Cicek v Moss Products Pty Ltd [2014] VCC 1895 (19 December 2014)

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CIVIL DIVISION

Revised

Not Restricted

Suitable for Publication

CEMIL CICEK	Plaintiff

v

MOSS PRODUCTS PTY LTD	Defendant

JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Melbourne
DATE OF HEARING:	16 and 17 June 2014
DATE OF JUDGMENT:	19 December 2014
CASE MAY BE CITED AS:	Cicek v Moss Products Pty Ltd
MEDIUM NEUTRAL CITATION:	[2014] VCC 1895

Catchwords: Serious injury application – physical injury to the lower back – psychological or psychiatric injury – Adjustment Disorder with Mixed Anxiety and Depressed Mood – disentanglement of consequences between physical and psychiatric injury – disentanglement between the consequences of the physical injury to the lower back and the hernia injury – pain and suffering damages – loss of economic earning capacity damages – whether statutory definitions have been satisfied.

Judgment: Leave granted to the plaintiff to bring common law proceedings for pain and suffering damages only arising from the injury to his low back. Leave refused in respect of the application to bring common law damages for psychiatric injury in respect of pain and suffering and/or loss of earning capacity. Leave refused in respect of the claim for loss of earning capacity relating to the low back injury.

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A N Murdoch QC with Mr D C Oldfield	Zaparas Lawyers

For the Defendant	Mr C A Miles	Wisewould Mahony

1 This is an application brought by Originating Motion dated 1 March 2013 by the plaintiff applying for leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) to bring proceedings to recover damages for injury suffered by him arising out of, or in the course of, his employment with the defendant and, more particularly, on 17 March 2009.

2 The plaintiff seeks leave to bring proceedings for pain and suffering damages and loss of earning capacity. The plaintiff claims that he has suffered a low back injury during the course of his employment with the defendant. He seeks to bring proceedings to recover damages for pain and suffering and loss of earning capacity as a result of that injury. The plaintiff also alleged that he has suffered a psychiatric injury as a result of his employment with the defendant and seeks leave to bring proceedings for damages in respect of pain and suffering and loss of earning capacity.

5 This application is brought under the definition of “serious injury” contained in s134AB(37)(a) of the Act which requires the plaintiff to prove that he has suffered a permanent serious impairment or loss of body function. The loss of body function in this case is to the plaintiff’s lower back.

6 This application is also brought under the definition of “serious injury” contained in s134AB(37)(c) of the Act, which requires the plaintiff to prove that he has suffered a permanent severe mental or permanent severe behavioural disturbance or disorder. The severe mental or severe behavioural disturbance or disorder is alleged to be Adjustment Disorder with Mixed Anxiety and Depressed Mood.

7 Mr Miles, on behalf of the defendant, identified the issues in this application as follows:

8 The plaintiff was cross-examined extensively during the course of this application. None of the plaintiff’s treating practitioners, nor the medico-legal practitioners were cross-examined in this application.

9 The application is brought under the definition of “serious injury” contained in ss(37)(a) of s134AB of the Act which requires the plaintiff to prove that he has suffered a “permanent serious impairment or loss of a body function”.

10 The relevant considerations which apply to such an application are as follows:

(a) The plaintiff must prove that he has suffered a compensable injury; that is, an injury which he suffered arising out of the course of his employment on or after 20 October 1999.[2]

(b) The injury and the impairment must be permanent; that is, permanent in the sense that it is “likely to last for the foreseeable future”.[3]

(d) Sub-section (38)(c) provides that 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 or losses of a body function, may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”.

(e) Sub-section (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise.

(f) Sub-section (38)(e) provides that in a claim for loss of earning capacity, such loss must be to the extent of 40 per cent or more, both at the date of hearing and permanently.

(g) In conformity with Barwon Spinners, I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent; that is, likely to last for the foreseeable future, and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in sub-section (38). I have applied the principles set forth therein in reaching my conclusions in this application.

11 I am required to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and, in doing so, to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.

12 The plaintiff was born in Turkey in 1966. He is now forty-eight years old. The plaintiff migrated to Australia in 1991 from Turkey.[4]

13 The plaintiff is a married man and lives with his wife and child of the second marriage, aged four. The plaintiff had previously been married and has two children from that marriage, aged sixteen and twelve respectively.

14 The plaintiff is a recipient of the Disability Support Pension from Centrelink. His second wife is in receipt of the Carer Allowance from Centrelink. This pension is based on the disability of the plaintiff.

15 The plaintiff was educated at primary school level in Turkey. Upon arrival in Australia, he has, in 1996, completed a course in die setting at Casey TAFE.[5]

16 The plaintiff has worked as a waiter. The plaintiff has worked as die setter and machine operator with the defendant between his arrival in 1991 in Australia until 2010, when he resigned from his employment.[6]

17 The plaintiff alleges that he injured his back on 17 March 2009. The plaintiff initially had some time off and then returned to full-time duties on 25 March 2009.[7]

19 Upon the diagnosis of his hernia condition, the plaintiff resigned his employment with the defendant. The hernia condition was operated on by Mr Rodgers-Wilson on 15 August 2011.[10]

20 After the plaintiff’s resignation from his employment, he underwent a CT scan of his lumbar spine on 20 April 2010.[11] The plaintiff travelled to Turkey in August 2010 until December 2010. In June and July 2011, the plaintiff returned to Mr Brian Barrett, orthopaedic surgeon, and had an MRI scan of his lower back, which revealed injury to the plaintiff’s back.[12]

21 It is not until February 2012 that the plaintiff is referred to Ms Stefanovic, psychologist, for treatment to do with his psychiatric/psychological difficulties.[13]

22 The plaintiff commenced employment with the defendant in 1991. He worked as, and was trained as, a die setter. The plaintiff had injured his back on 27 October 1995, but returned to work full-time as a die setter after that injury settled.[14]

23 The plaintiff says that he injured his back on 17 March 2009. The plaintiff set out the circumstances of his injury in his affidavit dated 24 September 2012 as follows:

24 The plaintiff gave evidence that he continued to work at the defendant’s premises until he was diagnosed with hernia injuries in April 2010. He was given a certificate for the hernia operations to be off work on 16 April 2010 by his general practitioner, Dr Le. The plaintiff then attended Dr Tokman, who sent him for a CT scan of his lower back. The CT scan was performed on 19 April 2010. The plaintiff maintained that he did not make a WorkCover claim at that time because he did not know he had the right to do so.[15]

25 The plaintiff then travelled to Turkey between August 2010 and December 2010. Upon his return from Turkey, the plaintiff sought to be re-employed at the defendant’s premises. The defendant declined to re-employ him.

