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

Case No.  CI-22-01727 

Roman Safi	Plaintiff	
		
v		
		
Victorian Workcover Authority	Defendant	

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JUDGE:	Her Honour Judge Myers	
WHERE HELD:	Melbourne	
DATE OF HEARING:	17 November 2022	
DATE OF JUDGMENT:	6 December 2022	
CASE MAY BE CITED AS:	Safi v Victorian WorkCover Authority	
MEDIUM NEUTRAL CITATION:	[2022] VCC 2040		

REASONS FOR JUDGMENT
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Subject:	ACCIDENT COMPENSATION 
Catchwords: 	Serious injury application – pain and suffering consequences – injury to the lumbar spine
Legislation Cited:	Workplace Injury Rehabilitation and Compensation Act 2013, s335
Cases Cited:	Johns v Oaktech Pty Ltd [2020] VSCA 10; TTB SMS Pty Ltd v Reading [2020] VSCA 203; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Tatiara Meat Company Pty Ltd v Kelso [2010] VSCA 12; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Sabo v George Weston Foods [2009] VSCA 242 
Judgment:	Leave granted to the plaintiff.	

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APPEARANCES:
	Counsel	Solicitors	
For the Plaintiff	Mr A Hill	Slater and Gordon Ltd	
			
For the Defendant	Mr B R McKenzie	Lander & Rogers	

HER HONOUR:

Introduction
1	This is a “serious injury” application brought pursuant to the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) by the plaintiff, Mr Roman Safi, in which he seeks the leave of the Court to commence a common law proceeding for pain and suffering damages.
2	The plaintiff relies upon injury to his spine as the “serious injury”.
3	The relevant legal principles are well-known and are not in dispute.  
4	The defendant accepts initial and ongoing causation of the injury.  The issues to be determined are:
(a)	is the plaintiff a reliable and credible witness?
(b)	what are the current impairment consequences of the plaintiff’s injury, and are they “more than significant or marked and at least very considerable”? 
5	The plaintiff is a twenty-six-year-old man.  He was born and raised in Melbourne, Victoria.  He completed Year 12 at Narre Warren South College in 2014.  In 2015, he began studying for a degree in Biomedical Science at Deakin University but deferred his studies later that year as he was not enjoying his course.
6	Whilst attending University, and from time to time thereafter, the plaintiff assisted his father by working part time in his father’s commercial painting business.
7	Between 2016 and early 2017, the plaintiff worked in a casual quality control role for Johnson & Johnson, generally performing full-time hours.
8	On 10 July 2017, the plaintiff commenced working as a labourer for a labour hire company, Adecco Industrial Pty Ltd (“the employer”).  
9	In October 2017, he was placed by the employer at Iveco Trucks.  His work involved preparing truck parts for painting on an assembly line.
10	On 8 December 2017, the plaintiff developed pain in his lower back whilst lifting heavy truck braces (“the incident”).  
11	The plaintiff was absent from work due to his lower back injury for approximately six weeks.  Thereafter, he continued to work for the employer between early 2018 and February 2019 on various return to work plans, performing very light duties on reduced hours.  The plaintiff has not worked since February 2019.
12	In March 2018, the plaintiff resumed his studies, commencing a Science degree at Monash University.  He has since transferred to the University of South Australia and is presently studying online for an Associate Degree in Engineering.  He is due to complete his course in March 2023 and intends thereafter to work as a draftsperson and AutoCAD designer.
13	The plaintiff’s treatment for his back has been conservative.  
14	The plaintiff initially attended Dr Amaechi (Kingsley) Ezeh, general practitioner (“GP”), at the Lynbrook Village Medical Centre on 14 December 2017.  Dr Ezeh prescribed Voltaren and referred the plaintiff for a CT scan.  
15	A CT scan dated 18 December 2017 is reported as concluding that there were early flavum and facet degenerative changes with disc bulging at L5-S1 as well as a focal superimposed protrusion.
