleyball, over that period.  He denied giving such a history.  
23	Mr Hussain did refer to taking three or four months off work in his affidavit related to the left knee condition.  To that point, I do not see these issues as significant in assessing Mr Hussain’s credit.  However, in the course of cross-examination, the following exchange occurred (through an interpreter):
Q:	“I want to suggest to you, in your affidavit you have understated your knee problems and minimised them?---
A:	The affidavit is accurate but, you know, sometimes you have to be honest or tell the truth to the doctor in order to get a certificate.
Q:	What do you mean by that?---
A:	My - what I’m referring to is that the times on which I would go to the doctors, my pain wasn’t as much as I would complain.  I basically used it as an excuse in order to get or obtain a medical certificate.
Q:	Your evidence is that you’ve lied to the doctors about the extent of your symptoms so that you could get a medical certificate for CentreLink purposes?---
A:	I’m not saying that I lied.  You know, from beginning to end, the pain would go up and go down.  I can’t recall exactly how I felt at that time but it may have been up, it may have been done (sic) and if I had said that, it may have been - obviously, when you go to the doctor they ask you why are you here, and obviously for me to get that CentreLink, or for me to obtain that certificate, I have to mention my pain.” 
24	While this evidence was a little unclear, I accept Mr Hussain meant that the complaints he made to doctors about knee pain were exaggerated in order to obtain medical certificates to register for social security benefits.  Although he should be commended for being frank, nonetheless, this indicates a person prepared to mislead doctors in order to obtain a benefit from the Government system.  I accept Mr Magee’s submission that this does affect Mr Hussain’s credibility.  It causes me to have reservations about the complaints he makes in this proceeding in relation to his lower back.  That does not mean I reject all of his evidence, but it does make me cautious in accepting the nature and extent of his complaints of pain and restriction related to the low back injury.
Disentanglement 
25	The defendant’s submissions in respect of disentanglement rely upon the acceptance of the opinion of Dr Michael Bloom, occupational physician.  Having examined Mr Hussain in June 2021, he concluded that although Mr Hussain had suffered a soft-tissue strain to the mid lower back in the workplace incident, that strain had now resolved, and to the extent he suffered pain and restriction, it was related to pre-existing degenerative changes.  He said the worker’s perception of pain and disability was highly amplified due to emotional distress.  He said Mr Hussain’s condition had evolved into a chronic pain state which was multifactorial and included adverse psychological factors.
26	He is the only practitioner to conclude that Mr Hussain suffered a non-organic pain syndrome or condition.
27	Dr Hamimi considered Mr Hussain had aggravated an underlying degenerative disc and facet joint in the lumbar spine, giving rise to chronic back pain.  
28	Mr Mohammed Awad, neurosurgeon and spinal surgeon, came to a similar conclusion.  
29	Dr James Rowe, occupational physician, said the workplace injury aggravated underlying lumbar spondylosis, particularly at the L4-5 and L5-S1 levels.  He said, further, there were signs of radiculopathy to the right leg, with wasting of the thigh and calf, and impaired sensation in the foot and ankle.
30	Mr Rodney Simm, orthopaedic surgeon, who examined Mr Hussain on behalf of the defendant, agreed there had been an aggravation of underlying degenerative changes in the lumbar spine, initiated by what he said was a postural strain while painting an overhead ceiling.  He said the severity and chronicity of the symptoms were greater than one would expect from the lumbar spine pathology.  Mr Simm said Mr Hussain had the capacity for various areas of employment; however, he did not suggest there was a non-organic pain syndrome involved.
31	I prefer the opinions of the practitioners, both treating and consultant, who have found that Mr Hussain suffered an aggravation of underlying degenerative changes in the workplace incident.  Dr Bloom is the only practitioner who has come to a contrary view.  There is a strong temporal link between the complaints to his general practitioner of the onset of pain, which was previously asymptomatic, and the workplace injury.  While practitioners vary as to the extent of Mr Hussain’s disability, I am of the view it is organic in nature and arose as a result of an aggravation of the underlying degenerative process.
“Without injury” earnings
32	In the years leading up to the date of his injury, Mr Hussain’s earnings were relatively modest.  In the year commencing 1 July 2017, working for Valley, according to his taxation returns, he earned the sum of $17,840 for the period from 1 July 2017 to 21 February 2018, a total of thirty-three weeks.
33	Over this period, I accept he spent three months overseas without earning income.  Thus, he worked for twenty-one weeks of the year.  This equates to gross weekly earnings of $850, or $44,200 gross per year.  I accept these figures as Mr Hussain’s “without injury” earnings.
Loss of earning capacity
34	I will first refer to the report of the vocational assessor, Recovre, in particular as to the areas of employment, and then the various medical opinions as to Mr Hussain’s present work capacity.  
35	The Recovre report of 3 September 2021 noted Mr Hussain’s Australian work experience, including as a farmhand/fruit picker for a short period, hotel housekeeping, bricklayer’s assistant for seven to eight months, a casual labouring job in a plastics factory and domestic painting work for various employers.  The report noted Mr Hussain had taken and continued to engage in English-language classes to improve his skills.  
