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

Case No.  CI-21-00761

ROBERT McLEAN TITCHER	Plaintiff	
		
v		
		
VICTORIAN WORKCOVER AUTHORITY	Defendant	

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JUDGE:	HER HONOUR JUDGE K L BOURKE	
WHERE HELD:	Melbourne	
DATE OF HEARING:	12 and 13 October 2021	
DATE OF JUDGMENT:	31 January 2022	
CASE MAY BE CITED AS:	Titcher v Victorian WorkCover Authority	
MEDIUM NEUTRAL CITATION:	[2022] VCC 42		

REASONS FOR JUDGMENT
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Subject:	ACCIDENT COMPENSATION
Catchwords: 	Damages – serious injury – injury to spine – pain and suffering – loss of earning capacity – causation
Legislation Cited:	Accident Compensation Act 1985, s134AB(16)(b), s134AB(37) and (38)
Cases Cited:	Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz (2012) 34 VR 309; Rowe v Transport Accident Commission [2017] VSCA 377; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Dordev v Cowan & Ors [2006] VSCA 254; Ansett Australia Ltd v Taylor [2006] VSCA 171; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Peak Engineering & Anor v McKenzie [2014] VSCA 67
Judgment:	Applications dismissed.
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APPEARANCES:
	Counsel	Solicitors	
For the Plaintiff	Mr P J Hayes QC with
Ms J Frederico	Henry Carus & Associates	
			
For the Defendant	Ms G J Cooper	Wisewould Mahony	

HER HONOUR:

1	This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff during the course of his employment with Victoria Police (“the employer”) on 5 November 2012 (“the said date”).
2	The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity.  These discrete heads of damage require the application of different statutory tests, as mandated by s134AB(37) and (38) of the Act.
3	The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act.  There, “serious injury” is defined relevantly as meaning:
“(a)	permanent serious impairment or loss of a body function.”
4	The body function relied upon in this application is the spine.
5	Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.
6	The impairment of the body function must be permanent.
7	The plaintiff bears an overall burden of proof upon the balance of probabilities.
8	By ss(38)(c) of the Act, the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant or marked”.
9	I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury.  Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
10	In this application, where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of 40 per cent or more, both at the date of hearing and permanently thereafter.
11	Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured.
12	Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the 40 per cent loss has been established.
13	Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
14	I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak and AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz in reaching my conclusions.
15	The plaintiff relied upon two affidavits and gave viva voce evidence.  He also relied on an affidavit sworn by his sister, Dianne Pagiluca, on 11 October 2021.  In addition, both parties relied on medical reports and other material which was tendered in evidence.  I have read all the tendered material.  
16	On the plaintiff’s behalf, it was submitted the plaintiff’s back condition became progressively worse, with a flare up in 2017, and the consequences thereof are “serious” as at the date of hearing, stopping him from working.  
17	The defendant did not dispute the plaintiff had had some ongoing back symptoms since May 2017, but it was submitted they are entirely unrelated to the incident and are simply the result of ongoing degenerative change, which was aggravated or exacerbated by a coughing fit in May 2017.  Further, medical examiners who thought the incident continued to contribute to the plaintiff’s lumbar condition had the wrong history.  “Seriousness” was also in issue.  
The Plaintiff’s evidence
18	The plaintiff is fifty-three, having been born in July 1968.  He married in 2010 and divorced in 2018.  He and his former wife share custody of their daughter, Vivien, aged ten.  
19	He completed Year 12.  He worked at various times in his father’s pharmacy while at school and thereafter.
20	Before joining the employer, he worked in a variety of jobs including knife hand at an abattoir, bank teller, supermarket filler, accounts manager at a security fencing firm, storeman and packer for a signwriting firm, franchise owner of a courier business and a storeman at a beauty products firm for about fourteen months.  He also worked as a real estate agent.
21	He has an Advanced Diploma of Business Studies and Marketing from Chisholm.  He finished the first semester of a Business and Commerce Degree at Monash University, Frankston; however, he had the chance to join the employer just before the start of second semester.  As he had always wanted to be a police member and had applied on two previous occasions, he embraced the chance and presented himself.  
22	The plaintiff had not sustained any significant injuries or had any significant low back problems before joining the employer.  He had had some periods of stiffness and tightness in his lower back, usually after a heavy day at work.  He had not had any specific treatment for these symptoms, and they routinely resolved after a short time.  He was concerned about the wear and tear on his back in the courier business.  He may have had an earlier back scan in 2002, after he had ridden a dirt bike, but he could not really remember much about it.
23	The plaintiff was sworn in on 22 October 2005 and employed as a Musician Constable Highland Piper with the Victoria Police Pipe Band (“the Band”).  He was employed via a lateral entry as a sworn non-operational officer and did not have to do the usual training at the Police Academy.
24	The Band played at a variety of venues and most of the time were required to transport and set up their own instruments and sound equipment which were transported in a Toyota HiAce van.
25	On the said date, when the Band was playing at an aged care facility, the plaintiff was manoeuvring a box weighing about 40 kilograms, by himself, to the lip of the ramp of the van.  There was limited room inside the van, and as he lifted the cable box, he felt a pinching pain in his low back (“the incident”).  
26	He could feel an unusual pain during the Band’s performance but continued.  The pain worsened, but he hoped with rest that evening the symptoms would resolve.  However, unfortunately, the pain was worse the following day, radiating into his left leg.  He reported the injury and was placed on light duties, which meant he could not assist with loading and unloading the van.  He hoped his low back pain would resolve.
27	After about six weeks, as there had been no improvement, he attended his general practitioner, who prescribed pain medication and referred him for physiotherapy and a lumbar CT scan.
28	The severity of his low back symptoms lessened to some extent, but over the next couple of years, he continued to experience an underlying level of pain with intermittent flareups of severe pain when he put strain or pressure on his lumbar spine.  He managed the pain as best he could with exercise, like swimming, walking, rest and over-the-counter medication.
29	After the incident, he continued to play in the Band, which performed about three hundred times.  His time spent practising was probably down to about an hour; he could not remember. 
30	In early 2014, the Band was disbanded, and the plaintiff was moved to Mill Park Police Station as a property officer doing administration work.  He was basically filling in time and washing cars and vans, getting the same pay.  He worked there full time until November in an administration role with a bit of data entry, putting the briefs in filing cabinets and also in operational police members’ lockers.  He also went on a drug raid.  
31	Although not doing police duties, his police status remained unchanged, remaining a Level 7 Senior Constable through the Enterprise Bargaining Agreement.  
32	In November that year, he was told by his superiors that those duties were no longer available to him, and he had to retrain and become an operational member or retire.
33	He was aware, due to his lower back symptoms, that he would not be able to do the training required to join.  He also had significant doubts as to whether he would be capable of working as a functional and reliable police member due to those symptoms.  As a result, he agreed to take a career transition package and retired, formally doing so on 1 November 2014.
34	Although he retired from the employer on mental health grounds, he had given consideration to being an active officer, but believed he would not be physically fit to perform active service due to his back injury, being aware of the physical demands of the role.  When he was working at Mill Park as a property officer, he saw police subduing a fight in the cells.  He had applied to be a policeman twice before he joined the Band and he was aware of the physical demands, being involved in physical confrontations and making arrests. 
35	For the next couple of years, he continued to experience ongoing pain and restriction in his low back, but did his best to manage with exercise and medication.  At times, he would experience episodes of aggravated low back pain and also experienced sciatic pain in his left leg.  For example in September 2015, he had intense pain in his left calf and required an ultrasound as he thought he had torn the muscle.  It was later determined this was in fact sciatic pain coming from his lumbar spine.
36	In October 2017, he had a further flareup of low back pain going into his left calf.  He had a CT scan which he believed showed his back injury was getting progressively worse.  He then became concerned as he always felt, although his lower back symptoms were constantly present, he was capable of managing them.  It then became clear to him that those lower back symptoms were gradually deteriorating, and that the incident injury was quite serious.
Cross-examination
37	The plaintiff was cross-examined at length about the progress of his back condition after the incident and treatment in relation thereto.
38	Following a trip to China at the end of 2012, he was sent an email by the employer on 4 January 2013, following up on his recent injury and to see how he was recovering responding to treatment.  He replied:
 “Hi Liz,
I just got back from Beijing, China yesterday, (away for 8.5 weeks!!!), my back went very well.  I was picking up my 2 y.o daughter everyday and she weighs approx 12kg, and I had no back pain at all.  My doctor recommends building my inner core through regular low impact exercise and this should make my body stronger, but correct lifting procedures must be done always,
Anyway all ok so far,
Thankyou.
Close file.”
(sic)
39	He agreed, from February 2013 when he came back from China, and October 2014 when he took a package, he had not had any back problems.  He was feeling very good and having no back pain at all at that time.  He continued to work full time with the Band from February to September 2013 and did not see his doctor once in that time for back pain while attending for other matters.  On 14 August that year, he made no mention of his lower back when complaining he was not coping at work – with bullying and verbal snipes, being on carer’s leave at that time. 
40	He also attended a psychologist, Bruce Newport (“Bruce”), in September 2013.  He did not tell him anything about his back but complained about bullying at work and marital problems.
41	He found it very upsetting when the Band was being disbanded.  The Band last performed on 20 December 2013.  He really loved playing in the Band, and he was so affected, Kevin Oakley from Police Welfare contacted him to see how he was after the announcement.  They discussed work issues and bullying.   He did not tell “people” anything about his back.
42	Working at Mill Park from March 2014, he did not attend his general practitioner complaining of back pain.  
43	He again became involved with Police Welfare in September 2014, with concerns of family violence by his wife against him and his daughter.  He declined any further assistance from the Force at that time.  
44	In October 2014, he was told the property officer duties were no longer available.  When he saw his general practitioner on 22 October 2014, he told him he had no desire to live, given that change in his work situation.  He did not mention lower back pain.  
45	He started to see Bruce again in November 2014.  He told Bruce he decided to take a package rather than take on an operational police role.  He then also told Bruce he was not sleeping; it was very stressful.  This was to do with the difficulties associated with work, not his back.  He did not mention his back to Bruce.
46	The plaintiff was told he could take an operational position or be made redundant.  He was concerned if he took an offer of an unsworn band member that he would not be able to get the redundancy – the career transition incentive package.  It was the safer option to take the redundancy and be proactive.  He took it and applied for an ESSS Disability Pension (“the pension”) on the basis of his psychiatric condition, in particular depression.  