16	He attended for physiotherapy at Complete Care Health Group between January and March 2018, on 24 February 2020, and, again between February and July 2021.  He attended exercise physiologists between April 2018 and March 2019.  He has attended a chiropractor on two occasions, most recently in February 2020.  
17	The plaintiff has irregularly attended on general practitioners at the Lynbrook Village Medical Centre for treatment for his low-back injury.  
18	The mainstay of the plaintiff’s treatment for his back has been a regular exercise regime which he undertakes at the gym, the use of over-the-counter painkillers and regular remedial massages.  
19	I have considered all the tendered evidence and the plaintiff’s viva voce evidence, but I shall only refer to it to the extent necessary in these reasons.
The Plaintiff as a witness
20	The plaintiff swore affidavits on 23 December 2021 and 8 November 2022, and was cross-examined.
21	The thrust of his affidavits is that prior to the incident, he had been in good health and had not had any low-back pain or restrictions.  Since the incident, he has had ongoing low-back pain which varies in intensity; however, it is generally always there.  He describes an ache in the middle of his lower back that can spread to either the left or right side.  He regularly experiences pins and needles down his right leg and more recently, his left leg.  His pain is aggravated by bending, and by sitting or standing for prolonged periods.
22	In cases of the present kind, the credit of the plaintiff will often be critically important.  The defendant submitted that the plaintiff should not be regarded as a credible or reliable witness for the following reasons:
(a)	the opinion of Dr Chris Baker, specialist in occupational medicine, that the plaintiff “has a greater capacity for work than he admits”; 
(b)	the surveillance footage displayed a picture of normality;
(c)	the plaintiff downplayed the duration of his return to work;
(d)	the plaintiff was not candid as to the reason he ceased attending Dr Ezeh in February 2019;
(e)	the plaintiff gave evasive evidence regarding his activities at the gym;
(f)	the plaintiff gave inconsistent accounts of his functional tolerances.
Dr Baker
23	In his first report dated 27 May 2018, Dr Baker opined that some psychological issues were impacting on the plaintiff’s presentation.  In his second report dated 17 September 2018, Dr Baker opined that there were non-physical factors impacting on the plaintiff’s presentation, and that he had a greater capacity than he portrayed.  
24	The defendant conceded during the course of submissions that if there were psychological factors at play, these would not amount to a credit issue if unintentional.
25	I do not find that Dr Baker’s opinions provide a basis for any adverse credit finding against the plaintiff.  Dr Baker does not set out his reasoning for his opinions on this issue and thus there is no proper basis to find that the plaintiff was intentionally exaggerating his symptoms when examined by Dr Baker.  
26	Furthermore, Dr Baker’s reports were provided more than four years ago, and he is alone in his opinion that psychological issues impact the plaintiff’s presentation.  I note that on 10 May 2021, Mr Carey, orthopaedic surgeon, opined that the plaintiff was straightforward and stoic and there was no evidence of embellishment, and on 1 August 2022, Mr Moran, orthopaedic surgeon, noted the plaintiff displayed no tendency to exaggerate his clinical picture and found no evidence of abnormal illness behaviour.
Surveillance
27	The defendant tendered approximately 10 minutes of video surveillance taken of the plaintiff on 11 October 2022, 13 October 2022, 20 October 2022 and 8 November 2022.  The defendant submitted that it portrayed “a picture of normality”.
28	The plaintiff was seen to walk, stand, drive and travel as a passenger.  Generally, the plaintiff appeared to move freely on each occasion.  However, in the footage on 11 October 2022, he got into the passenger seat of a car in a somewhat unusual manner, sitting on the seat and then swinging his legs into the footwell.  In evidence, the plaintiff said that he adopted this manoeuvre if his back was more painful.
29	The surveillance footage is very brief.  It does not show the plaintiff performing any strenuous activities, nor any activity that he has claimed he cannot perform.  I note that the 4 minutes or so of footage of him standing and talking to his neighbour on 20 October 2022, shows him to be moving rather than standing still.