26 Upon his return to Australia, the plaintiff then submitted a Claim Form for injury to his low back and hernias. This Claim Form was dated 27 April 2011.[16]

27 In the running of this case, the defendant was disputing that the back injury related to the plaintiff’s work with the defendant. The defendant had accepted the claim made on 27 April 2011 in respect of the low back and the hernia condition. The plaintiff relied on the authority of Ansett Australia Ltd v Taylor[17] in this regard.

28 The plaintiff sought a serious injury certificate for permanent severe mental or permanent severe behavioural disturbance or disorder. The law in relation to serious injury certification for mental or permanent severe behavioural disturbance or disorders is well settled. In the judgment of the Court of Appeal in Mobilio v Balliotis.[18] the meaning of “severe” was resolved. Brooking JA held, at page 846, that the change in the language from “serious” to “severe” betokens a change in meaning. Brooking JA stated that “severe” was used in the definition as a stronger word than “serious”. In short, the test for the plaintiff to satisfy is a very substantial test before a serious injury certification can be made under this heading.

29 The plaintiff was injured on 17 March 2009. In his evidence, the plaintiff stated that he did not understand that his psychiatric injury, as he referred to it, was related to his low back injury until he went to see the psychologist, Ms Stefanovic.[19] The plaintiff first saw Ms Stefanovic in February 2012.[20] In the period of time between the plaintiff resigning from his employment in 2009 and his first attendance upon Ms Stefanovic, the plaintiff had experienced considerable familial tensions. There were disputes with his ex-wife and her family. He failed in an attempt to migrate to Turkey. He had the financial pressures resulting from his inability to work. The effluxion of time between March 2009 and February 2012, when he first received psychological treatment, indicates that there may be other causes for the plaintiff’s psychological or psychiatric state.

30 The plaintiff is prescribed Tramal and Endep by his medical practitioners. According to his general practitioner, that medication is prescribed for the treatment of his pain and his depression.[21] Dr Peter Pjesivac states in his report dated 28 July 2013 that the plaintiff exhibits evidence of a significant emotional response to his injury. The doctor described this as functional overlay.[22] Dr Pjesivac has been treating the plaintiff as a general practitioner since 8 September 2011.

31 The plaintiff’s psychiatric and psychological treatment has been provided by psychologist, Ms Stojanka Stefanovic, and psychiatrist, Dr Albert Kaplan.

32 Stojanka Stefanovic has provided two reports, dated 11 August 2013 and a very short report dated 14 June 2014. In the first report, the psychologist refers to the financial stresses placed upon the plaintiff as a result of him not working. The psychologist sets out the familial conflict and difficulties. The psychologist notes, in particular, that the plaintiff was suffering from pain and exhibited pain symptoms during the course of sessions. The psychologist’s opinion was as follows:

“His emotional exhaustion and depression are the result of following circumstances: injury, pain, loss of ability to work and lack of support.

Cemil Cicek is a curious and, in a way, ambitious individual. He is an intelligent man and with some improvement of his English it would be possible for him to gain some new skill which could allow him to find physically less demanding job.”[23]

“In my opinion his wellbeing is greatly affected by his pain and depression, both the consequence of his injury at work.”[24]

34 In a later report, the psychologist endorsed the original report, and then stated:

“Since the August 2013, Mr Cicek has continued with his counselling sessions on monthly basis. His physical and mental health did not improve during this period of time. Our work together consists of CBT and support in attempt to prevent more serious depression and passivity that will affect his prospect for rehabilitation.”[25]

35 I conclude from this psychologist’s report that the treatment and diagnosis revolve around the plaintiff’s ability to deal with his pain which he complains of as a physical symptom. The other factors, such as economic pressures and the difficulty dealing with his children from the first marriage and his current marriage, are other pressures in his life. These pressures add to his emotional exhaustion and probably contribute in part to his level of depression.

36 Dr Albert Kaplan is the plaintiff’s treating psychiatrist. He prepared two reports, dated 6 August 2013 and 9 April 2014, in respect of this application. The plaintiff first consulted with Dr Kaplan on 26 June 2013.[26]

37 Dr Kaplan diagnoses the plaintiff as having developed an Adjustment Disorder with Mixed Anxiety and a Depressed Mood. Dr Kaplan’s opinion is that his psychiatric condition is related to his injury and his inability to work. In reaching this diagnosis, Dr Kaplan accepted the plaintiff’s history of feeling demoralised as a result of his chronic pain and physical limitations and the fact that he was deeply worried about his family’s future. Dr Kaplan accepted that the plaintiff suffered from sleep and appetite disturbance and that he was someone who now had diminished libido.

“His psychiatric condition, and in particular his lowered frustration tolerance, difficulties with concentration, and damaged self-esteem, is likely to have an impact upon his capacity to engage in his pre-injury employment or any alternative duties, although this capacity will be largely determined by his physical condition. He is likely to require continued supportive psychotherapy and monitoring of his psychotropic medication long as he suffers from significant symptoms.”[27]

39 In his later report dated 9 April 2014, Dr Kaplan notes that the plaintiff could have increased his dose of the anti-depressant, Endep, which can be beneficial in respect of his pain, to 50 milligrams per day. The plaintiff did not increase his medication to that level.[28]

40 Dr Kaplan’s opinion in his final report was that the plaintiff continued to suffer from an Adjustment Disorder with Mixed Anxiety and Depressed Mood related to his injury, his inability to work, and the other effects the injury has had upon his life. Dr Kaplan’s opinion was that the psychiatric condition of the plaintiff is related to his employment insofar as the physical injury is related to that employment.

41 I conclude from Dr Kaplan’s report that, in his opinion, the plaintiff’s primary difficulty is one of physical injury with resulting and secondary psychiatric or psychological sequelae for the plaintiff.

42 The plaintiff consulted Dr Paul Kornan for medico-legal reporting in respect of his application. Dr Kornan prepared four reports, dated 16 April 2013, 3 September 2013, 22 April 2014 and 16 June 2014.

43 In his first report, Dr Kornan diagnosed the plaintiff as suffering from an Adjustment Disorder with Mixed Anxiety and Depressed Mood. He also diagnosed the plaintiff as suffering from a Pain Syndrome with associated psychological factors. In the latter part of his report, Dr Kornan stated as follows:

“Primarily, his inability to work will be due to physical factors, which are outside my area of expertise. His psychiatric state adds to whatever incapacity exists from the physical factors.