47	In his Disability Benefit Claim Form, he mentioned stress, overload and distress.  He gave authority to release information pertaining to his stress and anxiety.  He agreed he did not mention lower back pain in this form.  He would not have told anyone about it because “I had already gone past that.  I was already way past that.”  He thought he was better off dead.  His back was still playing up from time to time, but he did not see a doctor.  He did not report it.  He remembered being in China and getting patches for his back and remembered his ex-wife massaging his back at times, but he always thought it would get better.
48	His back fitted in to his decision to leave the employer, because he tried out for the Force a couple of times and saw a fight in the cells and knew how physical the job was.  He knew he could not physically do it, but he had gone past the physical side, he had already been “sort of been planning [his] suicide”.  
49	He was unsuccessful when he first applied for the Force.  He tried again in 1995 and was successful.  His application was valid for about twelve or eighteen months and then it lapsed, and he did not try again.  He believed he was a storeman at the time and then started his own business and “concentrated on other things”.
50	In response to a suggestion that his affidavit evidence that due to lower back symptoms he would not be capable of completing the operational training was very misleading, he agreed his affidavit made no mention of his psychiatric state then, but he “knew [his] back would not do it, but psychologically [he] was not in a good space as well”.  
51	Not taking the operational role did have something to do with his back, but at the time, his psychological state took over.  He knew he would not be able to do it, but he was “psychologically past that”.  His back was a consideration, but he was already past that in his thought process.  He denied he deliberately exaggerated the role his back played because he always knew the demands of the job, stressing he “had gone past that psychologically”.  He apologised for not mentioning this in his first affidavit.
52	When examined for the pension, he did not tell Dr Nicole Phillips about a lower back injury, lower back pain, because she was not interested.  When seen by Dr Mary Power-Connon, he did not tell her anything about ongoing lower back pain.  He was not concerned with his back.  He only had lower back pain just now and again, just intermittently, and it was not really bad.  He then said he could not remember if he did mention it to her.  
53	Dr Power-Connon noted that the plaintiff knew he did not get into the Force due to his record of suicidal ideation and family violence.  He agreed he told her he had resigned on 21 October 2014 and went to China for a pre-planned holiday.  He did not tell her anything about his lower back condition affecting that decision, but it did play a part – he “was past that”.  
54	He agreed that in late December 2014, he wanted to get back to work, but was afraid of not being able to present himself due to his psychological condition, as Bruce reported.  He agreed he did not mention his lower back at all to Bruce. 
55	In March 2015, he was applying for lots of jobs, but not in the State government, because he could not work there for three years.  He was then not reporting any back pain to Bruce.
56	He told Bruce that he was having sleep problems caused by stress, although he deposed these problems related to his back.  He had some difficulty sleeping when things were bad at home but generally, his back was not causing him a problem with his sleep prior to 2017, it was stress.  
57	Between early 2013 and mid-2015, he would say he had the occasional minor flare up, where his wife would massage or put on patches, but it was not too bad, it was manageable, and he managed it as best he could.  It was unpredictable and still is.  It would flare up, but not daily pain, and he had pain-free days. 
58	Working in a paper factory in September 2015, his left calf started playing up by just standing around and then packing some orders.  He was not doing anything heavy.  He thought he had torn a muscle.  His general practitioner organised a scan and prescribed Mobic.  He agreed that was the first time he had complained of lower back pain since December 2012.  
59	He agreed that from the left calf incident in September 2015 until May 2017, he did not see any general practitioner in relation to his lower back.  
60	He agreed he told Dr Phillips on re-examination in October 2015 that he had hurt his back at work five years earlier and that he had an episode of back pain in 2015 which seemed to have settled.  He also told her he had applied for about three-hundred-and-fifty administration jobs and also warehousing work and was unsuccessful with a number of jobs.  
61	When seen by medico-legal psychiatrist, Dr Smith, at the end of 2015, the plaintiff agreed he told him “there was no history of ongoing pain and no history of treatment with analgesic medication”.
62	From the end of 2016, he did not complain about back pain to Bruce until a coughing episode in May 2017, when Tramal was prescribed.  His back pain “grumbled along” after that.  He decided to make a WorkCover claim in early November 2017.  
Consequences 
Pain 
63	As at 22 October 2020, the plaintiff continued to experience constant pain of varying degrees in his low back, which was especially bad and unpredictable when he had a bad flareup.  At times, the pain radiated into his left calf to his foot.  His low back pain was often worse in the mornings when he was stiff and tight.  His pain was a low, dull ache, always present to some degree.  He also sometimes had a sharp, shooting pain running down into his left leg and calf.  He was always conscious of low back pain and had to modify daily activities to avoid placing pressure on his lower back.  
64	He often experienced increased pain if he was sitting continuously for more than about 20 minutes, particularly on an uncomfortable chair.  He had to try and alleviate the pain by changing positions.  That affected how long he could drive.  He could usually drive for about 45 minutes on a highway without having to take a break; however, it was more difficult on bumpy or unsealed roads.
65	His low back pain was relieved by walking and staying as mobile and active as possible.  He tried to walk each day to reduce the stiffness and restriction.  On days when his pain was aggravated, he rested in bed and took anti-inflammatories until he felt better to exercise again.  He tried to force himself to persevere for his fitness and wellbeing.
66	He now suffers from constant low back pain and is never without it, as has been the situation since the incident.  He cannot remember one day that he has not been without pain since then.  It varies in intensity from a low grade, which is aggravated by activity, and increases to moderate and severe pain, depending on what he does.  At times since his injury, he has been hopeful that his back pain would improve and perhaps he would get better, especially in periods where the pain had been low grade; however, when he has thought this, it has then flared up again.
67	His pain increases with activity and is worse in the morning, then improves during the day, and by the end of the day when he is tired, his pain increases.  He has to be careful to cough or sneeze while standing.  
68	The pain is located in the centre of his low back, about the belt line, radiating down his left leg and calf at times.  It is a deep aching pain like a pair of pliers squeezing him deep within the lower back, centralised in the middle, and when the pain increases it becomes almost too painful to bear.  Apart from walking and riding his bike to manage his pain, he has a lie down each day to ease his pain.
69	He presently rides his electric bike 20 to 50 kilometres every second day which improves his calf pain.  He also walks 1 to 4 kilometres every second day.
70	While he deposed that he had had pain every day since the injury, he denied deliberately exaggerating his situation, having also agreed he had had many pain-free days.  He just thought it would get better, but since 2017, it really had got worse.
71	When he gets a flare up of lower back pain, it is 4 out of 10 and the sciatica is 2 to 3 out of 10.  It is never as bad as it was in 2015 at the paper job.  When it gets to those levels, he takes Ibuprofen and lies down.  
72	He agreed that he had not told any doctor he had a lie down every day to manage his pain.  When it was suggested that it was a gross exaggeration, he could not get out of bed a couple of days a week because of his back and his mental state as he told Dr Slesenger, he said it was more or less because he was worried about his daughter with family violence and other times, his back plays up.  The pain gets him down as well and does his head in: “I just get days where I’m down, I can’t explain it.”  He had not told any recent psychiatric medico-legal examiners about this situation.
73	He still has bad days.  The back pain will not go away and sometimes it really gets on top of him.  He believes his condition is getting worse and he would like to get rescanned.  Dr Chan’s partner, Dr Thui, spoke to him about “scraping down [his] back”.
74	Having been cross-examined for nearly three hours, he felt fine – “The pain’s still there, it has not gotten any worse but I still feel ‘floaty,’ because of the Ibuprofen.”  He did not know how he would feel tomorrow.  
Sleep 
75	Prior to his back injury, he rarely had trouble sleeping, but now frequently experienced disturbed sleep due to pain and discomfort in his low back.  That situation left him feeling drowsy, irritable and unable to concentrate the next day.
Tolerances 
76	He struggles to sit and stand for long periods of time, bend over on a repetitive basis or lift heavy weights.  He is limited in how far he can drive and manages forty-five minutes to an hour.  He has adjusted his life to accommodate his back pain.  He paces himself with housework, avoiding more difficult tasks.
77	He had been leaning on the table with both arms supporting his body throughout the hearing.  His sitting tolerance is twenty minutes to half-an-hour.  He disputed he could do an administration job where he could move around as he needed to, because even when the hearing started, he was in pain, he was walking around, and if it was not for the Ibuprofen, he did not know how he was going to pull up tomorrow.  At the end of re-examination, he asked if he could have a walk.
Activities
Bagpipes
78	Prior to his low back injury, he had a passion for playing the bagpipes, having begun playing at about fourteen.  When he was about ten, he started playing the piano, which he did for a few years.
79	He gradually improved and began to compete in both national and international bag pipe competitions, including Grade 1 in the World Pipe Band Championships in Glasgow.  Playing music was part of his identity and he found meaning and self-worth in the music he played and enjoyed being part of the Band.
80	To play the bagpipes, you need to be physically fit and stand for prolonged periods and carry the pipes.   As a result of his low back injury, he now avoided playing as it aggravated his low back pain.
81	Since December 2013, he had tried about four times to play the bagpipes and each time, he could only play for a short time as his low back pain and left leg pain became too difficult to tolerate.  Standing in a sustained position for a prolonged period placed pressure on his back and the weight of the bagpipes on his left shoulder caused pain.  This situation saddened him as it was something he wanted to share with Vivien as he got older, and he felt like a piece of him had been lost and his passion had been destroyed and he missed it terribly.
82	In his October 2021 affidavit, he gave more details about his passion playing the bagpipes which he had turned into a career.
83	Prior to the injury, he used to practise three to four hours a day, but now does next to no practise.  Although they are not particularly heavy, standing with the bagpipes aggravates his back pain.  The bagpipes are difficult to play, because you have to play the right notes while blowing and squeezing to keep the air flowing at the right amount – standing up and concentrating.  It is among the hardest instruments to play and he was proud of his skill and achievement.
84	He played with the Williamstown Band from 2008 to 2012, but stopped because of family commitments in terms of time, but it was his intention to return to playing in a band when Vivien became older.
85	Over the years, he had played in many bands.  Although he would not be able to play in the Band as it was disbanded, he believed he would have gone back to a band, but would not be able to do so now as a result of his back injury as he could not cope with the rehearsals and performances.
86	He would have loved to have gone back to play in the World Pipe Band Championships, having played from 2005 to 2008 at a high standard.  He was with the Band Club Sydney which came fourteenth in the world at Grade 1 of 200 bands.  He believed he could have played Grade 2 or 3 for any band in the world, but his level of competence is now severely diminished as a result of his back injury.