30	In the circumstances, the surveillance footage does not cause me to have any significant doubt as to the plaintiff’s credibility as a witness.
Duration of the Plaintiff’s return to work
31	At paragraph 20 of his first affidavit, the plaintiff outlined his return-to-work duties with the employer and deposed to the fact that he ceased work in June 2018 and has not worked since.  It became evident during cross-examination that the plaintiff continued working for the employer on return-to-work plans until February 2019.  The plaintiff agreed that the date given in his first affidavit was in error and explained that he was mistaken as to the date due to the passage of time.  I accept his explanation in this regard.
The reason for ceasing to attend Dr Ezeh
32	The plaintiff said that he ceased attending Dr Ezeh in February 2019, as Dr Ezeh told him that he no longer wanted to deal with WorkCover patients.  It was put to the plaintiff during cross-examination that Dr Ezeh was encouraging the plaintiff to work more during his return to work and was frustrated with the plaintiff’s lack of effort and that this was the real reason he ceased attending Dr Ezeh.
33	The clinical entry on 12 February 2019 relevantly records:
“I have told him to look for another GP to continue his care from onwards.  He does not seem to be working well with me on matters relating to his Workcover.  
 Patient is more than happy to seek ongoing care regarding his Workcover with another doctor from this medical centre or elsewhere.” (sic)
34	The clinical note does not provide support for the plaintiff’s contention that Dr Ezeh was no longer willing to deal with WorkCover patients.  It provides some support for the contention that Dr Ezeh had some issues working with the plaintiff regarding his WorkCover claim.  However, I note that Recovre, the return-to-work provider, was unable to elicit any response from Dr Ezeh to eight requests for information between December 2018 and February 2019.  It was submitted on behalf of the plaintiff that Dr Ezeh’s failure to respond to these requests ties in with the plaintiff’s evidence regarding Dr Ezeh’s views in respect of dealing with WorkCover patients.  I accept that it does.  Furthermore, I note that Dr Ezeh had ordered a further CT scan of the plaintiff’s lumbar spine only five days before this attendance, and on 12 February 2019, continued to certify the plaintiff fit for suitable employment in line with the return-to-work plan dated 4 October 2018.  
35	The evidence is ambiguous on this issue, and I am not satisfied that it provides a basis to impugn the plaintiff’s credibility or reliability as a witness.
Gym activities
36	The defendant submitted that the plaintiff was evasive during cross-examination regarding his activities at the gym.  I agree that the plaintiff was somewhat vague and evasive during cross-examination on this issue.  However, overall, I am not satisfied that this affects the plaintiff’s credibility or reliability to any significant degree.  The plaintiff deposed to his gym attendances in both affidavits.  Indeed, he relies upon this activity as a form of treatment.  
Functional tolerances
37	The defendant submitted that the plaintiff has given inconsistent accounts of his functional tolerances over time.  He was taken to an Oswestry Disability Questionnaire which he completed on 13 November 2018 in which he relevantly reported:
“Pain does not prevent me walking any distance
 … 
 Pain prevents me from sitting more than 30 minutes
 … 
 I can stand as long as I want without extra pain
 … 
 My sleep is occasionally disturbed by pain
 … 
 My social life is normal and gives me no extra pain.”
38	In his first affidavit, the plaintiff deposed to an inability to sit or stand for more than 20 minutes without changing position or moving around.  In his second affidavit, the plaintiff said that standing for long periods is his worst problem, and if he stands in one spot for more than about 5 minutes, he starts to develop an ache in his lower back and needs to squat to relieve it.  He deposed that his sitting tolerance was better than his standing tolerance.
39	I accept that the plaintiff’s pain and level of restriction can vary from day to day and depends upon his level of activity.  In those circumstances, I am unable to be satisfied that the differing accounts of his tolerances over the several years since he sustained his injury, are an indicator that the plaintiff is not a credible or reliable witness.  