36	It suggested various areas of employment which were said to be suitable, including factory process worker, packer (general) and product assembler.  It further noted the work as a meter reader and carpark attendant, although accepted Mr Hussain would need to improve his English-language skills to undertake that work.
37	The report set out the duties involved in those various areas of employment and examined actual advertised jobs, including as a packer, despatch packer and meter reader.  The report also identified the gross weekly salaries available.
38	As to the opinions of the medical practitioners, Dr Hamimi, in his report of 2018, considered Mr Hussain would not be capable of returning to his pre-injury duties unless there was some improvement in his lower back symptoms, and upon return to his duties, there would be restriction in the work he could do.  However, in his final report of October 2021, Dr Hamimi said Mr Hussain was fit for pre-injury employment.
39	The current general practitioner, Dr Carman, considered Mr Hussain was not fit for pre-injury duties, but would be fit for light duties that involved no heavy lifting, nor bending, and providing he could move frequently and was not expected to hold one posture for a significant period of time.  She felt he was likely to improve with appropriate rehabilitation management, including physiotherapy and hydrotherapy.
40	Dr Mohammed Awad examined Mr Hussain in 2019 and again in 2021.  As to work capacity, he said:
“In his current state he does not have the physical capacity to perform his pre-injury employment.  He continues to have theoretical capacity for sedentary work two to three hours a day for up to two to three days per week.  Once again when taken in account his age, education, training, skills, work experience and limited English language and the nature and severity of his lumbar spine condition it is going to be extremely unlikely that he would be able to procure any alternative employment and if he did it would be unlikely that he would be able to carry this out consistently and reliably.”
41	The occupational physician, Dr Rowe, in March 2021, said Mr Hussain was not fit to perform pre-injury duties as a painter.  He set out a range of restrictions on work activities, including:
•	Lifting and carrying
•	Bending and twisting
•	Pushing and pulling
•	Stooping
•	Overhead lifting and overhead use of the arms
•	Prolonged standing and sitting
•	Driving for more than thirty minutes.
42	Dr Rowe said Mr Hussain would be unfit for alternative work of a physical nature and would require sedentary duties within the outlined restrictions.  He said Mr Hussain would need to be retrained, and concluded:
“He is 56 years of age, with limited education and relatively poor English skills for the Australian workplace landscape.  It is likely that given these constraints as well as his physical restrictions, he will have considerable difficulty attaining suitable employment in a competitive job market.”
43	In his first report of April 2019, Mr Simm said that, based upon the subjective complaints of pain, tenderness and restricted movement, Mr Hussain did not have a capacity for pre-injury employment.  He did, however, have the capacity for suitable employment confined to handling light objects between knee and chest height, and where he could sit and stand with some flexibility.
44	In his report of September 2021, Mr Simm was provided with the Recovre report.  In relation to the various areas of suggested employment, Mr Simm said Mr Hussain had the capacity to work as a factory process worker, packer (general), product assembler, meter reader (although would need to improve his English skills) and carpark attendant (again, with improved English-language skills).
45	Dr Bloom, in his report of June 2021, said Mr Hussain did have the capacity for suitable employment, in fact recommended he undertake employment, which he said would improve Mr Hussain’s health and wellbeing.  He suggested a range of restrictions, including:
•	Avoid prolonged static posture, with the ability to change posture frequently.
•	Avoid repetitive bending and twisting whilst under load, but controlled bending and twisting without significant load should not be discouraged.
•	Limit repetitive manual handling to loads of about 8 kilograms, with all manual handling occurring between mid-thigh and chest height and with elbows relatively close to the sides.
•	Avoid climbing ladders or working at heights.
46	He concluded:
“Thus the sort of work that he could undertake would be relatively light, but necessarily low skilled.  The actual types of work that he could undertake would depend upon his capacity to retrain, but because of his educational and work background, as well as his very poor understanding of the English language, finding appropriate work will prove challenging for him.
 …
 From the purely physical perspective, I think it unlikely that any reduced capacity for work relates to the soft tissue strain injury of 3½ years ago. Thus his ongoing reduced state of capacity relates to his age of 56 years and his symptomatic multilevel degenerative disc disease and spondylosis in his low back (symptomatic degenerative dorsopathy).”
47	In a further report of September 2021, Dr Bloom commented on the areas of employment referred to in the Recovre report.  He said three of the occupations referred to would not require any significant English-language skills, but two would.  In relation to factory process work, Dr Bloom said a worksite assessment would be necessary, as some process jobs would be within his capacity, and some would not.
48	The Recovre report identified two packer jobs with a range of duties which Dr Bloom said would be in Mr Hussain’s work capacity.  Dr Bloom said Mr Hussain had the capacity to work as a meter reader, although would need a gradual introduction into the work, and some reconditioning.  He would have the capacity to work as a carpark attendant, although language difficulties may be a barrier.
49	In relation to working as a product assembler, again, Dr Bloom said some roles may be within Mr Hussain’s capacity, and others may not.  A worksite assessment would be required.