As I understand the situation, the combination of physical factors, and his psychiatric condition, prevents him from working both in his pre-injury duties, and in suitable alternative duties.” [29]

44 In his second report, dated 3 September 2013, Dr Kornan confirmed his previous diagnosis of Adjustment Disorder with Mixed Anxiety and Depressed Mood combined with Pain Disorder with associated psychological factors. In that report, he gave the following opinion:

“His Pain Disorder with Associated Psychological Factors appears to have worsened, and, in my opinion, his Pain Disorder would be preventing him from working. Leaving aside the question of his physical injuries, I think now, with a noticeable Pain Disorder, in itself, from the psychiatric viewpoint, this would prevent him from working.”[30]

45 In his third report, dated 22 April 2014, Dr Kornan gave the following opinion:

“Primarily, Mr Cicek is unfit to work due to physical factors, but those issues are outside my area of expertise. His psychiatric state however, adds to whatever incapacity exists.”[31]

46 Dr Kornan’s final report is dated 16 June 2014. This report was supplementary to the report of April 2014. Dr Kornan stated as follows:

“While it was my view that primarily physical factors prevented Mr Cicek from working, I felt that his psychiatric state added to that incapacity. His psychiatric pain disorder also prevents him from working.

Clearly, it was my view that a combination of physical factors and his psychiatric state prevented him from working. The pain syndrome itself was marked. It would seem to me that both physical and psychiatric conditions prevent him from working.”[32]

47 It is clear from Dr Kornan’s reports that he has swapped and changed around his opinion in relation to the cause of the plaintiff’s difficulties in relation to work, from being physical-related symptoms and pain disorder-related symptoms. When Dr Kornan’s four reports are taken as a whole, it is a fair conclusion to say that Dr Kornan was really relating the plaintiff’s inability to work to be primarily due to physical factors rather than the psychiatric factors.

48 The defendant had the plaintiff examined for medico-legal purposes by Dr Das, psychiatrist. Dr Das prepared two reports, dated 10 August 2012 and 13 February 2013.

49 In his first report, Dr Das diagnosed the plaintiff as suffering from a Mild Adjustment Disorder with Mixed Anxiety and Depressed Mood. He stated that the plaintiff had developed a chronic pain condition related to his back injury.[33] Dr Das noted that the plaintiff was prescribed Tramal and Endep at the time of his examination. In Dr Das’s opinion, the plaintiff had no restriction, from a psychiatric point of view, from returning to suitable alternative duties.[34]

50 In his later report, Dr Das noted that the plaintiff’s diagnosis was still Mild Adjustment Disorder with Mixed Anxiety and Depressed Mood.[35] Dr Das stated that the plaintiff was not restricted by a secondary psychiatric condition for him to return to work to suitable employment. In Dr Das’s opinion, the plaintiff did not require psychiatric treatment, but he considered that a multidisciplinary pain management course, inclusive of a psychologist’s input, would be of some assistance to the plaintiff.

51 The opinion of Dr Das is that the plaintiff suffers from a Mild Adjustment Disorder with Mixed Anxiety and Depressed Mood. Dr Das was clearly of the opinion that the predominant factor in the plaintiff’s complaints was physical injury to his lower back resulting in pain.

52 The defendant asked Professor George Mendelson to assess the plaintiff on its behalf for medico-legal reporting. Professor Mendelson prepared two reports, dated 31 July 2013 and 26 August 2013.

53 The initial report appears to be a complaint by Professor Mendelson about the amount of documentation he was required to read in the preparation of his report. This report was an administrative matter and of no assistance to the court in determining this application.

54 In his later report, dated 26 August 2013, Professor Mendelson outlined a full and detailed history and mental state examination relating to the plaintiff. Professor Mendelson noted that the plaintiff was taking medication of 100 mg Tramal for pain relief and 25 mg Endep to assist him with sleep.[36]

“In my opinion there is no indication that Mr Cicek requires treatment under the care of a consultant psychiatrist or clinical psychologist for any diagnosable mental disorder. He could obtain some benefit from attending a time-limited pain management programme at a reputable multidisciplinary pain management clinic and from learning non-pharmacological methods of pain control.”[37]

56 Professor Mendelson went on to say that he could not determine any diagnosable mental disorder applicable to the plaintiff. He conceded that the plaintiff described some emotional symptoms secondary to the complaints of persistent pain and his current financial position relating to his non-working status.

“In my opinion Mr Cicek could be described as manifesting what has been termed ‘learned pain behaviour’, as discussed in the enclosed editorial from the British Medical Journal. In this situation pain complaints and pain behaviour are reinforced and maintained by environmental factors.” [38]

58 Clearly, Professor Mendelson was not impressed by the plaintiff’s presentation and history in relation to his psychiatric condition. In simple terms, Professor Mendelson found that there was nothing of a psychiatric or psychological injury that related to the employment directly. He went on to say that the plaintiff was not suffering from any diagnosable condition.

59 Based on the medical opinions and the analysis set out in these reasons, I am not satisfied that the plaintiff has proven, on the balance of probabilities, that he has a psychological or psychiatric condition which is of such severity to satisfy the statutory test. The unexplained gap between the time of injury in 2009 and the first treatment for psychiatric or psychological injury in 2012 reinforces this finding. On the basis of the medical opinions in this section of the plaintiff’s application, the use of Tramal and Endep are for pain and assistance with sleep respectively, rather than the treatment of the psychiatric injury. The preponderance of the evidence establishes that, at worst, the plaintiff is suffering a Mild Adjustment Disorder as diagnosed by Dr Das.

60 The application for serious injury certification in respect of psychological and psychiatric injury, both in respect of pain and suffering and loss of earning capacity, is dismissed.

61 In these reasons, I have previously set out the injury the plaintiff says he received to his lower back on 17 March 2009. The plaintiff attended Dr Turnbull, general practitioner, on 19 March 2009 as a result of the injury to his lower back. He also received some physiotherapy treatment at the same practice as Dr Turnbull. The plaintiff was placed on light duties until 25 March 2009, and then returned to full duties full-time from that time forward.

62 The plaintiff attended Dr Le on 27 January 2010.[39] In February 2010, the plaintiff was diagnosed with a gallstone disorder.[40]

63 On 15 April 2010, the plaintiff was diagnosed as suffering from a hernia, after an ultrasound investigation. The plaintiff was referred to the Dandenong Hospital and placed on a waiting list for surgery.

64 On 15 April 2010, the plaintiff resigned his employment with the defendant in this case.[41] The plaintiff, in his evidence, stated that he was planning to go to Turkey, where he was under the impression he had insurance for his health condition to be repaired. It subsequently turned out that the plaintiff was not covered by medical insurance in Turkey and would not be able to receive treatment there for his hernia conditions.