87	He had not been able to continue playing bagpipes save for the odd time he played, like at the windows of his mother’s nursing home and on ANZAC Day at Vivien’s school.  Prior to his injury, he regularly was paid cash to play at weddings and funerals.
88	At one stage, he worked at Crozier Drone Reeds because he was so passionate about bagpipes, and he was involved in every level of playing.  On one occasion, he re-pitched the Band Club Sydney at Scotland for the World Pipe Band Championships because he also had expertise in reeds.
89	Bagpipes were his life and when he obtained the job with the Band, he told his mother he felt like one of the luckiest men alive because he was able to turn his hobby and passion into a profession.  He is devastated he is not able to play the bagpipes as he used to, and he is not able to practise.  He has lost his ability to play many of the tunes, and his dexterity and high level of skill is diminished, having hoped one day to teach Vivien the bagpipes which he will no longer be able to do.
90	He feels as though he has lost part of himself and has lost his identity and the respect and admiration others had for his skills.  He was only one of eleven bagpipe players in Australia who were sworn police officers.
91	The plaintiff agreed, as Bruce noted on 4 March 2015, that he played the bagpipes for a $250 booking fee and that he then wanted to renovate his pipes.  After the Band finished, he thought he was maybe doing two to three private performances a year.  
92	While Bruce noted on 13 May 2015 that the plaintiff had done about six piper jobs – more than the four since December 2013 that he had deposed to, he was not overstating the extent of his incapacity.   His affidavit was probably a mistake; it would be four times since 2017.
93	When told Bruce mentioned the plaintiff played the bagpipes on ANZAC Day 2019, he agreed there was a significant improvement in his back between 2017 and 2019.  It was sore for about six months, excruciating for three days, and in the last couple of months it had settled down to a fairly low level where he could play, but it hurt.  At times, he can now play for a little while and played for his mother last week.  He would have a problem standing to play in a band.  
Handyman
94	Pre-injury, he was a bit of handyman.  He did some landscaping and also built a pergola with assistance, and he installed handrails.  Post-injury, although he has wanted to do some handyman work, he has not been able to.  He had done a small amount of painting at his mother’s house before she went into a home.
95	He deposed to being a handyman but not doing jobs since the injury “[b]ecause sometimes when my back is running well I feel comfortable, but other times when it plays up, I can’t”.  He did not know why he did not put that in the affidavit.  He “was sorry” that his affidavit was “ambiguous”.  He would not class himself as a handyman and he could never make a living as one, so what he did at home, he did to the best of his ability, but when the things were beyond him, it would be due to his back pain.
96	As at May 2015, he had done some home renovations as Bruce reported – put in some handrails and stained some decking.  He built a little cupboard for Vivien’s room in late 2015.  He and his wife built a retaining wall around a little garden.  He was planning to dig a cellar.  He was helping with handyman work and gardening at Vivien’s childcare.  He did not tell Bruce he had any concern with these activities because of his back.  He built a pergola after his injury. 
97	He agreed that in November 2016, he cleaned all the windows and screens at his mother’s house.  With a neighbour, he trimmed tree branches which were hanging on a fence and fixed the fence.
Golf 
98	He had previously enjoyed playing social golf with his brothers and several friends quite a few times a year.  Now, as a result of his low back pain and restriction, he avoided playing golf as the swinging and twisting motion required to hit the ball aggravated his low back pain.  He missed the sport and social interaction.
99	He has not played golf since 2010, but it was one of the things he wanted to do in the future.  
Socialising 
100	He tried to keep socialising as it improved his mental health and he also wanted Vivien to have a good relationship with her family; however, as a result of his low back pain, he was restricted in the places he could go and the activities he could do.  He felt most comfortable socialising at home with people who understood his low back condition.
Domestic tasks 
101	As a result of his low back injury, he had difficulty with bending, leaning and flexibility, which aggravated his low back pain.  Prior to his back injury, he did most of the cleaning, gardening and cooking, but was now limited in the domestic chores he could do.  He still tried to cook when looking after Vivien, but often needed breaks to rest his back.  When he was alone, he often opted for takeaway.
102	He had to pace himself through domestic chores, and tasks like vacuuming and mopping could sometimes be difficult if his low back pain was aggravated.  He often avoided heavier household tasks and did not change the bed linen frequently, sometimes leaving it for six to eight weeks as the movements involved aggravated his low back pain.  He found the changes in his life very frustrating.
103	Having been taken to Bruce’s 2013 entry that the plaintiff’s wife did all the cooking, the plaintiff agreed that he did not actually do all the cooking before his injury – his job was to cook the rice.  He now enjoys cooking and cooks for himself and Vivien when she comes around.
Family 
104	Vivien, who is now ten, spends 39 per cent of her time with him.  He shares custody with his ex-wife.  He wanted to be involved in Vivien’s life, and care for her, and wanted her to be proud of him.  He had difficulty running with her in the park, as that aggravated his low back pain.  He could not be as active a father as he would like to be, and this situation saddened him greatly.  He now struggles to play and engage with her.  He avoids sitting on the floor to play boardgames and struggled to get back up.  
105	His injuries also played a part in causing the deterioration of his relationship with his ex-wife.  Because of back pain, their sex life was never the same, which in turn caused relationship problems.  He was concerned that would be an issue in the future with other partners. 
106	While he blamed his back for his relationship issues, he agreed he had not reported this to any examiner.  He split up with his wife in 2015.  
Mental state
107	At times, he continued to struggle mentally and emotionally with his incapacity.   He was very stressed about the future in terms of his health.  He felt his condition was gradually deteriorating and that left him feeling helpless, depressed and worried about the pain as he got older.  He was easily frustrated, and he had changed from being a very balanced and reserved person before to now being frustrated and angry.
Treatment 
108	As at October 2020, he tried to avoid taking too much medication as it upset his stomach and left him feeling drowsy and he did not want to become dependent on it.
109	Most mornings, he did exercises at home to strengthen his back and core.  He took Ibuprofen to manage more severe outbreaks of low back pain.  Panadol Osteo was ineffective for pain relief and he was allergic to codeine.  At times of severe pain, he had physiotherapy and he continued to see Dr Chan monthly.
110	He continued to experience significant pain and incapacity in his lower back which he believed he would do so for the rest of his life, and he felt much of his time was consumed by managing his low back symptoms.
111	He now takes Ibuprofen for back pain, although he tries to avoid it.  He has to take it when his pain increases.  Ibuprofen interferes with his ability to concentrate and makes him feel a bit floaty.  From 14 October to 8 June 2021, he went through a packet of fifty tablets, and from July 2021 to today, he had taken twenty-eight tablets.  At times, he thinks he is taking two a day for about three or four days and then he might go five or six weeks without taking any.
112	It was true, as Dr Chan noted in October 2017, that the history was back pain which started in 2012 and he had had recurrent back pain since then.  He sees Dr Chan three monthly for WorkCover certificates.  
113	He takes hot showers to relieve back pain and continues to use a hot water bottle.   He does home-based exercises three to four times a week as shown to him by his physiotherapist, and he tries to do light squats during the day.
114	When he now suffers an increase in back pain, he tries to go for a walk, which can sometimes ease the tightness and tension in his back.  He has bought an electric bike and has found cycling helps ease his back pain, so he tries to cycle regularly.
115	He walked every day for 4 kilometres.  Riding the bike also helps with problems he has with his left knee.  
Income
116	He lives on a combination of the pension and WorkCover payments.  He receives about $32,000 from his pension and about $31,000 from WorkCover.  If he did not get the pension, he would probably get more WorkCover payments.  While the pension is current, he still has to get further reviews.
117	He obtained the pension in 2015 due to his psychological condition at that time.  He was then suicidal and diagnosed with depression.  From around 2006 to 2010, he had had a few instances of bullying.  He was able to cope with this fine and did not seek any counselling.  From about 2011 to 2013, he was less tolerant of the bullying and unable to cope with it and was referred to a psychologist through Victoria Police Welfare.  He was also treated by Bruce for a number of years.  He was upset the Band was disbanded, and he also suffered psychologically after Vivien’s birth.
118	He does not have to provide medical certificates to get the pension and has not recently been medically examined by the fund.  He does not take any medication for his psychological condition, but sees a counsellor every couple of months.
119	His divorce and the break-up with his ex-wife, including issues regarding custody of Vivien and allegations made against him, were very distressing for him at the time and affected his mental health.  Those matters are now relatively settled.
Work
120	He had been unable to return to work after November 2014.  He had applied for various roles without success.  He had an induction at a paper factory in about September 2015 but, unfortunately, as a result of his low back injury, he was not able to cope with the physical demands of the job.
121	Due to his low back injury and its consequences, he did not think he could return to manual work involving reaching, twisting, bending, lifting, carrying or repetitive movements.  He did not think he could do any job that required prolonged standing, sitting, walking or walking on uneven ground.  His medication and his intermittent sleeping patterns would also give him difficulties with concentration, memory and remaining alert.
122	In the financial year ending 30 June 2014, as a Senior Musician Senior Constable, he earned about $68,294 gross, which he believed was an accurate reflection of his earning capacity.  Since the injury, his earning capacity had greatly decreased due to his injuries and its consequences.  
123	Had he not suffered injury to his low back, he would have kept working and his earnings would have steadily increased.  He now had grave concerns about his occupational future and believed he had suffered a significant reduction in his earning capacity.
124	He has done a bit of voluntary work at Vivien’s school, but has not worked in paid employment since 2015.  He continued working after his injury, but was unofficially, and then officially, on light duties.  Initially, his colleagues helped him out doing much of the unloading of the equipment from the van.
125	He has not applied for any jobs since February 2017.  He believed the pension had a lot to do with it, it took a lot of pressure off him but his wife did encourage him to keep applying as there was always an option with the ESSS that he could still earn.  He got a temporary pension in early 2015 which was ratified later that year.   
126	He did not believe he would be able to perform the roles identified in the 2019 Vocational report – despatching and receiving clerk, forklift driver, delivery driver, accounts clerk, customer services representative and telemarketer – due to his back injury.
127	He also thought he would be unable to perform the jobs suggested by Amy Williams in August 2021 – customer service consultant, property manager, sales co‑ordinator, salesperson and pathology courier.  He did not believe he would be able to perform any role on a full-time, constant and reliable basis.