50	Dr Bloom concluded:
“The primary barriers relate to his age of 56 years, his lack of transferrable skills, loss of suitable job opportunity, as well as adverse psychosocial/motivational factors.  However, he would not require any further specific restrictions although he would benefit from significant support to get him back into the workplace.  As suggested in my report dated 28 June 2021, if he were supported into suitable paid employment, I have little doubt that his longer-term health and wellbeing would benefit.”
Analysis – loss of earning capacity
51	I accept the opinion of most medical practitioners that Mr Hussain does not have the capacity to return to his pre-injury work.  His previous general practitioner, Dr Hamimi, in his report of 3 October 2021, said he did have that capacity, although it is not at all clear he had examined Mr Hussain of more recent years.  The current general practitioner, Dr Carman, considered he was not fit for pre-injury employment.
52	Although Doctors Awad and Rowe set out a range of restrictions as to the employment Mr Hussain would be able to undertake, both as to the hours he would be capable of working, and the duties he would be able to undertake, neither had the opportunity to examine the areas of employment and the tasks involved as identified in the Recovre report.  Each commented that, by reason of Mr Hussain’s age (fifty-six years), limited education and relatively poor English, he would find it difficult obtaining employment on a consistent and reliable basis; however, it is clear the Act is concerned with capacity for suitable employment rather than availability of jobs.
53	Mr Simm’s opinion was that Mr Hussain had the capacity for a range of more sedentary duties, involving lifting and handling restrictions, including as to a number of areas identified by Recovre.
54	Even although Dr Bloom was of the view Mr Hussain was suffering from a non-organic pain state, he analysed in depth the various areas of employment identified by Recovre and the tasks involved.  I found that analysis helpful in determining Mr Hussain’s work capacity.
55	Of significance, in my view, are the opinions of the general practitioners, Dr Hamimi and Dr Carman, each of whom have treated Mr Hussain over a considerable period and each of whom are of the view that Mr Hussain has the capacity for employment.  Dr Carman, who has been treating Mr Hussain for several years, said that he would be fit for activities involving light duties with no heavy lifting or bending and providing he had the capacity to move frequently and adopt different postures.
56	I further bear in mind that the radiology does not disclose any significant disc damage, although I accept that his workplace duties aggravated an underlying degenerative process at the L4-5 and L5-S1 levels.  There is no suggestion that he ought consider any surgical intervention.  Mr Hussain has not been under the care of any orthopaedic or like specialist.  I also bear in mind that he had the drive, ambition and capacity to undertake and complete the Certificate in Aged Care.  I was impressed by the fact that with assistance, he was able to complete assignments, make presentations to his class and undertake a practical placement.  Further, for the reasons stated, I have some reservations in accepting all of his complaints of pain and restriction which would otherwise limit his capacity to undertake work duties.
57	In relation to the areas of employment suggested in the Recovre report, while Mr Hussain may have the capacity to work as a meter reader or car park attendant, a significant barrier to work in this area relate to his language difficulties and limited work experience.  Thus neither job is suitable.
58	In relation to factory process work, I accept the opinion of Dr Bloom that it would be necessary for there to be a worksite assessment to determine whether Mr Hussain has the capacity to undertake the duties involved.  In my experience, factory process work usually involves the sorts of physical demands that would be beyond a person with his lower back condition.  Likewise, work as a product assembler.
59	However, I am of the view Mr Hussain has the capacity to work as a packer, or despatch packer.  Dr Bloom considered actual employment positions presented in the Recovre report and said with the lifting involved, the ability to change tasks frequently and limited walking, the physical demands of the work as a packer in that area of employment were well within his capacity.  Likewise, the employment identified as a despatch packer.
60	Mr Simm also had the opportunity to consider the area of listed occupations and said Mr Hussain had the capacity to work as a packer and despatch packer.
61	I bear in mind the definition of “suitable employment” requires a consideration of, amongst other things, Mr Hussain’s age, education, skills and work experience.  Given the endeavour he has shown in respect of his aged care qualification, the range of unskilled employment he has undertaken in the past and the reservations I have about his complaints of pain and restriction, I am of the view he has the capacity to work on a full-time basis as a packer or despatch packer in the areas identified.
62	In those circumstances, I am not satisfied he has discharged his onus to prove that, as a result of injury, he has suffered a 40 per cent loss of earning capacity.
Conclusions
63	The area of real contest in this application is in relation to loss of work capacity, rather than as to pain and suffering.
64	I am satisfied Mr Hussain has suffered an aggravation of underlying degenerative changes in his lower spine.  This has required conservative treatment over a considerable period, and relatively strong pain-relieving medication.
65	While I have reservations about Mr Hussain’s complaints of pain and restriction, those in the best position to assess the impact of his lower back injury upon his domestic, recreational and related activities are his general practitioners, each of whom speak of ongoing chronic back pain and the requirement for ongoing conservative treatment.
66	In those circumstances, I am satisfied that the consequences of the lower back injury meet the “very considerable” test the Act requires.
67	I will grant leave to bring proceedings in respect of pain and suffering.  That part of the application which seeks leave in respect of loss of earning capacity is refused.
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