65 On 20 April 2010, the plaintiff had been referred to South Eastern Radiology for a CT scan on his lumbar spine by Dr Tokman. The complaint by the plaintiff at that time was that he had ongoing lumbar back pain radiating to both legs, the left greater than the right. The CT conclusion was:

“L5/S1 mild posterior disc bulging slightly compressing the thecal sac. No focal disc protrusion.”[42]

66 The plaintiff travelled to Turkey with his family between August 2010 and December 2010. He returned to Australia on 8 December 2010.[43] Upon his return to Australia, the plaintiff contacted his previous employer and sought a return to his job. The plaintiff’s evidence about this issue is unsatisfactory and contradictory. The plaintiff in his evidence stated that he was in serious financial trouble and needed employment. He contacted his employer to see if he could possibly get his job back, and if he did he would then see if he could do it. I find that the plaintiff at that time, in December 2010, thought he may be able to continue with his previous employment, but was suffering pain in his lower back.

67 The plaintiff’s evidence is that after he had returned to Australia, he made contact with a law student. The law student advised him that he had a possible claim for his low back injury. The plaintiff maintained in his evidence that he did not know the system for making a claim for workers’ compensation.

68 On 27 April 2011, the plaintiff submitted a Claim Form for his low back and hernia injury.[44] The actual Claim Form in the Court Book is dated 23 April 2010. This is obviously a clerical error at the time. The plaintiff continued to see Dr Tokman in this period after the Claim Form was submitted. The plaintiff’s claim was accepted by the defendant in this case, and he was treated for his hernia condition.

69 On 29 June 2011, the plaintiff attended Mr Barrett, orthopaedic surgeon, for his back condition.[45] Mr Barrett referred the plaintiff for an MRI examination. On 9 July 2011,, the plaintiff underwent an MRI scan of his lumbar spine.[46] The conclusion of the MRI scan on that date was:

“A mild disc bulge at the L5-S1 level shows evidence of annular disruption and contacts but does not displace or compress the right S1 nerve.”[47]

70 The plaintiff’s treatment for his hernia was continuing throughout this period. On 15 August 2011, the plaintiff underwent a hernia operation.[48] The surgeon for the operation was Mr Rodgers-Wilson. The plaintiff, in his evidence, stated that the hernia operation was successful and that he had no ongoing difficulties in respect of his previous hernia condition.[49]

71 After the hernia operation, the plaintiff re-attended his general practitioner, Dr Tokman. The plaintiff was still complaining about back pain at that time. Dr Tokman’s advice was that the plaintiff needed to see a psychiatrist in order to deal with his pain issues. The plaintiff stated in his evidence that he did not want to attend a psychiatrist, and thought that Dr Tokman did not understand his pain.[50] The last time that the plaintiff saw Dr Tokman was on 6 September 2011.

72 The plaintiff had been referred by Mr Barrett, orthopaedic surgeon, to Mr Brighton-Knight, orthopaedic surgeon. On 8 September 2011, the plaintiff attended on Mr Brighton-Knight for the first time.[51]

73 On the same day, the plaintiff commenced seeing Dr Pjesivac as his general practitioner. The plaintiff continues to see Dr Pjesivac to this day.

74 Mr Brighton-Knight, orthopaedic surgeon, referred the plaintiff for an MRI scan of the brain and spine. This examination took place on 30 October 2011.[52] The report comments as follows:

“MRI findings through the brain suspicious for mild demyelination with around eight to nine T2 hyperintense foci in the frontal and parietal lobes.”

75 A recommendation was made for a follow-up study of the central nervous system to be performed.

76 On 3 November 2011, the plaintiff was referred to the pain rehabilitation specialist, Dr Nathan Johns.[53] Dr Johns was of the opinion that the brain pathology was not having an impact on the plaintiff’s pain condition and was unrelated to the back pain suffered by the plaintiff.[54] The plaintiff’s current physical treatment is by way of medication prescribed by Dr Pjesivac. He is currently on a dose of 100 milligrams of Tramal and 50 milligrams of Endep daily. He is also prescribed Panadol Osteo to take three times a day to alleviate his pain symptoms.[55]

77 As previously referred to in these reasons, the plaintiff also undergoes psychological and psychiatric treatment from Ms Stefanovic and Dr Kaplan respectively. I will not repeat that treatment in this section of the reasons for judgment.

78 In this case, the plaintiff relied upon numerous medical opinions to support his application for serious injury certification. The medical opinions are both from treating medical practitioners and practitioners who have prepared reports on a medico-legal basis.

79 Dr Turnbull is not the general practitioner for the plaintiff but in fact worked at the Inter Health Industrial Clinic. The plaintiff first attended Dr Turnbull on 19 March 2009 in respect of his back injury. The plaintiff gave a history consistent with his complaints here in this application that he had injured his back two days prior whilst unloading parts into the remelting pot.

80 Dr Turnbull found that the plaintiff’s back was very stiff on examination. Dr Turnbull’s opinion was that the plaintiff had suffered low back strain which was likely to be muscular in origin.[56] Dr Turnbull re-examined the plaintiff on 24 March 2009 and assessed that the plaintiff was due to resume normal duties on 25 March 2009. That was the last occasion that the plaintiff attended at Dr Turnbull’s clinic.[57] Dr Turnbull’s diagnosis was of muscular strain to the low back with no evidence of neurological deficit. He considered that the plaintiff’s prognosis was excellent.[58]

81 Dr Tokman was the plaintiff’s general practitioner prior to the injury to his lower back and hernia condition. The plaintiff attended Dr Tokman for the first occasion on 29 March 2010 complaining of his low back injury and the development of his hernia condition. On the second visit relating to these conditions on 13 April 2010, Dr Tokman ordered an ultrasound of the lower abdominal region in order to determine the position with the hernias. The plaintiff complained to Dr Tokman that his low back pain had been progressively getting worse, and that he was experiencing radiation of pain into the buttocks and into his lower posterior, thigh and calf.[59]

82 In Dr Tokman’s opinion, in relation to the plaintiff’s chronic low back pain, he was unable to find any clear correlation between the plaintiff’s progressively worsening low back pain and the imaging results.[60]

83 It is clear that Dr Tokman does not support the plaintiff’s claim in respect to his low back pain. The plaintiff, in his evidence, stated that he did not want to go to see a psychiatrist, and Dr Tokman was insisting that was the appropriate treatment. It was on this basis that the plaintiff ceased attending Dr Tokman. I note in the Plaintiff’s Court Book at page 36, that Dr Tokman did send a referral to Dr Hillol Das, psychiatrist, stating that the plaintiff had been suffering from chronic low back pain for six to twelve months, and that such pain was getting worse. The referral to Dr Das was for assessment of the mental state of the plaintiff and any relationship with the plaintiff’s anxiety and his chronic pain.[61]

84 Dr Tokman did refer the plaintiff for a CT scan of his lumbar spine on 20 April 2010. In his clinical notes section of the referral, Dr Tokman referred to ongoing lumbar back pain radiating to both legs, left greater than right.[62] This notation and referral by Dr Tokman confirms the plaintiff’s evidence that at all times he had been complaining of low back pain from the time of the accident.