128	He had actually applied for lots of administrative roles up until 2017 as the vocational report set out.  He agreed he had basic computer skills and he had done administrative work at Mill Park.  He did not think he could get his computer skills up to scratch because he could not sit through a course.  
Plaintiff’s taxation returns
Year	Employer	Gross Income	
30 June 2010	Victoria Police (“VP”)	$56,090	
30 June 2011	VP	$62,591	
30 June 2012	VP	$63,858	
30 June 2013	VP	$66,270	
30 June 2014	VP	$68,294	
1 November 2014	Redundancy from VP, plaintiff has not worked or earned any other income from personal exertion since		
30 June 2015	VP – employment prior to redundancy and Workers’ compensation and Emergency Services and State Super(‘ESSS’) pension	$40,446	
30 June 2016	VP- Workers’ Compensation and ESSS pension	$31,792	
30 June 2017	VP- Workers’ Compensation and ESSS pension	$30,960	
30 June 2018	VP- Workers’ Compensation and ESSS pension	$47,721	
30 June 2019	VP- Workers’ Compensation and ESSS pension	$65,579	
30 June 2020	ESSS pension (query workers’ comp?)	$29,916	
30 June 2021	VP- Workers’ Compensation and ESSS pension	$81,621	
Lay evidence 
129	The plaintiff’s sister, Dianne Pagiluca, swore an affidavit on 11 October 2021.  She confirmed the various back problems the plaintiff deposed to – difficulties with prolonged sitting, interacting with Vivien and also playing the bagpipes.  
The Plaintiff’s treaters 
130	Pius Ngan, physiotherapist at Summerhill Medical Centre, wrote to Dr Chan on 9 January 2018, having first seen the plaintiff that day.  Pius Ngan noted the plaintiff had also seen Mr Bruce Love, orthopaedic surgeon, who arranged for him to have physiotherapy via a WorkCover review.  
131	The plaintiff had not received physiotherapy for his back previously and was then taking Celebrex, and noted some improvement.  He had intermittent tightness and pain in the central lower back area and very occasionally some radiating pain to the posterior area of his left thigh and calf.  
132	In a letter to the Conciliation Service on 6 June 2018, Pius Ngan advised that the plaintiff’s condition was that of acute onset of back pain at the time of the November 2012 injury, and now intermittent recurring chronic back pain with occasional radiating pain to his left leg, that had developed from the initial injury.  
133	In Pius Ngan’s view, the plaintiff did not have a capacity for pre-injury duties but otherwise had a capacity to work in modified duties.  He may benefit from further physiotherapy over the next two to three months, and had reported improvement with carrying out a self-exercise program.  
134	Dr Chan, from Summerhill Medical Centre, wrote to the Conciliation Service on 5 June 2018.
135	She diagnosed chronic lower back syndrome with pain down the left leg, which started after the incident.  The recurrent and chronic lower back pain was due to work-related injury.
136	Dr Chan reported to the WorkCover insurer on 13 March 2020.  In her view, the plaintiff had no current work capacity due to his chronic lower back pain, depression and hypertension.  He required regular physiotherapy, psychological counselling and pain management, and clinically, he was unlikely to be able to return to work in the foreseeable short-term prognosis.  
137	Dr Chan reported to the plaintiff’s solicitors in September 2021.  
138	She noted the plaintiff had ongoing lower back pain plus pain to both legs which have caused anxiety, stress, depression and insomnia.  His current mental state of low mood was contributing to his difficulty with social, domestic and recreational activities.  He was clinically having anxiety, stress and depression due to his Chronic Pain Syndrome.  That syndrome had a severe impact on his daily living.  From the point of that syndrome and depression, it was difficult for him to be holding down a regular job.
139	He had no capacity for employment due to his ongoing chronic low back pain to his legs as he was having difficulty sitting down for long periods and difficulty bending or twisting his lower back.
140	With the fullness of time, continual back rehabilitation including physiotherapy, hydrotherapy and pain management program, he may return to gainful employment.   
141	She thought clinically, the plaintiff’s current disability was predominantly due to the incident 
142	Psychologist, Lekshmi Nair, thanked Dr Gale from Heidelberg West Medical for the referral of the plaintiff, whom he had met for the first time on 1 March 2021.  She noted the plaintiff presented with anxiety triggered by thoughts about going back to work and worsening of pain.  
143	Ms Nair wrote to the plaintiff’s solicitors on 5 October 2021, having seen the plaintiff from March 2021 for seven sessions.  
144	The plaintiff initially presented with symptoms of persistent pain, stress and low mood.  At the start of treatment, assessments of symptom severity indicated mild levels of depression, normal levels of anxiety, in relation to pain results indicated that pain catastrophising was not a major contributor to the plaintiff’s pain experience, but that his pain was having a significant impact on his daily activity.  
145	Assessment of symptom severity was repeated in May 2021, and although most scores had improved, pain was still impacting on the plaintiff’s daily activities.  She recommended four further treatment sessions, focusing on maintaining mood management and further increasing the plaintiff’s confidence in reducing the impact of pain on daily activity.
Investigations
146	The plaintiff had a lumbar spine CT scan on 17 December 2012 organised by Dr Sood.
147	It was reported the L3-4 to L5-S1 discs showed mild degenerative change with mild diffuse disc bulges and osteophytes.  There was mild loss of disc height at L5‑S1.  No definite disc herniation was seen, although the disc bulge at L4-5 was mildly asymmetric in the left posterolateral position with disc material extending about 3 millimetres into the spinal canal.
148	Appearances were equivocal for left L5 nerve root impingement and clinical correlation was necessary.  At L5-S1 disc, osteophyte complex extended about 3 millimetres to the spinal canal at the central aspect with equivocal S1 nerve root impingement.  There was no central canal stenosis.  The intervertebral foraminal showed no significant worsening.
149	It was concluded there was mild lumbar degenerative disc disease.  No fracture or definite left nerve root compression was seen, though there was an equivocal appearance on the left at L4‑5.
150	Following an ultrasound of the left lower limb organised by Dr Chan on 14 September 2015, it was concluded there was no DVT or evidence of muscle injury.
151	A lumbar CT scan was organised by Dr Chan in October 2017.
152	It was reported there was minor disc space narrowing at L4‑5 and spurring posteriorly.  There was marked disc space narrowing and vacuum effect within the degenerative disc at the lumbosacral level with marked posterior osteophyte formation encroaching into the spinal canal.  This was causing some mild impingement upon the anterior aspect of the spinal theca and upon the origins of both S1 nerve roots.  There was also shallow broad-based posterior disc bulging at the L4‑5 level causing mild impingement upon the anterior aspect of the spinal theca.
The Plaintiff’s medico-legal evidence 
Dr Craig Mills, orthopaedic surgeon
153	Dr Mills first examined the plaintiff in October 2020.  He was then provided with a number of reports and the plaintiff’s clinical records from Summerhill Medical Centre dated 25 September 2020. 
154	Dr Mills had a history of the incident injury and the plaintiff subsequently thereto self managing his symptoms through exercise after the initial attendance with his general practitioner and some anti-inflammatory medication.  He noted the 2012 CT scan and that the plaintiff continued working on light duties until December 2014, when he was made redundant.  He had a further CT scan in 2017.  He reported experiencing a constant ache in his lumbar spine which was increased either randomly or with activities.
155	The plaintiff reported low back pain which was a dull ache most of the time at 1 to 2 out of 10.  It never went completely to zero.  The worst pain was 4 to 5 out of 10 and he managed with ibuprofen (50 over six to eight months) and restricted activities.  He did not have low back pain when driving the car, but became uncomfortable in and around the thigh, and his maximum tolerance was 45 minutes.  
156	On examination, the plaintiff was able to single leg stand with both legs.  He was able to stand on tiptoes without particular difficulties.  Squatting was limited to one half to two thirds, with complaints of lower back pain.  Forward flexion was mostly hip related, and he had minimal lumbar spine mobility.  Lateral flexion to both sides produced pain with some asymmetry.  The gross neurological examination was normal.  No bladder or bowel dysfunction was reported.
157	Dr Mills diagnosed a persistent aggravation of lumbar spondylosis with disc disease and some minor facet joint disease with impingement on the lumbar two lumbosacral roots with probably compression at L5-S1.  The incident had occurred in the workplace, and persisted.  It would appear that the plaintiff had incapacity for current employment which was likely to remain the case for the foreseeable future.  
158	On re-examination in July 2021, Dr Mills was also provided with the notes from Reservoir Medical Group where the plaintiff was treated from June 2010 until October 2018.
159	Dr Mills mentioned further matters of history.  He noted that due to ongoing significant lower back discomfort, the plaintiff ultimately had a second CT scan on 27 October 2017 without dramatic change over the interval.  
160	The history was of a man who had very occasional lower back pain and who, after lifting heavy equipment at work, had developed lower back and neck pain, which had failed to resolve despite time, rest and conservative therapies.  He thought the incident persisted.  Particularly with the style of lifting, carrying and pushing and pulling, the plaintiff had suffered additional injury with acceleration and aggravation of lumbar spondylosis.
161	He thought there had been a very substantial step change as a result of the incident, such that the plaintiff’s back has been symptomatic since then, initially quite severely, but reducing to a quite moderate level, with recurrent symptoms should he return to significant use of his lumbar spine since that time without a substantial period, or even a brief period, of complete resolution.
162	While he accepted there was a degenerative underlying process, in addition, Dr Mills thought there had been a substantial acceleration, aggravation and progression as a result of the incident, which had not resolved or returned to the original trajectory that might have been expected for a degenerate spine in a middle-aged person.  The incident remained a significant contributing factor to the commencement, progression, acceleration and aggravation of presumed lumbar spondylosis involving, in particular, the L4-5 and L5-S1 discs.  He thought the nature of the plaintiff’s prior work was also a contributing factor to incapacity.
163	Dr Mills noted Mr Simms, in his 2020 report, had acknowledged there had been a definite back strain incident and work activity lifting was heavy.  Dr Mills mentioned there was good observational data in northern European studies of lifting occupations and the relative rates of progressive lumbar spondylosis which supports that the lifting activities for this man in general work activities are likely to have been a reason for acceleration and aggravation to his lumbar spondylosis.  The incident had been significant and had led to psychological problems and continues to cause the plaintiff lower back pain and occasional leg pain that has not been followed by an extended period of complete resolution, such that it would appear that the incident has been a significant factor that has led to long-term change.