40	My impression of the plaintiff was of a man who gave his evidence in a straightforward manner.  He made appropriate concessions.  He was somewhat vague about the dates of various events since the incident, but I accept this was likely due to the passage of time.  I am satisfied that I can rely upon the plaintiff as a witness of truth.
The medical evidence
Treating practitioners
41	The evidence from treating medical practitioners is extremely limited.
42	No GP report was tendered by the plaintiff but given that he has not attended a GP for his lower back injury since 3 March 2020, such report would be of limited utility.  
43	The clinical records of Lynbrook Village Medical Centre were tendered by the defendant.  They reveal reasonably regular attendances by the plaintiff for his lower back condition between December 2017 and 22 February 2019, but only one attendance for back pain since, on 3 March 2020.  Various certificates of capacity were tendered by the defendant which certified the plaintiff unfit for his pre-injury duties but fit for suitable duties on reduced hours during his return-to-work program.  I find that the plaintiff has attended his GP when he has experienced exacerbations of his lower back pain but has not attended regularly since early 2019. I find that the reasons for this are twofold.  First, the plaintiff believes that he simply must live with his lower back problems and pain and continue to perform the exercises recommended by the exercise physiologists.   Second, the plaintiff has found the side effects of prescription medications to be unacceptable and has therefore avoided them.  Whilst I note that at one stage, the plaintiff discussed obtaining a referral to a neurosurgeon with his GP, I find that he did not pursue it as he was discouraged from doing so by Dr Ezeh.
44	Vanessa Joyce, an exercise physiologist, provided a report dated 16 November 2018.  The report noted that the plaintiff first attended on 13 November 2018, completing an Oswestry Disability Questionnaire that day.  She outlined the “Return to Function” program that the plaintiff was to be provided with.  This comprised an education and foundation phase, a work conditioning phase, and a self-management phase.  The plan was for the plaintiff to attend a total of twelve sessions over approximately six months.  The aim of the treatment was to progress the plaintiff to a self-managed exercise regime to manage his lower back condition.  This is what has occurred.
Medico-legal 
45	The plaintiff tendered reports from orthopaedic surgeons, Dr Gregory Nutting, dated 22 January 2019, Mr Roy Carey, dated 10 May 2021, and Mr Peter Moran, dated 1 August 2022.
46	Dr Nutting examined the plaintiff at the request of the WorkCover agent on 7 January 2019.  He took a history that the plaintiff was continuing to live with his parents and helped with chores.  He was able to drive for up to 45 minutes but experienced back stiffness and some pain after that.  His treatment comprised physiotherapy, a home-exercise program and medication consisting of intermittent Panadeine Forte when necessary.  The plaintiff reported to Dr Nutting that he experienced discomfort in his back which was more pronounced on the left than the right, but constant in the middle.  The history included information that the plaintiff had limits with his physical capabilities, avoided lifting, and that his recreational interests of working on cars and gaming had been severely limited.
47	Dr Nutting opined that the plaintiff had an L5-S1 disc protrusion of minor degree, more left sided than right, that he was unfit for pre-injury duties, but fit for the then planned suitable duties.  Dr Nutting further opined that the plaintiff would be wise to avoid any physical loading of his spine, and he was “hopeful” that the plaintiff could return to full hours but with lighter duties than his pre-injury duties.
48	Mr Carey examined the plaintiff at the request of the defendant for the purpose of his impairment benefit claim on 10 May 2021.  He took a history that the plaintiff’s treatment comprised Panadol and Voltaren, physiotherapy for flares of pain every month or two, and gym attendance six days per week.  He reported that the plaintiff told him of constant discomfort in his lumbosacral spine, which varied in intensity according to posture and activity.  The plaintiff told Mr Carey that he experienced very occasional discomfort over his posterior thigh on the left leg, and frequent discomfort down the back of his right leg to his foot.  He also said that driving or sitting for more than 90 minutes caused him to develop pins and needles in the same area.  The plaintiff told Mr Carey that his sleep was constantly disturbed, and he wakes stiff and sore in the mornings.