85 Dr Pjesivac prepared two reports, dated 28 July 2013 and 23 May 2014, in respect to the plaintiff’s application. Dr Pjesivac confirmed that he first saw the plaintiff at his clinic on 8 September 2011.[63] Dr Pjesivac notes that the plaintiff has attended him on a number of occasions complaining of severe lower back pain, left sciatica and depression. He notes that the plaintiff walks slowly and is assisted by a walking stick. On his examination, the plaintiff has a restricted range of movement in his lumbar spine.

“As far as Mr Cicek’s lower back pain was concerned, Mr Brighton Knight’s opinion was that the pain was disproportionate to the small disc prolapse in Mr Cicek’s lumbar spine and recommended further conservative and pain management.”[64]

87 Dr Pjesivac has also referred the plaintiff to Dr Clayton Thomas for rehabilitation and pain management. The plaintiff was unsuitable for that rehabilitation treatment. Dr Pjesivac has also referred the plaintiff to Dr Albert Kaplan, psychiatrist, for his depression and chronic pain treatment.[65] Dr Pjesivac’s diagnosis is:

“Mr Cicek injured his lower back (L5S1 disc lesion and prolapse) and developed bilateral inguinal hernias in the course of his employment. In addition he developed symptoms of depression due to the persistent and disabling lower back pain and left sciatica. In my opinion his work represents a major contributing factor to his injury. Furthermore there is an evidence of a significant emotional response to his injury (functional overlay).”[66]

88 Dr Pjesivac has not, in his reports, distinguished between the physical complaints made by the plaintiff in respect of his lower back and his symptoms of depression and his significant emotional response to the injury, which he calls functional overlay. Whilst I have dealt with the psychological/ psychiatric condition of the plaintiff, this failure to distinguish between those matters makes it very difficult to accept the general practitioner’s opinion in respect of the plaintiff’s ability to return to paid employment.

89 Mr Kokovas prepared a report dated 12 June 2014. Mr Kokovas treated the plaintiff between 2 February 2012 until March 2012. In his report, Mr Kokovas stated that the plaintiff had reduced active movement of his lower back with pain and was tender on palpitation to the same area of his back.

90 Mr Kokovas diagnosed the plaintiff as having suffered a soft-tissue type injury to his lower back. Mr Kokovas had not treated the plaintiff since March 2012 and was unable to say or proffer an opinion about the fitness of the plaintiff to work.[67]

91 Mr Barrett prepared five reports in support of the plaintiff’s application for serious injury certification, dated 30 June 2011, 14 July 2011, 25 July 2011, 27 July 2011 and 8 September 2011.

92 Mr Barrett took a history from the plaintiff that he had no prior low back pain or spinal injuries before the incident on 17 March 2009. Mr Barrett noted, in his first report dated 30 June 2011, that:

“All lower limb reflexes are brisk and symmetrical, his plantars are down going while sensory testing revealed altered sensation throughout the left lower limb and into the left half of his trunk, not of a dermatome pattern.”[68]

93 Mr Barrett ordered an MRI scan of the plaintiff’s lumbar spine which was carried out on 9 July 2011. He noted that the MRI scan revealed that at L5-S1 level, there was some moderate narrowing disc desiccation and a moderate posterior disc bulge and a split in the annulus of this same disc, the bulge being close to both S1 nerve roots.[69]

94 In Mr Barrett’s most substantial report, dated 25 July 2011, he gave the following diagnosis:

“Diagnosis is that of a painful rupture involving the L5-S1 lower most lumbar intervertebral disc, causing a posterior disc bulge that irritates both S1 nerve roots particularly on the left side.

Prognosis is very poor, in the absence of appropriate operative treatment, as lumbar disc ruptures of this severity have insignificant capacity to heal or repair.”[70]

95 Mr Barrett, in September 2011, advised that he had referred the plaintiff on to Mr Michael Brighton-Knight, who was experienced in spinal surgery. Mr Barrett has not seen the plaintiff since 2011.

96 Mr Brighton-Knight prepared two reports in respect of this application, dated 22 September 2011 and 25 September 2011. In Mr Brighton-Knight’s opinion, the plaintiff had developed a significant Pain Syndrome with radiation and neurological symptoms that did not match his spinal imaging.[71] Mr Brighton-Knight’s opinion was that the plaintiff could not be cured or improved by having an operation to his low back. Mr Brighton-Knight referred the plaintiff to Dr Nathan Johns for pain management.

“The examination was very difficult because he has quite marked pain behaviours. ...

I suspect the MRI scans will be normal and I see no role for surgery in this man. While I agree he has some degenerative changes at L5/S1, the signs that were evident, you seem to have resolved substantially and I cannot elicit any evidence of a single S1 nerve root lesion. On top of that, reviewing the MRI scan of his lumbar spine myself, I could not see any clear evidence of S1 nerve root compression and that would be improved with surgical decompression.”

98 In summary, Dr Brighton-Knight was of the opinion that surgery was not suitable for the plaintiff due to his well-developed pain behaviours.

“His pain is disproportionate to the small disc prolapse in his lumbar spine, as is the associated disability and loss of quality of life. He has so far not received any physical therapy and is fearful of seeing therapists as he believes that they will cause more pain and injury. I had a long conversation with him trying to explain chronic pain and that pain does not equal harm and that a lot of his pain is generated from significant back and leg muscle tension, stiff gait and poor movement patterns.”[72]

“Examination was difficult as he displayed multiple pain behaviours and an unwillingness to move the lumbar spine or lower limbs in a consistent manner. On observing him, he did appear to have an adequate range of motion and power in the lower limbs. There was a subjective decrease in sensation in the left foot.”[73]

102 Dr Johns’ opinion was that the plaintiff’s pain was disproportionate to the small disc prolapse in his lumbar spine, as was the associated disability, loss of quality of life, and inability to work. He had developed chronic pain behaviours and was fearful of any exercise.[74]

“Mr Cicek has developed a chronic pain syndrome, although he appears to have another neurological disorder which may, or may not, be contributing to his presentation. This may have resulted in disordered thinking or even pain.”[75]

104 Dr Johns stated that he had only seen the plaintiff on one occasion and was unable to give any opinion as to the capacity of the plaintiff to resume work, as the plaintiff had not been through a multidisciplinary treatment to improve his functional capacity.