164	The plaintiff reported low back pain all the time – at a low level, perhaps 2 to 4 out of 10.  He had no period without pain.  It was in the central midline lumbosacral area.  Occasionally, he had had numb toes in his left foot.  He had low back pain, leg pain and buttock pain.  It was not as bad as it was in 2017, but continued to be a significant problem.  
165	On examination, the plaintiff had reduced lateral flexion and reduced straight leg raising.  He was able to perform a half squat.  Single leg stance was normal.  Neurological loss was not quite clear within the confines of the Telehealth assessment.  
166	Dr Mills diagnosed sustained aggravations and accelerations to the lumbar spondylosis process, primarily involving L4-5 but also the L5-S1 discs in the lumbar spine, with neural compression, inflammation in the lumbar spine and nerve effects on the L5 and S1 nerve roots and leg pain and sciatica as a result and persistent lumbar spine dysfunction and occasional leg dysfunction.  
167	In his view, the incident remained a significant contributing factor to the plaintiff’s condition.
168	The plaintiff remained unfit for general policing duties as a result of his lumbar spine injury.  He had not made a successful return to alternative employment which in part related to his lumbar spine symptoms and in part related to his psychological factors.  Due to his lumbar spine condition, he may be fit for a part-time, very light, sedentary role.  
169	Having been provided with Mr Simms’ August 2021 report, Dr Mills provided a supplementary report in September 2021, confirming an ongoing relationship between the plaintiff’s employment and his current lumbar spine condition and a substantial organic basis to his restrictions currently, disagreeing with Mr Simms’ views.
Dr Joseph Slesenger, occupational physician
170	Dr Slesenger examined the plaintiff on 10 August 2021.  
171	His history was that following the incident, there was initial conservative treatment.  Nevertheless, the plaintiff’s symptoms persisted, and he continued to be managed conservatively with medication and exercise.  He reported his symptoms were subject to day-to-day variation and he advised they were generally unpredictable.  Generally, he was able to work for about a year doing modified duties and he ceased work with the employer in 2014.  He advised of a sudden and severe deterioration in 2017, when he sneezed while he bent over, and the aggravation has continued.
172	The plaintiff reported that one to two days a week he could not get out of bed because of back pain.
173	On examination, the plaintiff complained of mild to moderate pain at a level 2 to 5 out of 10, centred in the lower back, with pain radiating into the left calf.  He advised that the pain is subject to variation and flare-ups, the last being about six months earlier.  He advised beneficial use of an electric bike.
174	On examination of the lumbosacral spine, there was tenderness over the lumbosacral junction and the paraspinal musculature.  Flexion was measured at 70 degrees, extension 20 degrees, right rotation 40 degrees, left rotation 50 degrees, right lateral tilting at 20 degrees and left lateral tilting at 30 degrees.  
175	Dr Slesenger diagnosed a soft tissue injury to the lumbar spine, aggravation of degenerative disease, chronic lower back pain with radiating features, but no confirmed evidence of radiculopathy.  
176	He thought the incident, and the pre-injury work demands in general, were causative with regard to the plaintiff’s initial injury and remained causal with regards to his residual impairment.  
177	He thought the plaintiff should adhere to the following work restrictions: no push, pull, carry or lift over 5 kilograms; no repetitive bending or twisting; no prolonged static postures; no exposure to whole body vibration.  With these restrictions in place, taking into consideration the plaintiff’s past employment history, qualifications, computer skills, daytime fatigue, detachment from the workforce since 2014, the absence of a return-to-work plan, the absence of support from his return-to-work co-ordinator and the absence of retraining, he did not anticipate the plaintiff returning to work performing suitable, alternative duties on a consistent and reliable basis.  
178	He considered the plaintiff’s incapacity for employment to be partially related to the physical injury as well as his psychological impairment.  
Dr Jager, psychiatrist
179	Dr Jager examined the plaintiff in September 2021.  
180	On examination, the plaintiff was cheerful, talkative, his thought stream was fluent and coherent and he described no bizarre beliefs.  There were no abnormal sensory perceptions, he was alert and attended well to the interview.  He advised, because of pain, it was devastating he could not play music for more than 10 minutes at a time during the last couple of years.
181	Dr Jager diagnosed a Chronic Adjustment Disorder with Anxiety and Depressed Mood in substantial remission with supportive counselling.  He considered the plaintiff fit for employment within his physical restrictions and that his long-term capacity for employment was not adversely affected by his psychiatric condition.
Dr Chris Grant, psychiatrist
182	Dr Grant examined the plaintiff in February 2020 on behalf of the workers’ compensation insurer.  
183	He diagnosed a mild Chronic Adjustment Disorder with Anxious and Depressed Mood and some compulsive features, but not a full Obsessive-Compulsive Disorder.  He though the Adjustment Disorder appeared to have arisen partly in response to a decision or direction by his employer that he be operationally trained, but also in response to a difficult marital relationship and divorce process.  
184	The Adjustment Disorder was in partial remission and currently caused him very little symptom burden.  The Disorder did not affect the plaintiff’s current work capacity or capacity for suitable employment, 
The Medical Panel 
185	The Panel provided an opinion on 10 October 2018.  It was provided with claim documents and the CT scans, reports from Mr Love and Dr Chan and Pius Ngan.  
186	It concluded the plaintiff was suffering from aggravation of pre-existing degenerative disc disease, materially contributed to by the accepted low back injury.  His incapacity for work resulted from the aggravation of pre-existing disc degenerative disease.
187	In a later opinion of 27 May 2020, the Panel concluded the plaintiff had no current work capacity and the situation was likely to continue indefinitely.
188	In the Panel’s opinion, the plaintiff was suffering from persistent back pain and dysfunction following an aggravation of pre-existing degenerative disease of the lumbar spine and Mild Chronic Adjustment Disorder with Anxiety and Depressed Mood relevant to the claimed injury.
The Defendant’s evidence
Medico-legal examinations
Mr Rodney Simm, orthopaedic surgeon
189	Mr Simm examined the plaintiff via Zoom in December 2020.  He was provided with the lumbar spine CT scans and reports from Dr Chan and the physiotherapist, Pius Ngan.
190	Prior to the incident injury, the plaintiff first noticed a niggle and tightness in his lower back in 2011.  He did not seek treatment.  That year, he also suffered from stress and overload, having been bullied by another band member.
191	On the said date, the plaintiff felt a small pinching in his lower back when partly lifting and pushing a box weighing 40 kilograms to the back of the van.  The following day, he had quite severe pain radiating through the left hamstring into his leg.  From then on, he avoided heavy items and straining his back, but he stayed at work and did his normal duties.
192	The plaintiff ultimately reported the back injury on 27 November 2012 and saw a doctor.  He was referred for a lumbar CT scan the following month, which showed mild degenerative changes with no nerve root compression.  There was equivocal neural contact on the left at L4-5.  
193	Treatment then was confined to self-regulation of activities and taking Voltaren Rapid when needed.  The plaintiff could recall that the symptoms settled down a lot over a period of weeks.  The following year, he did not have any treatment.  He modified the way he unloaded the van and lifted objects.  
194	On 5 September 2013, the plaintiff was given the devastating news that the Band was to close.  He was offered alternate employment in the property office, which he did until he resigned on 1 November 2014.  Otherwise, he would have to go through the training in the academy.  He advised he had neither the mental or physical capacity to do this, and found the whole experience entirely destroying.  He had quite severe stress, anxiety and depression when the Band closed.  He said he would be better dead than alive.  There was concern about his suicidal ideation at that time.  He was referred to a psychologist and had regular counselling for the next six years, but never had formal psychiatric treatment.  
195	Having left the Force, the plaintiff had made up to 300 job applications.  In 2015, he did a work trial driving a forklift and operating a pallet mover, but could not cope with the physical demands of the work, which caused an exacerbation of his left leg pain.  
196	The plaintiff self-managed fluctuating periods of back pain up until 2017 when he had a severe exacerbation of left “sciatica”, which was pain radiating down to his left heel.  He saw a doctor and had another CT scan in October 2017.  It showed some increase in the degenerative changes in his lumbar intervertebral disc.  There was neural contact but no neural compression.  He had physiotherapy and medication and the sciatica resolved.  He had not had a severe bout of sciatica since.
197	The plaintiff was then seeing his doctor on a monthly basis for WorkCover certificates and prescriptions.  He had regular physiotherapy for flare-ups, the last being about a year ago.  He started some exercises in a heated pool but that was discontinued due to the COVID-19 pandemic.  He walked every day for four kilometres and was thinking about taking up cycling for exercise.  In 2014, he had used heat patches and Voltaren Gel, but had not used them recently.  He was then taking Ibuprofen as required.  He had tried Panadol Osteo but it was ineffective.
198	The plaintiff reported constant pain which had increased over the last few years.  It varied from 1 to 2 out of 10 to 4 to 5 out of 10.  It was localised in the lumbosacral region of the back.  He had not recently had sciatica pain.  Earlier in 2020, he had had several months of left calf pain which had now resolved.  He had no neurological symptoms in his legs.  Sustained physical activity aggravated his pain.
199	The plaintiff reported he could walk for an hour; sit for half an hour; standing was painful; he could drive for 45 to 60 minutes, and he could lift 2-5 kilograms.
200	On examination, the plaintiff could walk quite briskly and without evidence of pain.  There was no evidence of gait abnormality.  Thoracolumbar movements, particularly flexion, were limited and associated with complaints of low back pain.  Forward flexion was to 60 to 70 degrees, extension to 30 degrees and painful.  Lateral flexion to the right was 30 degrees without pain, and to the left 30 degrees with pain.  
201	Mr Simm thought the plaintiff then presented with mild to moderate painful lumbar dysfunction due to progressive lumbar disc degeneration, particularly at L5-S1.  He had experienced episodes of left lower limb pain in the past consistent with referred pain from lumbar disc degeneration.  He had probably never had radiculopathy.  He did not currently have any lower limb symptoms to suggest nerve irritation or radiculopathy.  There had been a progression of the L5-S1 disc degeneration from December 2012 to October 2017, which was a reflection of the natural history of the degenerative process.  
202	The clinical course of fluctuating lumbar back pain and occasional episodes of left lower limb pain was consistent with the anticipated clinical course of lumbar disc degeneration.  The pathology was constitutional, genetic, age-related pathology which was not caused by his employment.  The plaintiff’s employment caused symptoms from this pathology, particularly on 5 November 2012, when they occurred in the setting of his feelings of “stress” and “overload” in relation to work.