49	Mr Carey opined that the plaintiff was suffering from an aggravation of lower lumbar degenerative disease/spondylosis, and the acute lesion may have been the reported focal superimposed protrusion at L5-S1.  He expressed the opinion that the clinical history and examination findings were compatible with the plaintiff’s specific injury.  He further opined that the prognosis was for ongoing discomfort into the foreseeable future.
50	Most recently, the plaintiff was seen for medico-legal purposes by Mr Peter Moran on 6 July 2022.  He noted that the plaintiff reported ongoing back pain, intermittent right leg pain and paraesthesia, provoked significantly by prolonged sitting or standing, and that his sleep was disturbed by pain.  On examination, Mr Moran noted evidence of paravertebral muscle spasm.  He opined that the clinical picture suggested an incomplete L5 radiculopathy on the right side, with impaired balance and co-ordination, hypoesthesia in an L5 dermatomal pattern, and weakness of the EHL muscle.
51	Mr Moran sent the plaintiff for an MRI scan, which was performed on 11 July 2022.  Mr Moran opined that this showed desiccation of the L5-S1 disc, indicative of mechanical disruption of the disc structure, with a posterocentral disc protrusion, facet joint hypertrophy and compression of the emerging right L5 nerve root.  Mr Moran expressed the opinion that given the plaintiff has L5-S1 discogenic pathology, and L5 signs, the conclusion is that he has intermittent foraminal compression of the L5 nerve root at that level.  He suggested that this may be better demonstrated by performing a scan whilst standing erect.
52	In summary, Mr Moran described the plaintiff as having suffered a lumbosacral disc injury, a mechanical injury leaving him with segmental instability and significant spinal dysfunction.  He said the plaintiff will remain restricted in his tolerance of bending, lifting, twisting, stooping, pulling, pushing, lifting, repetitive pulling, pushing or lifting, repetitive and or prolonged use of the back, overhead activities, prolonged sitting, walking or standing, walking up or down inclines and using steps or ladders.  He opined that there was a definite risk of significant clinical deterioration in the foreseeable future.  He thought that the plaintiff was unfit for his pre-injury duties and would remain so for the foreseeable future.
53	The defendant tendered a report from Mr Richard Pease, orthopaedic surgeon, dated 31 January 2018.  Mr Pease’s report is of limited utility given that it is now well out of date.  He was of the view that the claimed lifting incident appeared to have caused the injury which could be a new injury or an aggravation, acceleration, exacerbation or deterioration of pre-existing pathology.  Mr Pease opined that it would not be safe for the plaintiff to undertake any work that would involve lifting, bending or twisting, but thought the plaintiff capable of performing light duties, initially for a few hours a day.
54	The defendant tendered two reports from Dr Chris Baker, dated 27 May 2018 and 17 September 2018.  As with Mr Pease, these reports are of limited utility given their age.  Dr Baker opined that the plaintiff suffered a discal injury to his lower back at the L5-S1 level, and his pain continued and was restricting his movements.  He said that the plaintiff was unfit for his pre-injury duties but fit to perform light sedentary work.  He recommended the plaintiff participate in regular exercise to strengthen his lower back and associated musculature.
What are the permanent impairment consequences, and do they meet the threshold?
55	I find that the plaintiff suffered an aggravation injury to his lower back by way of aggravation of previously asymptomatic lumbar spondylosis, together with an acute disc lesion at L5-1 which has resulted in chronic pain that varies in intensity.  I note that the plaintiff’s account of his pain, restrictions and medication use, is consistent with what he has told examining experts.  I consider that he has stoically adapted to the impairment consequences of his lower back injury.
56	Counsel for the defendant took me to a number of authorities as the basis of the submission that the plaintiff’s application should fail.  It was submitted that even if I were to accept the plaintiff as a credible and reliable witness, his impairment consequences could not fairly be described as “at least very considerable”.