105 Dr Johns noted that the plaintiff had no expectation of working in the future and felt completely disabled due to pain.

106 Finally, Dr Johns stated that the plaintiff’s prognosis was poor because the plaintiff was unable to accept his pain and the small nature of the disc prolapse, and seemed to be unwilling to undertake any physical therapy which may help him to improve.

107 Mr Rodgers-Wilson performed the inguinal hernia repair operation on the plaintiff on 15 August 2011.[76] In Mr Rodgers-Wilson’s opinion, the hernia injury and repair would not have an impact on the plaintiff’s ability to resume full physical activity. In his evidence, the plaintiff agreed that his hernia condition has fully recovered.[77]

108 In his report dated 11 December 2012, Mr Rodgers-Wilson stated that he advised the plaintiff that the pain that he was suffering was unlikely to be related to his hernia directly, and that it may be arising from the back condition that the plaintiff complained about.[78]

109 In this case, Mr Rodgers-Wilson’s opinion eliminates the impact of the hernia injury on the claimed back complaint and consequences.

110 The plaintiff was referred to Dr Thomas by his general practitioner, Dr Pjesivac. The plaintiff first visited Dr Thomas on 2 July 2013.[79] Dr Thomas accepted that the plaintiff had complaints of back pain, and thought it was likely to be an annular bulge at the L5-S1 level.

111 Dr Thomas diagnosed the plaintiff as suffering from asymptomatic spondylolysis associated with annular bulge at L5-S1.[80] In Dr Thomas’s opinion, the plaintiff had a capacity to work as long as he avoided stressors and strains on his lower back. He was of the opinion that no interventional treatment could assist the plaintiff.

112 Dr Thomas’s report dated 24 October 2013 is of little assistance to me when it comes to assessing the plaintiff’s capacity to work. The general context of Dr Thomas’s report is that he has formed his opinion without any specific recollection of the patient himself, but went on to say he had a work capacity of 20 hours per week doing light work.[81]

113 The plaintiff was sent to Mr Stephen Doig for medico-legal reporting. Mr Doig prepared a report dated 26 March 2013.

114 Mr Doig noted the opinions of other medical practitioners, and stated as follows:

“I note that the neurologist Dr Senaviratne indicated that his employment was a material contributing factor to the incapacity and that his low back pain has not resolved even though the neurologist did feel that his symptoms were over exaggerated compared to the low back findings. The report of Mr Gale indicated that he felt that he had a chronic pain situation and that that required appropriate treatment as recommended by his treating specialists. I agree with the assessments of these two medical practitioners.”[82]

115 In Mr Doig’s opinion, the plaintiff was a suitable candidate for a pain-management course. As I have previously noted in these reasons, the plaintiff has been unable to successfully access any pain-management treatment.

116 The plaintiff was sent to Mr Flanc for medico-legal reporting. Mr Flanc prepared two reports, dated 26 November 2012 and 13 January 2014.

117 In his first report dated 26 November 2012, Mr Flanc noted that the plaintiff was using a walking stick but walked without a limp.[83]

118 Mr Flanc, on his first examination of the plaintiff, noted that there was no deformity or tenderness on the plaintiff’s lumbosacral spine. He found that there was no wasting of the legs on measurement, and he also found that the knee jerks and ankle jerks were present, equal and very brisk.[84]

119 Mr Flanc considered the medical reports that he was provided with, together with the radiological reports. His opinion in November 2012 was:

“The MRI scan shows significant disc degeneration at the L5/S1 level and in my opinion, the incident of March 2009 has resulted in a significant aggravation of this pre-existing condition in the sense that it became symptomatic.

It is likely that his continuing symptoms are being influenced by non-organic, probably psychological factors but notwithstanding this, there is an underlying degenerative condition of the lumbar spine which has been symptomatic since the physical aggravation of March 2009.”[85]

“The pain involving the left calf may be referred from his lumbar spine but there was no objective neurological abnormality at the time of my examination and the MRI scan did not show any evidence of nerve compression.”

121 In Mr Flanc’s opinion, the plaintiff could not go back to his pre-injury duties; however, he did say that the plaintiff had a capacity for light sedentary part-time duties.[86]

122 In his second report, Mr Flanc confirmed his opinion of the earlier report. In respect of the issue of work capacity, Mr Flanc noted:

“If one considers his physical condition alone, then he may have a theoretical capacity for light part-time sedentary duties providing he could get up and walk around whenever discomfort became more severe.”[87]

123 In summary, Mr Flanc’s opinion is that the plaintiff has aggravated a pre-existing degenerative condition in his lower back as a result of the injury in March 2009. His opinion is if the physical injury alone is looked at, then the plaintiff continues to have a work capacity, albeit in light duties.

124 The plaintiff was sent to Mr Brownbill for medico-legal reporting purposes. Mr Brownbill prepared two reports, dated 11 July 2013 and 30 April 2014. In his first report, Mr Brownbill noted that the plaintiff exhibited, during the course of the interview and examination on 9 July 2013, non-organic components which were marked with abnormal illness behaviour, but no apparent conscious attempt to mislead. Mr Brownbill’s opinion was that the plaintiff had developed an emotional reaction to the resulting back pain and the activity restriction which has perpetuated and accentuated his own perception of pain and activity restriction, the full assessment of which lies outside the neurosurgical province.[88]

125 Mr Brownbill, in his first report, formed the view that the marked emotional response, mixed with the physical condition, has the effect of the plaintiff having no work capacity.[89]

126 Mr Brownbill did not separate the emotional or psychiatric aspects of the injury to the plaintiff from the physical aspects in forming his view about the capacity of the plaintiff to work.

127 In his later report, dated 30 April 2014, Mr Brownbill again noted that the plaintiff demonstrated signs of abnormal illness behaviour. In relation to the work capacity of the plaintiff, Mr Brownbill stated as follows:

“However I noted also that from a theoretical neurosurgical point of view he would be capable of commencing work in a graded fashion that avoided manual labouring type work (heavy lifting, forced spinal mobility, repeated bending or prolonged standing or sitting) and that if any attempt were made at a return to work plan it should be performed under close medical supervision to determine his responses.”

128 Mr Brownbill is an experienced medical examiner, and it is clear from his report that he is of the view that the plaintiff does have a residual work capacity and that it has to be carefully managed to overcome what Mr Brownbill describes as the abnormal illness behaviour.