203	He strongly doubted that there was any ongoing physical relationship between factors arising out of the plaintiff’s employment and his current low back condition.  The incident was mild back strain undertaking a routine work activity which did not necessitate time off work.  It was not reported until three weeks later, and it was not until then that the plaintiff sought medical treatment.  From them on, he modified how he handled the equipment and he avoided further heavy lifting.  He reported that symptoms settled over the weeks that followed.
204	In Mr Simm’s view, this history would suggest there was no significant damage done as a result of the lifting strain.  Although he avoided heavy lifting after the incident, the plaintiff remained in the workforce otherwise doing his normal duties until he resigned.
205	Mr Simm acknowledged it was not possible to completely exclude the heavy lifting and the incident as contributing physical factors but that contribution, if any, would have been minimal.  The onset of the back pain in the setting of the plaintiff’s psychological state was the trigger for the development of a chronic spinal pain syndrome, which was what Dr Chan had diagnosed in 2018.  The ongoing relationship between the plaintiff’s current chronic pain and employment was probably due entirely to non-organic and/or psychological factors.
206	Noting the psychological component, he thought the plaintiff needed to be evaluated by a psychiatrist to determine the effect of his psychological condition on his occupational functioning, noting it would seem to be significant as the plaintiff had been awarded a pension on psychological grounds.
207	Mr Simm thought the plaintiff had the potential for full-time suitable light employment.  He continued with normal duties with self-regulation of the heavier tasks until he resigned.  He would need some flexibility with sitting and standing, objects weighing no more than 5 kilograms would be handled between knee and chest height, and he could do light repetitive activities at bench or table level.
208	Mr Simm was later provided with the Summerhill Medical Centre and Reservoir Medical Group records, and Dr Mills’ August 2021 report.
209	In his view, it was not clear how Dr Mills concluded there was nerve involvement because when Mr Simm saw him, the plaintiff had no sciatica and no neurological symptoms in the legs.  Dr Mills did record leg pain but gave no further details as to the distribution or which leg.  He did record that on occasions there was numbness in the toes of the left foot but did not record which toes.
210	Mr Simm thought the 2017 CT scan recorded no evidence of nerve root involvement at L4-5 where changes were minor.  There were significant degenerative changes at L1-S1 with some impingement on the origins of the S1 nerve roots.
211	Mr Simm acknowledged the reports in literature of northern European studies of lifting occupations and the relative rates of progressive lumbar spondylosis, supporting that the lifting activities for the plaintiff in general were activities that were likely to have been a reason for acceleration and aggravation to his lumbar spondylosis.  However, there were numerous reports which refute the concept that heavy lifting causes lumbar spondylosis.  Isolated lifting incidents, unless they are significantly painful and incapacitating for a period of time are unlikely to damage compromised degenerate intervertebral discs, and alter the natural progression of the degenerative change – noting the lifting incident may have contributed in a small way and the contribution in the setting of his progressive constitutional degenerative changes would be minimal.
212	Notes of attendances at Reservoir Medical Group from April 2011 until December 2017 were confined to problems relating to the plaintiff’s mental health and to other personal issues.  There was no reference to back problems until he advised the doctor in 2017 that he was pursuing a work injury claim for the back dating back to 2012.  This was recorded after it was noted the plaintiff was thinking of legal action for unlawful dismissal.  
213	The Summerhill Medical Centre records from 11 December 2012 contained some entries relating to the left calf in 2013-2014 and lower back pain for five days from 15 September 2015.  On 20 October 2017 – “back pain recurrent, and occasional left leg pain” and on 31 October 2017 – “history of back pain which started in 2012, since recurrent back pain”.  In the years that followed from 2018, chronic symptoms were documented.  
214	A review of the file material did not alter his opinion.  It did confirm the plaintiff had back pain in the incident, following which he attended his doctor and had a CT scan, which showed mild degenerative change.  The next record of problematic lower back pain was not until 2015, about a year after he resigned.
215	The earlier notes regarding the plaintiff’s back pain reported recurrent symptoms rather than continuous ones from 2012, and there were results of physical examinations which reported no abnormality.  Mr Simm thought the history remained consistent with the anticipated clinical course of lumbar degeneration.
216	Further, there were obviously severe associated psychological problems which had the potential to cause severe adverse pain illness response.  The plaintiff’s psychological symptoms related closely to his employment in a number of different ways.  Mr Simm presumed the plaintiff had submitted a claim for work-related stress and wondered if this was the basis for him being awarded the police pension following his resignation.
Dr Mary Wyatt, occupational physician
217	Dr Wyatt examined the plaintiff in late 2020.  She was provided with the same investigations and medical reports as Mr Simm, as well as his report.
218	Dr Wyatt noted the incident injury and subsequent treatment, and that the plaintiff lost his job in 2013 when the Band shut down.  He was offered retraining to enter the Force but that would have required thirty-three weeks of training and he did not feel that he could do it physically and mentally.  He became mentally low and depressed and was contemplating suicide, but he was granted a temporary and subsequently permanent disability pension because of mental ill health.
219	He looked for other work.  In 2015, he tried working one day in a papermaking factory but developed calf soreness and was prescribed Voltaren and ibuprofen.  That knee settled and his main ongoing problem had been in the lower back, which he described as being “degeneration pain”.
220	The plaintiff reported that in 2017, he was in agony with severe exacerbation of his back pain, only having nine hours’ sleep over three days.  He was prescribed Panadol.  That incident took about six months to settle.  He had a scan that showed no material change.  He had seen a physiotherapist, who gave him exercises.  He walked up to 30 kilometres a week.  He found swimming helpful when the pools were open.  He felt his back problem had become gradually worse.  It was initially intermittent and had now become a more constant problem.
221	The plaintiff described having soreness in the central low back constantly.  When exercising regularly, his pain was 1 to 2 out of 10, and his back felt better with movement and sorer with static postures.  He found some chairs comfortable and some more uncomfortable to sit in.  He experienced soreness in the left calf intermittently.  Aggravating factors included jarring and jolting episodes.  He got symptomatic relief from movement.  His sleep could be disturbed by his symptoms.
222	Dr Wyatt noted that domestically, the plaintiff managed the household chores.  He did the dishes, cooking, tidying up, window washing using an extension pole, laundry, vacuuming, mopping and shopping, but tended to avoid sweeping.  He could be sore changing the bed linen and had to do it corner by corner.  He had no gardening to do and sprayed weeds to avoid bending.  He was able to drive.
223	He found it hard to play the bagpipes because of the static posture involved.  He was taking ibuprofen as required, estimating fifty tablets would last about ten months.  The plaintiff lived by himself and shared the custody of their nine-year-old daughter.  His interests included volleyball, and he advised he had played in A-grade.  He played the bagpipes with the Williamstown Band.
224	Examination showed a flattened lumbar curve but there was no tilt at the thoracolumbar spine.  There was reduced movements of the lumbar spine.  Neurological examination of the lower limbs was normal.  The plaintiff reported tenderness in his mid to lower spine.  Straight leg raising while lying down was full, with a negative sciatic stretch test.
225	She thought that the plaintiff had a fairly common back problem.  There was no evidence that an episode occurred which would be expected to result in a long-term back problem.  She noted that the history of preceding problems, after a specific event, is about fifty per cent accurate.
226	In the circumstances, she did not consider the incident had contributed to the plaintiff’s long-term back problem, particularly noting the history of his symptoms becoming more troublesome over time and the lack of a major event of significant trauma with the episode in 2012.
227	She noted that the plaintiff had a broad employment history, including in administrative type work, real estate sales and manual activities.  He had basic computer literacy.
228	In her view, he was fit for work activities that allowed him to change his posture intermittently, did not require awkward posture lifting with the back, such as bending to low levels and lifting, repeated twisting and constant or awkward posture work in regard to the back.  With those restrictions, he was fit for full-time work.
229	She thought that the plaintiff presented as a man with low levels of confidence.  His mental health made it challenging to take on a greater level of self-management.  Were he to improve his fitness, which was important for lumbar spine problems, she thought there would be reasonable prospects that he could take on more manual activities.
230	From a physical perspective, the plaintiff was fit for a range of administrative tasks such as accounts management work in computer services such as working in a plant hire company, call centre work where they provide sit/stand workstations, work in accounts receivable, doing light courier work as he did on the Mornington Peninsula, or to work in a variety of sales roles, as he did in real estate.  He would also be fit to do activities such as property management.  His employment options may be enhanced by further training, but she did not see him requiring retraining to re-enter the workforce.
231	On re-examination in August 2021 via video conference, the plaintiff said that one of the last doctors he saw said he could have an operation.  He did his research and decided to take on a greater level of exercise, researching electric bikes, and he bought one for $4,500 and it had helped him.  He had ridden about 1,700 kilometres since buying it.  He typically rode about 19 kilometres an hour and set the power at three out of five.  This had helped him considerably and cleared up any leg pain he had.
232	These days he described his pain levels at about 2 out of 10 most of the time, although it can be increased at times.  He no longer relied on medication.  He had a packet of fifty ibuprofen, which he used between October 2020 and June 2021, and he was a small way through a second packet which he had purchased in early July 2021.
233	He said he learnt there was medical information to indicate he had a scan back in 2002 and some left leg pain then.  He wondered if that was due to motorbike riding, though the scan advisedly showed a minor disc bulge.  He said there was a significant difference between the 2002 and 2012 scans.
234	The plaintiff cited as a barrier to return to work that his back problem flared intermittently.  In discussing driving roles, he reported getting in and out of a vehicle caused soreness, and some vehicles would stir his back pain.  He advised he would be restricted in terms of lifting over 5 kilograms, and when he lifted, such as carrying supermarket bags, he tried to lift in a symmetrical fashion carrying equal weight with both arms.
235	She thought that the plaintiff presented as a straightforward man.  On examination, there was normal extension and normal lateral flexion to the left, though he indicated some soreness at the end of range of lateral flexion to the left.  It was normal to the right.
236	She noted that since last seeing the plaintiff, he had taken on a greater level of exercise and was now quite positive about the benefits of more regular exercise.
237	The suggested job as customer service consultant, working with a private health insurer within the claims department dealing with inbound calls was a suitable full-time role for the plaintiff providing he had the option of alternating between positions.  As a property manager working full time in an office and then doing client inspectors, the property manager would regularly inspect and visit properties, with fifty per cent of the duties being office-based and the other attending properties and dealing with clients.  It was not physically taxing on the back and was suitable for the full-time work.