57	In assessing the “seriousness” of an injury, it is relevant to look at what the plaintiff does to manage the injury and the pain.  I find that the plaintiff has been advised to manage his injury conservatively, and the thrust of that was to progress him from hands-on conservative treatment to a self-managed exercise regime.  This he has continued to undertake, currently six days a week for an hour each morning at the gym.  In addition, the plaintiff has regular remedial massages.
58	I accept the plaintiff’s evidence about the extent of pain and restrictions caused by his lower back injury.  Consequently, I find that the plaintiff experiences constant pain in his lower back which is an aching pain, and he also experiences morning stiffness.  I find that his pain is aggravated by prolonged sitting and standing.  He experiences pins and needles in his right leg down to his foot on six days out of seven and more recently, he has experienced pins and needles in his left leg.  For some time, his medication use has comprised Panadol, usually taken six days a week, four tablets a day most days of the week, and otherwise two tablets a day.
59	I find that the plaintiff has adapted his approach to most activities to avoid aggravating his back problem.  He uses a sit/stand desk so that he can vary his posture when studying and to ensure that he does not remain static.  
60	I find that the plaintiff’s sleep is affected because of his back injury on at least five nights a week.  
61	Whilst the plaintiff would attend the gym prior to the incident, he is no longer able to perform the same activities that he used to undertake.  I find that because of his back injury, he has had to reduce his weightlifting and bending at the gym.
62	I find that the plaintiff socialises less than he used to in an effort not to aggravate his condition.  Whilst he does still go to cafes, restaurants and occasionally to the cinema, the frequency has reduced, and his enjoyment of these activities has significantly diminished by reason of his pain and need to alter his posture.
63	I find that prior to his injury the plaintiff would frequent nightclubs, approximately monthly, and enjoyed dancing.  He is now very limited in his ability to dance by reason of his back injury, and I find that he generally avoids doing so in order not to aggravate his low back condition.
64	I find that the plaintiff’s sporting pursuits have been impacted because of his back injury.  He previously enjoyed playing indoor soccer but has not been able to do so since sustaining his back injury.  He previously played basketball in a team and socially but can no longer participate in a full game due to the pain and restriction of movement in his back.   
65	Prior to his injury, the plaintiff enjoyed computer gaming on a regular basis.  I find that the frequency and the length of time he undertakes this activity have both been significantly reduced because of his inability to sit for prolonged periods due to his back injury.
66	I further find that the plaintiff has had to significantly curtail his hobby of tinkering with cars, because of his restricted movement and in order not to aggravate his back pain.
67	I find that the plaintiff is permanently unfit to perform his pre-injury duties and is fit only for light sedentary work.  However, I also accept that the plaintiff’s pre-injury duties comprised work that he was performing whilst he had temporarily deferred his studies.  The plaintiff has now resumed his university studies and apparently also a career trajectory towards a profession which is likely to involve light sedentary work.  Consequently, I find that the plaintiff has not lost the capacity to undertake his intended career, but his inability to perform unrestricted work is a factor that informs his loss of enjoyment of life, and loss of amenity. 
68	All the evidence and circumstances must be considered and the fact that the plaintiff likely can work as a draftsperson and AutoCAD designer is not determinative against him in a serious injury application.
69	I find that the plaintiff has been unable to return to assisting his father in his commercial painting business since the incident as he cannot undertake the physical requirements of that work due to his back injury.  I find that he is also significantly restricted in his ability to participate in activities around the home, including gardening.  I accept that this inability to assist his family in the way he previously did, has been a matter of some significance to the plaintiff.
70	The plaintiff was just twenty-one years old when he sustained his lower back injury.  He is now twenty-six years old and will have to continue to live with the sequelae of his lower back injury for many decades.
71	I have considered not only what the plaintiff has lost by reason of the impairment consequences of his back injury, but also what he has retained. In all the circumstances, I find that the pain and suffering consequences of the long-term impairment of the spine are more than significant or marked and at least very considerable when compared with other cases in the range of long-term impairments of a body function.  
72	Accordingly, the plaintiff’s application is granted.  
73	I will hear the parties as to costs.
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