129 The plaintiff was sent to Mr Mangos for medico-legal reporting. Mr Mangos prepared two reports, dated 30 September 2013 and 30 April 2014. In both of his reports, Mr Mangos was of the opinion that the plaintiff was suffering from a ruptured lumbar intervertebral disc at L5-S1 with the suspicion of a left-sided sciatica. In Mr Mangos’s opinion, the plaintiff was totally incapacitated for any pre-injury employment or alternative duties.[90]

130 The plaintiff was sent to Mr Kossmann for medico-legal examination and reporting. Mr Kossmann prepared a report dated 14 April 2014. Mr Kossmann diagnosed the plaintiff as suffering from discogenic back pain, lumbar spine, on the basis of a mild disc bulge at L5-S1 level with evidence of annular disruption and contacting but not displacing or compressing the right S1 nerve. He also diagnosed the plaintiff was suffering from mild demyelination of the frontal and parietal lobes of the brain.[91]

132 Mr Scott prepared three reports, dated 1 June 2011, 3 October 2011 and 25 October 2011.

“2. Chronic low back pain which is present all the time and worse if he stands or sits for any length of time or performs any pulling or pushing movements or heavy lifting.

134 Mr Scott, when he examined the plaintiff, noted that he walked with a marked left-leg limp, antalgic gait.[93] In the course of the examination, Mr Scott noted that he was unable to carry out an appropriate neurological examination of the lower limbs, as the plaintiff complained of extreme pain with the tapping of one knee reflex which was present.

“The claimant suffers from chronic pain with an abnormal pain response and development of what appears to be a state of chronic invalidism together with a treated left inguinal hernia but with some features suggestive of possible ilioinguinal nerve entrapment and a persistence of a reducible right inguinal hernia which appears to be causing minimal symptoms.”

136 In Mr Scott’s opinion, the plaintiff had no current work capacity by virtue of his chronic painful condition and abnormal pain response, requiring clarification and treatment in a multidisciplinary setting.

137 Dr Seneviratne is a neurologist, and reported on behalf of the defendant on 30 March 2012. The opinion of Dr Seneviratne is:

“His back problems are mainly related to a degenerative disease of the lower back which appears to be quite mild. There is no significant lumbosacral radiculopathy or nerve injury causing these symptoms. The symptoms appear to be over exaggerated to the type of injury/ radiological findings described. In my opinion, he should be able to commence modified working duties at modified workloads and hours.”[94]

138 Dr Seneviratne, in his report dated 15 February 2013, gave the following opinion:

“In my opinion most of his lower back symptoms are related to a soft tissue injuries rather than a significant lumbosacral radiculopathy. It is unusual for a soft tissue injury to persist for such a long time with appropriate treatment. I do not believe that further pain management causes, physiotherapy/hydrotherapy measures or surgery options would improve his condition. In my opinion he is fit to get back to modified pre-injury duties starting from now.”[95]

139 Mr Gale prepared a report dated 6 June 2012 for the defendant. Mr Gale diagnosed the plaintiff as having suffered intervertebral disc disruption in the lumbosacral level in a lifting incident in March 2009. He described this injury as having the appearance to have progressed to the development of a secondary Chronic Pain Syndrome of some type with features of a central sensitisation, and the current clinical picture cannot be explained solely on the basis of symptomatic intervertebral disc disruption.[96]

140 Mr Siu examined the plaintiff on behalf of the defendant for medico-legal reporting purposes. He prepared reports dated 29 January 2014, 21 February 2014 and 19 May 2014. Mr Siu was of the opinion that the plaintiff suffered from a Chronic Pain Disorder.[97]

141 Mr Siu was of the opinion that there was no abnormality on clinical examination, nor was there any correlation between the symptoms expressed by the plaintiff and the pathology shown on the MRI examination. Mr Siu’s opinion was that the pathology on the MRI examination showed age-related degenerative condition.[98]

142 It is clear from Mr Siu’s reports that he does not accept that the level of disability displayed by the plaintiff correlates with the pathology which is demonstrated in the examinations and on MRI.

143 I accept that the plaintiff reported the original injury to his low back in March 2009. It is clear on the evidence that he went to see Dr Turnbull at the industrial medical clinic and complained of low back pain two days after the accident. He was treated for a short time by Dr Turnbull, and returned to full-time duties.[99]

144 The plaintiff has been consistent in his reporting to the various medical practitioners about the circumstances of the accident and his symptomatology. The plaintiff’s ability to work full time from late March 2009 until he resigned in April 2010, with the condition he complained about, is of some concern in the light of his current complaints. Many of the medical examiners refer to the abnormal illness behaviour or functional overlay that is displayed by the plaintiff when he is being examined by them. Indeed, in the course of giving his evidence, it was apparent to all in Court that the plaintiff was making audible noises and moving around in the witness box in a demonstrable manner. In the course of the hearing, I brought this observation to the attention of counsel for both the plaintiff and the defendant.[100]

145 I do not find that the plaintiff is trying to deliberately deceive either the medical practitioners or the Court in this regard. I think a fairer and more accurate description would be that he has decompensated as a result of the injury he received at work and has now engaged in a sick role, or invalidism, as it is described by one of the medical examiners. I do not accept that it is a conscious act on his part to further his claim. This behaviour, however, makes it very difficult to separate out the real symptoms and consequences for the plaintiff from the secondary psychological symptoms or overlay in his presentation.

146 There was no video surveillance of the plaintiff. The plaintiff himself said that he only used his walking stick when he left his family home. A number of the medical examiners note the nature of the limp displayed by the plaintiff and his use of the walking stick when he comes to be examined by them.

147 In conclusion on the plaintiff’s credit, on the whole I accept that he is giving a reasonably honest appraisal of his condition but he tends to exaggerate it by his accepted invalidism.

148 The plaintiff relies on two affidavits, dated 24 September 2012 and 2 June 2014, to set out the consequences of the injury to him.

149 The plaintiff, in his affidavit, states that he has difficulty sleeping at night, and, in particular, when on his right side. The plaintiff states that he wakes several times during the night because of the back pain.[101] As a result of his difficulty sleeping, the plaintiff has been prescribed Endep 50 milligrams to assist with his sleeping.

150 In his second affidavit, the plaintiff states that he could not sleep properly because of the pain, which has made him irritable and anxious.[102] The plaintiff also attests to the fact that he continues to wake at night due to the pain in his lower back. Dr Kaplan is the doctor who originally increased the dose of Endep to assist the plaintiff with his sleep.[103]

151 The fact that the plaintiff continues to have back pain to the extent that his sleep is disrupted is a very considerable consequence for the plaintiff. It has the side-effect of making him anxious and irritable.