238	The job of rental salesman was working full time in Port Melbourne.  That would involve phone, email or face to face activities working in an office storefront environment with regular customer contact and contact with delivery drivers, yard staff and mechanics.  The job involved varying postures and was not physically taxing on the back and was suitable for full time.  
239	The salesperson role was full time working in an office environment at a workstation at the front reception desk with an occasional requirement to go into the factory.  The sales role involved face to face, over the phone or computer-based activity.  There was some walking in the role, no manual handling.  The job was done seated most of the time.  There was an ability to alternate postures with standing and walking when interfacing with customers and communicating in regard to factory-based tasks.  That was a suitable role for full-time hours of work.
240	The pathology courier job involved driving to various locations, picking up samples and taking them back to the head office.  Providing the car was reasonably comfortable, accommodating comfortable postures for the plaintiff this was a suitable role as it encouraged changing posture.  There was lifting of Eskys but that was intermittent rather than continuous and they weighed up to 5 kilograms, which was not excessive in terms of the plaintiff’s back problem.
241	All the suggested jobs fitted within the limitations recommended for the plaintiff’s back problem.  She believed that he could perform all the tasks in the relevant jobs and did not perceive him having difficulties with his back problem doing them.  He had found workarounds for home activities, and when people are focused on re-engaging with activities, they generally do this, as is the case with work.  Focusing on a similar approach, the plaintiff would be expected to be able to find modifications to avoid static posture and completing these jobs.  The opportunity to move around intermittently which the job seemed to provide was the only special flexibility required.  
242	She did not consider that travelling to the job was a limitation and she thought the plaintiff could undertake duties on a consistent basis with respect to his lumbar spine problem.  He had a broad background and she believed he had the skills to learn and complete these activities.  He may benefit from a period of work hardening to get him back into the routine of work, which he had not been engaged in for a number of years.  She thought full-time work was suitable, taking into account the nature of his back problem.
Vocational reports
243	Nabenet provided a Suitable Employment report of 17 August 2021 suggesting the following roles were appropriate for the plaintiff.  
•	customer service consultant in the Melbourne CBD – gross weekly wage $1,196.  
•	property manager in Hawthorn – $1,161 gross per week.
•	Sales coordinator/rental salesperson Port Melbourne – approximate gross weekly wage $1,028.
•	salesperson in Sunshine – approximate gross weekly wage $1,128.
•	Pathology courier in Collingwood – gross weekly wage $1,128.
Findings
244	There is no dispute the plaintiff suffered a compensable injury in the incident on the said date – diagnosed as aggravation of degenerative disease in the lumbar spine/spondylosis.  However, I also must be satisfied that the consequences of that spinal injury are “serious” as at the date of hearing.
Credit
245	Maxwell P said in Haden Engineering Pty Ltd v McKinnon:
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
246	As counsel for the defendant submitted, the plaintiff’s credit is central to this application, with two issues in particular – the first, what, if any, back pain the plaintiff suffered between November 2012 and May 2017 and, secondly, the consequences of that pain as at the date of hearing.
247	It was submitted the plaintiff has shown himself to be unreliable and at times untruthful, both as to his history of back pain and its consequences.  He made a number of assertions in his affidavits, which he later conceded in cross-examination were untrue and, it was submitted, were quite misleading, in circumstances where he had confirmed he was familiar with the contents of his affidavits having read them many times.
248	In his first affidavit, he attributed his inability to complete the required training in 2014 for an active role in the Force solely to his lower back symptoms when it was clear from contemporaneous medical records and his medical examinations for the pension, that his condition was then psychiatrically based.  He only mentioned his psychiatric issues in his second affidavit after pension documents came to light as a consequence of the defendant’s subpoena.
249	Further, the plaintiff understated his level of bagpipe playing after the incident.  In October 2020, he deposed that he had had tried, as at December 2013, to play the bagpipes about four times and could only play for a very short time, yet in cross-examination, it became apparent he continued to practise for one to two hours a day between December 2013 and February 2014, and that he did six jobs playing the bagpipes, between the Band finishing up and May 2015.
250	The plaintiff then said he was mistaken and his problems playing arose after 2017 but he agreed, as Bruce noted on 15 April 2019, that he had played about 30 songs at an 80th birthday and was playing at a school on 24 April 2019.  On that visit, he did not mention back pain and told Bruce he was thinking about joining a band.
251	The plaintiff conceded, after the 2017 flare up, his back pain settled down to a fairly low level where he could play the bagpipes, whereas in his more recent affidavit, he described more significant restrictions with playing.  He had demonstrated a capacity to play and an interest in joining a band.  It was submitted the contemporaneous clinical notes showed an inability to play the bagpipes was untrue.
252	The plaintiff’s affidavit evidence about his problems sleeping due to back pain was misleading by omission, failing to mention any sleep difficulty caused by his mental state which is referred to numerous times in his treatment records.
253	Further, the plaintiff actually ceased playing golf two years before the injury.  It might be true he cannot go back to playing, but he had already stopped playing two years earlier.
254	The plaintiff deposed, prior to his back injury, he did most of the cleaning, gardening and cooking, but it became clear in cross-examination he did not do any cooking at home before the incident, other than cooking rice, and that he now cooks soups, vegetables and meals for his daughter, and enjoys cooking.  
255	In his October 2021 affidavit, he described constant lower back pain since the injury and he could not remember one day since when he had been without pain, yet he conceded in cross-examination this was incorrect, and he had pain free days.  The general practitioner’s notes and Bruce’s notes between December 2012 and October 2017, do not bear out ongoing complaints of back pain or lumbar difficulties.  In particular, a complaint of ongoing pain complaint was inconsistent with the plaintiff’s email to the employer in February 2013.  
256	Further, the plaintiff told psychiatrist, Dr Phillips, in 2014 that he hurt his back about five years ago at work and had an episode of pain, which seemed to have settled.  In a similar vein, when re-examined by Dr Smith in 2015, the plaintiff mentioned a work-related back injury, but said there was no history of ongoing pain and no history of treatment with analgesic medication.  While disclosing a back problem, the plaintiff did not tell these examiners about any ongoing difficulties in relation thereto.
257	In response, counsel for the plaintiff submitted cross-examination did not go as high as to cause any concerns as to outright dishonesty or anything of that nature, but there might be a concern about the plaintiff’s reliability.  The issues relied on by the defendant were largely peripheral, and it was submitted the objective evidence “speaks very loudly and clearly of the substantial injury, which meets the threshold for leave under both heads”.
258	It was submitted the plaintiff’s evidence was fairly and properly tested; however, it was unshaken when it came to the core tenets of his evidence which were supported and corroborated by the objective documentary evidence.  Firstly, he did sustain a lower back injury on the said date, and there is no controversy.  Secondly, it would flare up from time to time.
259	It was also submitted the plaintiff was always attentive and cooperative and responded directly to questioning.  There was no complaint of him being evasive or anything of that nature, and it was submitted he made the proper concessions when matters were put to him.
260	In my view, the plaintiff was an unreliable witness and parts of his affidavits were misleading.  In particular, his evidence about his reasons for leaving the Force in 2014 was totally at odds with all the contemporaneous medical material which mentioned only his severe psychiatric condition at that time.  Further, he overstated any problems with his back in a range of activities, including sleep, handyman tasks and domestic duties.  
261	While it is not is issue that the plaintiff suffered a compensable injury in the incident, he overstated his level of back pain prior to 2017 having made no complaint of difficulties in this regard when attending various practitioners for a range of other issues.  In my view, his evidence in this regard is a reconstruction of events leading up to the 2017 flareup when his condition was such that he did not require medical attention save for the September 2015 calf incident and then again from May 2017, after another two-year break.  
262	Further, I do not accept the plaintiff did not mention his back to psychiatrists who examined him in 2014/2015 because of the seriousness of his mental condition or that they were not interested as he explained.  He did mention his back and the incident injury but stated it had then settled and was not causing him any difficulties.  
263	The plaintiff most recently deposed in October 2021 that he has never been without pain and that is the way he has been since the incident.  I do not accept this is the case, with the plaintiff himself conceding he had had many pain-free days since his injury.  
264	While I accept the plaintiff has suffered ongoing back pain since 2017, flareups are very rare and he has consistently described a moderate level of pain to recent medico-legal examiners.  I do not accept, as he told Dr Slesenger, that he is unable to get out of bed one to two days a week because of back pain or that he needs to lie down every day as he deposed.  When pressed on this issue, he added his inability to get out of bed was due to issues involving Vivien and his ex-wife, as well as his back – the former, a matter he did not mention to recent medico-legal psychiatric examiners.
Causation
Medical opinion  
265	I am mindful of what was said by the Court of Appeal in Dordev v Cowan & Ors in relation to the plaintiff’s credit in this type of case.  A plaintiff’s credibility is relevant not only to whether his evidence should be accepted, but it is also relevant to the reliability of the medical evidence, because the opinions of the doctors are essentially dependent on the credibility and reliability of the history given to them by the plaintiff.
266	Accordingly, in this case, what appear on their face to be medico-legal opinions supportive of the plaintiff’s application, must be looked at in the light of my views as to the plaintiff’s credit.
267	While Dr Mills was supportive of a causal link between the plaintiff’s current back condition and the incident, his history of the plaintiff’s post-incident progress is inaccurate.  
268	I do not accept, as Dr Mills concluded ,that it was “a very substantial step change” as a result of the incident, such that the plaintiff’s back had been symptomatic since that time, initially quite severely but reducing to a moderate level with recurrent symptoms should he return to significant use of his lumbar spine since that time, without a substantial period or even a brief period of complete resolution.
269	While he was provided with the Summerhill notes, Dr Mills did not comment on the lack of attendances for back issues at that clinic from late 2012 to 2015 and then again until May 2017.  The reality was not a situation of low back pain and leg pain which had failed to resolve despite time, rest and conservative therapies, as Dr Mills noted.  There was not ongoing significant low back discomfort leading up to the October 2017 CT scan.
270	While Dr Mills thought there was a substantial acceleration, aggravation and progression as a result of the incident which had not resolved or returned to the original trajectory, he did accept that there was a degenerative underlying process.  
271	On the correct history, I do not accept that the incident remains a significant contributing factor to the commencement, progression, acceleration and aggravation of presumed lumbar spondylosis as Dr Mills opined.
272	Dr Slesenger also accepted a causal link on the basis of an acceptance of “persisting” back symptoms since the 2012 incident.