152 In his first affidavit, the plaintiff gives evidence that his worst pain is in his lower back. He describes the pain as burning, and there most of the time. He describes that he has difficulty bending, and virtually no twisting is able to occur in his back without causing sharp pain to him.[104] In his later affidavit, the plaintiff describes getting severe shooting pains in his lower back many times throughout the day. He says that the shooting pain only lasts for a few seconds. Otherwise, he says he has constant pain in his low back. He says that the pain is intermittent and goes down his left leg.[105]

153 The plaintiff was consistent in his complaint of pain to the various doctors that have examined him. The plaintiff has been prescribed Tramal and Panadol Osteo for control of his pain.

154 I accept that the plaintiff has constant low-level pain in his lower back as a result of the injury received in March 2009. The experience of pain is a very subjective matter, and in the case of the plaintiff, he has elevated the level of pain considerably by his invalidism reaction to the injury he has received. Nevertheless, I accept that the pain the plaintiff does in fact suffer is a very considerable consequence for him and requires medication to moderate it.

155 The plaintiff is currently prescribed Tramal 100 milligrams per day by his general practitioner, Dr Pjesivac. He is also prescribed Panadol Osteo. Originally, the plaintiff was prescribed Endep by the psychiatrist, Dr Kaplan. The medication level for the plaintiff now is 50 milligrams of Endep daily.[106]

156 The necessity for the plaintiff to be prescribed and take medications at the levels that he now does is a very considerable consequence for him. On all the relevant medical evidence, it is clear that this medication regime will continue into the foreseeable future.

157 The plaintiff is not receiving any ongoing physical treatment. His treatment is limited to the taking of medication to alleviate pain and to assist him with getting some sleep. He continues to regularly see his general practitioner for medication and ongoing counselling.

158 The plaintiff also complains of not being able to perform housework due to his physical injuries.[107] The plaintiff states that due to his low back injury, he is unable to drive for very long periods, and is hence limited to short drives.[108] The plaintiff also gives evidence that his ability to swim has been interfered with by his low back injury.[109]

159 The plaintiff also complains that his low back injury has interfered with his ability to have sex with his wife.[110] I note that he has not sought any assistance from his doctor or a neurologist to assist him with his problems with having sex.[111]

160 After consideration of all the evidence, and taking into account all the consequences suffered by the plaintiff as a result of his low back injury and the referred pain into his leg, I am satisfied that such consequences, when judged by comparison with other cases in the range of possible impairments, can be fairly described as being more than significant or marked and as being at least very considerable. The plaintiff has satisfied the statutory test for serious injury for pain and suffering damages.

161 In order to establish that the plaintiff be given leave to bring proceedings in respect of a loss of earning capacity, he must establish that:

162 The measurement of loss of earning capacity is set out in paragraph (f), which requires a comparison between:

163 The former must be calculated by reference to the six-year period specified in s134AB(38)(f). These earnings consist of a gross income expressed at an annual rate that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion had the injury not occurred.

164 The plaintiff has not worked since he resigned his employment in April 2010. Upon his return from Turkey at the end of 2010, the plaintiff sought to obtain his old job back. This attempt by the plaintiff to resume his normal employment is an example of the plaintiff’s understanding of his capacity to work at that time. I do not accept that part of his evidence where he says he was just seeing whether or not he could get his job back and would then deal with how he was going to work in that capacity.

165 The onus is on the plaintiff to satisfy the Court that he has suffered a 40 per cent loss of earning capacity. This is done by comparing a “without injury” earning capacity and an “after injury” earning capacity. The medical opinions in respect of the plaintiff’s capacity to work rely very heavily on the plaintiff’s complaints to them and an accurate history given to them by him. The plaintiff has made no effort at all to re-engage in the workforce since making the claim in this case.

166 The plaintiff relies upon the report of Leonie Schneider, vocational assessor, dated 6 August 2013 to establish his current work capacity. Ms Schneider comes to the conclusion that the plaintiff has no current work capacity in his pre-injury employment, nor does he have any capacity to be employed in a range of suitable alternative employment.[112] Ms Schneider states that her opinion is based on the physical difficulties faced by the plaintiff to the exclusion of all psychiatric and psychological factors.

167 In the course of her report, which is very lengthy, Ms Schneider provides a detailed history of all the medical opinions. I will not repeat them here. I have, during the course of the reasons in respect of this physical injury, referred to doctors’ opinions of the capacity of the plaintiff to work.

168 The plaintiff has not made any effort to engage in a pain-management course, although these have been in effect offered to him. His responses to the pain-management people have dissuaded them from him being a candidate for such rehabilitation. His evidence in Court was clearly that he had not attempted to engage in or obtain any other employment since his claim in April 2011. I am not satisfied, on the basis of the evidence of the plaintiff or of the medical evidence, that he has demonstrated any genuine attempt to engage in employment of an alternative nature or for part-time purposes. I do not accept that the extent of his low back injury is the cause, or a cause, of his inability to work or even attempt to work.

169 In respect of the plaintiff’s ability to work or his motivation to work, there are a number of other factors that are involved in this assessment. First of all, the plaintiff has a functional overlay and invalidism-type behaviour. That is not part of his physical injury. It is the psychological aspect secondary to his physical injury, and I do not accept that it is appropriate to use that fact in assessing his inability to work or his current capacity to engage in employment.

170 The plaintiff also has a very complicated domestic relationship situation. He has a previous marriage, and children that he is responsible for paying maintenance to. It became clear during the course of the evidence that the fact that he does not work means that he is only liable to pay a very small amount of maintenance, and that he is financially better off on the Disability Pension and paying the lower maintenance for his children than if he were employed in a traditional sense and had to pay maintenance according to the family law formulas. This acts as a disincentive to the plaintiff to attempt to return to employment either full-time, part-time, or in alternative duties.

171 I also find that the plaintiff has entered into this invalidism, and because of that, refuses to try to re-engage in the workforce.

172 Whilst I am satisfied that the plaintiff has suffered injury, and as a result of it, has proven to the requisite standard that certification for pain and suffering damages is appropriate, I am not satisfied that he has satisfied the test for loss of earning capacity. I find that the plaintiff has retained a capacity to engage in light-duty employment or alternative duties into the foreseeable future, even with his current low back injury.

173 The plaintiff presented his case on the basis that he was a total economic loss, in the sense that he had no capacity to work whatsoever. I do not accept that position.

174 The plaintiff’s application for serious injury certification for psychological and psychiatric injury, both on a pain and suffering basis and on a loss of economic capacity basis, is dismissed.

175 The plaintiff’s application in respect of pain and suffering for a physical injury, in particular the low back injury, is granted.

176 The plaintiff’s application in respect of loss of earning capacity arising out of the low back injury is dismissed.

County Court of Victoria

Cicek v Moss Products Pty Ltd [2014] VCC 1895 (19 December 2014)