273	While the Medical Panel, in 2018, found an incapacity for work resulting from the incident injury, it was not provided with the plaintiff’s clinical records, Bruce’s notes, the ESS records or the plaintiff’s February 2013 email, all of which were relevant to an analysis of the plaintiff’s ongoing symptoms.  
274	Although the plaintiff has been treated at Summerhill Medical Centre since at least 2012, and by Dr Chan at that clinic since 2015, there is no report from that practice in which there is any detailed analysis of the cause of the plaintiff’s current back condition.  Dr Chan simply stated in his 2021 report that the plaintiff’s current disability is predominantly due to the incident.  
275	In his August 2021 report, Mr Simm summarised the Summerhill attendances since December 2012 with no mention of back pain until the September 2015 calf incident.  
276	While in October 2017, Dr Chan noted “history of back pain which started in 2012, recurrent pain,” save for low back and left leg pain in September 2015, there were no entries until 2017 detailing any specific lumbar complaint.
277	On the issue of causation, I prefer the view of Mr Simm, who commented specifically on the plaintiff’s medical records, concluding the clinical course of fluctuating lumbar back pain and occasional episodes of left lower limb pain was consistent with the anticipated clinical course of lumbar disc degeneration.  He strongly doubted there was any ongoing physical relationship between factors arising out of the plaintiff’s employment and his current low back condition.  
278	As Mr Simm noted, the incident was a mild strain, when the plaintiff was undertaking a routine work activity which did not necessitate time off work.  He did not report the incident until three weeks later.  The plaintiff said the symptoms settled over the weeks that followed.  The history would suggest there was no significant damage done as a result of the lifting strain.   
279	A similar view was held by Dr Wyatt, who concluded the incident does not contribute to the plaintiff’s long-term back problem, particularly noting the history of his symptoms becoming more troublesome over time and the lack of a major event of significant trauma in the incident.
280	From the said date until May 2017, the plaintiff was regularly treated by his general practitioner and Bruce, and save for in September 2015, made no mention of any back problem, while attending for other issues.
281	The plaintiff agreed that his back had recovered on his return from China in early 2013 as he emailed and that the next time he had sought any medical treatment for his back was the sciatica incident in May 2015.  There was then a further gap until the coughing episode in May 2017.
282	Taking into account all the evidence, I am not satisfied that any back issues from which the plaintiff presently suffers are related to the incident injury, now nearly ten years ago.  While the WorkCover insurer accepted the plaintiff’s 2017 claim, all the relevant evidence was not available at the time of that decision.  
283	Accordingly, the plaintiff’s application for leave to bring proceedings for damages for pain and suffering is dismissed.
Consequences 
284	However, if it accepted there is a causal relationship between the incident and the plaintiff’s current spinal condition, I must be satisfied that the consequences thereof are “serious” as at the date of hearing.  In my view, they are not.
285	As counsel for the defendant submitted, seriousness is very bound up in credit.  As the plaintiff is an unreliable witness, the Court needs to look at objective evidence when considering seriousness.
Treatment 
286	The plaintiff has had limited treatment for his back.  
287	He only sees his general practitioner, Dr Chan, every three months for certificates, not treatment.  
288	He takes no prescription medication, instead taking ibuprofen in a small dosage; sometimes on an infrequent basis.
289	While the plaintiff deposed to a physiotherapy referral soon after the incident, there is no record of any physiotherapy treatment until he saw Pius Ngan in in early 2018 on three occasions, over five years after the incident.  
290	He has not been referred to any orthopaedic specialist and no surgery has been suggested by any treater.
291	He was referred to psychologist, Lekshimi Nair, in March 2021 under Medicare to use focussed psychological strategies such as CBT to contain symptoms of emotional stress.  This does not appear to be a formal pain management program.  
292	While it was submitted by counsel for the plaintiff that the 2012 and 2017 CT scans were critical and that they confirmed the plaintiff was left with a back that had degenerated far quicker than one would ordinarily expect of someone of his middle age as a result of the incident, orthopaedic surgeons, Dr Mills and Mr Simm, both agreed the radiology showed, essentially, an ongoing degenerative change with no disc injury or prolapse.      
Other consequences
293	The plaintiff claimed to have been limited in a range of activities by his back condition; however, it became apparent during the hearing that he still engages in those activities, albeit some at a reduced level.
294	As the Court of Appeal noted in Stijepic v One Force Group Australia Pty Ltd:
“It is to be remembered that in reaching a conclusion whether a worker has established that he (or she) suffered serious injury ‘the significance of what has been lost, which bears upon the seriousness of consequences, may be informed, to an extent, by what is retained’.”  
295	While the plaintiff deposed he could no longer do handyman activities after the incident injury, he has been able to carry out a range of tasks since that time.  He built a pergola after the incident, not before.  Post incident, he built a cupboard for Vivien, cleaned all the windows and screens of his mother’s house and fixed the fences and trimmed the tree branches.  This physical work was noted by Bruce on a number of attendances when the plaintiff did not report any back issues doing these activities.
296	The plaintiff is able to walk up to 4 kilometres every second day.  Riding long distances on his electric bike largely resolves his left leg pain.
297	Although he claims his domestic activities are restricted by back pain, he is able to look after Vivien and walk her to school.  He does his own housework, shopping and cooking, 
298	While the plaintiff claims he is unable to play golf because of his back, he last played golf two years before the incident and has never played competitively.  
299	The main consequence relied upon was the plaintiff’s inability to play bagpipes which were his life, his work and also his social activity before the incident.  It was submitted if the Band was together, one would expect the plaintiff certainly would not have been playing in it as at 2017, given his ongoing struggles.  It was submitted this consequence alone was “serious”.  
300	In my view, the plaintiff overstated his post-incident difficulties playing the bagpipes.  He continued to play without restriction until the Band disbanded – an activity which was quite physical as he described in detail.  Performances and practising continued in the following years, although on a reduced basis, and as recently as April 2019, he expressed an interest in joining another band.
301	While from 2017 with the flare up in the plaintiff’s pain his bagpipe playing has been restricted, it is not an activity lost to him.  He is still able to practise and play.   
302	Although the plaintiff’s sister’s corroborative affidavit evidence was unchallenged, she simply focussed on his present condition and made no mention of the progress of the plaintiff’s back condition since the said date.  
Work 
303	Counsel for the plaintiff submitted the plaintiff has no current work capacity as a result of his incident-related spinal impairment and that he had therefore suffered a loss of earning capacity of 40 per cent – being unable to earn in excess of $788 per week.
304	In the alternative, if it was found that he was capable of some part-time work, as noted by Dr Mills, the plaintiff still suffered a 40 per cent loss, in the roles identified by Nabenet of customer service consultant, property manager, sales coordinator, and salesperson if he could work half time.
305	Counsel for the defendant submitted the plaintiff has the capacity to do full-time in a number of jobs.  Mr Simm thought he had the capacity for suitable full-time light employment, provided there was flexibility with postures and limited lifting. Dr Wyatt also thought a number of jobs suggested by Nabenet were suitable for the plaintiff.  
306	Even if it is accepted any current issues the plaintiff has with his employment are related to the incident, I am not satisfied that any such employment consequences are “serious” or that the plaintiff has suffered a 40 per cent loss of earning capacity as a result of any incident related spinal impairment.    
307	Post incident, there was no formal change or restrictions placed on the plaintiff’s Band duties.  He required no time off work and was able to continue playing until the Band disbanded in late 2013 – despite the physicality of playing as he described.  The only problem he described was with lifting equipment in and out of the van.  He was able to work full-time normal duties – not light work or modified duties, as a number of examiners described.  
308	In these circumstances, the incident was not a “trigger point” as counsel for the defendant described.
309	Further, the plaintiff was able to work full time in an administrative role at Mill Park until late 2014, when he took a package as he was unable to do more active police work.  
310	Significantly, the plaintiff left the Force, in my view, in 2014 because of psychiatric factors, not because of any back injury as he now maintains.  He obtained a pension for his psychiatric condition, which he continues to receive, and while mentioning his back injury to psychiatrists who saw him for his pension application, advised them his back condition had then settled.
311	As at October 2015, the plaintiff had applied for hundreds of administrative and warehousing jobs but was unsuccessful. 
312	In my view, he effectively took on the life of a retiree in 2015 when he commenced receipt of a pension.  In his own words, his receipt of the pension had a lot to do with having not applied for jobs since February 2017.  It was not until November 2017 that he submitted a claim for compensation which was accepted.
313	As counsel for the defendant submitted, while the plaintiff might not be able to do heavier manual work, this is not the type of work which he had been doing pre-injury.  He did not rely on manual labour for an income.  He does retain the capacity to perform light semi-sedentary work; he has a broad skills base.  As recently as April 2019, he was considering getting work with Victoria Police. 
314	He is an intelligent man who has chosen not to seek further work once in receipt of the pension and also weekly payments.  He has experience in administrative work and has computer skills which could be updated if necessary 
315	I do not accept that the plaintiff would be an unreliable employee, unable to attend work on a regular consistent basis.  As counsel for the defendant submitted, the plaintiff reported to Dr Slesenger he had had one flare up in the last six months During the hearing, he reported one flare up in the last eighteen months.  
316	Further, in my view, the plaintiff’s mental state continues to play a role in his ability to return to work.  He described significant problems getting out of bed due to concerns relating to his daughter and he has recently been referred to a psychologist.
317	Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
318	In Dr Chan’s view, the plaintiff continues to suffer from anxiety, stress and depression which contribute to his inability to work.  Dr Mills also acknowledged the presence of psychological factors which contributed to incapacity for alternative employment.   
319	Dr Slesenger thought the plaintiff’s incapacity for employment to be partially related to the physical injury as well as his psychological impairment.  
320	As Mr Simm noted, the effect of the plaintiff’s psychological condition on his occupational functioning would seem to be significant as the plaintiff had been awarded a pension on psychological grounds.
321	While recent medico-legal psychiatric examiners did not consider that the plaintiff’s mental state was relevant to his work capacity, they were unaware of the plaintiff’s mental problems getting out of bed as he described to Dr Slesenger.  
322	Taking into account all the evidence, I am not satisfied that the plaintiff has suffered the requisite loss of earning capacity of 40 per cent as a result of any incident-related spinal impairment or that any employment consequences in relation thereto are “serious”.
323	Accordingly, the application for leave to bring damages for loss of earning capacity is also dismissed.
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