Dahoud v Victorian WorkCover Authority [2021] VCC 1903

Judgment: Leave granted to commence a common law proceeding for pain and suffering and pecuniary loss damages.

1 By Originating Motion dated 1 February 2021, the plaintiff ("Mr Dahoud"), pursuant to s327 of the Workplace Injury Rehabilitation and Compensation Act 2013 ("the Act"), seeks leave to issue common law proceedings for the recovery of damages for both pain and suffering and pecuniary loss.[1] The application relates to injuries sustained by Mr Dahoud to his cervical spine on or about 2 February 2016, while working with G J & K Cleaning Services Pty Ltd (trading as GJK Facilities Services) ("GJK") bending, lifting, reaching and pulling and moving hard rubbish, including a large waterlogged mattress and furniture.

2 Mr Dahoud claims he suffered a "serious injury", being an impairment or loss of body function to his cervical spine, within the meaning of paragraph (a) of the definition of "serious injury" contained in s325(1) of the Act. The injury manifested as an aggravation injury to his neck and cervical spine. It caused disc and facet joint arthropathy, a C5-6 disc/osteophyte complex, a C6-7 disc/osteophyte complex with moderate left foraminal stenosis, as well as referred symptoms into the left arm and hand, chronic C7 radiculopathy, sleep disturbance due to pain, aggravation of stress, and anxiety and depression.

3 Mr Dahoud further claimed he suffered a "serious injury" within the meaning of paragraph (c) of the definition of "serious injury" contained in s325(1) of the Act, but at the hearing this was not pursued.

4 To succeed in this application, Mr Dahoud must satisfy the Court, on the balance of probabilities, that he has suffered a "serious injury" as defined in the Act in terms of the pain and suffering or the pecuniary loss consequences of his injury.

5 Having considered all the evidence, I have formed the view that:

(a) Mr Dahoud sustained a neck injury in late 2013, being multilevel cervical spondylosis, with a predominant abnormality at C6-7, presenting as an asymmetric left-sided broad-based disc bulge. Also, that he had uncovertebral osteophytes and a superimposed left foraminal disc protrusion. These contributed to severe left C6-7 neural foraminal stenosis and compromise of the exiting C7 nerve root at that level;

(b) The 2013 neck injury had resolved at the point in time immediately prior to the 2 February 2016 aggravation injury, such that it was asymptomatic;

(c) On 2 February 2016, Mr Dahoud suffered an injury to his cervical spine;

(d) Having considered the radiological evidence and the evidence from Mr Dahoud's treating doctors, as well as the independent medico-legal opinions, the injury Mr Dahoud suffered on 2 February 2016 rendered his cervical spine symptomatic, such that the injury was an aggravation of the pre-existing degenerative changes in his cervical spine;

(e) There is a substantial organic basis for the relevant impairment consequences relied upon by Mr Dahoud and consequently there is no need to disentangle the physical and psychological contributions to those consequences;

(f) The injury sustained by Mr Dahoud is a "serious injury":

(i) The claimed injury has caused Mr Dahoud a loss of earning capacity of at least 40 per cent. Mr Dahoud has made reasonable attempts to return to the workforce and to participate in rehabilitation and training; however, he does not have capacity, in a real and practical sense, to return to, or perform, his pre-injury employment. He is also unable to perform any of the alternative suitable employment options identified by the Recovre Vocational Assessment Report;

(ii) He is permanently unlikely to be able to perform any role consistently and reliably;

(iii) The pain and suffering consequences of the aggravation injury are also at least "very considerable". Mr Dahoud has ongoing pain. He is unable to return to his pre-injury employment. His sleep is disturbed. He is unable to perform many activities of daily living. While he no longer takes Endep, Lyrica or prescription medication, he self-medicates with illicit substances, sometimes takes over-the-counter Nurofen, and uses Voltaren or similar creams, as well as heat and ice packs. Additionally, he said he now self-manages his pain using marijuana; and

(g) Mr Dahoud's injuries will persist for the foreseeable future and consequently are permanent.

6 To begin with, it is necessary to identify the nature and extent of the injury relied upon and the consequent impairment of the body function said to have been produced.[2]

7 Pursuant to s327 of the Act, a worker may recover damages in respect of an injury arising out of, or in the course of, or due to the nature of, employment. The effect of this is that an injury cannot conform with the statutory definition and satisfy one of the conditions of compensability if not "arising out of, or in the course of, or due to the nature of, employment".

8 An admission that a plaintiff suffered a compensable injury involves an admission that the injury arose out of, or in the course of, employment.[3] Such an admission should ordinarily be regarded as very significant, but it is not conclusive and can be rebutted by the defendant calling evidence to explain its previous conduct.[4]

9 If the injury is compensable in the sense that it arose out of employment, the injury and resulting impairment under paragraph (a) of the definition of "serious injury" must also be permanent in the sense that the injury is "likely to last for the foreseeable future".[5] This will inevitably involve an element of prediction into the future.

10 Should there exist both a pre-aggravation injury and an aggravation injury, leave to issue proceedings will only be granted if the aggravation injury is itself a "serious injury", as defined in the Act.[6] Applying the principles in Petkovski v Galletti,[7] the consequences of the aggravation injury must be assessed. The plaintiff must establish the pre-existing injury and also what injury was caused by the subsequent workplace accident.[8] The consequences of the pre-existing injury must then be separated from the alleged aggravation injury.[9] Whether the additional long-term consequences of impairment (or loss) of a body function[10] consequent upon the aggravation injury to the plaintiff are "serious", in the sense they can be fairly described as "more than 'significant' or 'marked'" and "at least very considerable" when judged in comparison with other cases in the range of possible impairments or losses,[11] can then be determined.

11 Pursuant to s325(2)(h) of the Act, in assessing the pain and suffering consequences of a workplace injury, the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purposes of paragraph (c) of the definition of "serious injury" and not otherwise. It follows that to establish serious injury, the plaintiff must satisfy the Court, on the balance of probabilities, that the organically-based physical pain and suffering consequences - as opposed to psychological or non-organic consequences - satisfy the statutory criterion of being "more than 'significant' or 'marked'" and "at least very considerable".

12 It is well established that in serious injury applications where the prospect of the relevance of psychological or psychiatric consequences of a physical injury is raised, a two-step process of analysis should be adopted.[12] The first step is to ask whether there is a substantial organic basis for the relevant consequences relied upon.

13 The fact that a plaintiff has previously coped with an injury, but is not coping with a later injury, suggests that the symptoms attributed to the later injury have a substantial organic basis sufficient to satisfy the "serious injury" threshold.[13] If there is a substantial organic basis for the claimed consequences, and if the relevant consequences satisfy the statutory criterion, then the application will succeed without the need for any "disentangling" of the physical versus the psychological manifestations of those consequences.[14] If, however, that first question is not - or cannot be - answered affirmatively, then the applicant will need to proceed to the next step and "disentangle". That is, the applicant will need to be able to separate the physical manifestation of the pain and suffering from the psychological to satisfy the Court that the "pain and suffering consequences" attributable to the physical injury satisfy the statutory test.[15]

14 Assessment of the "pain and suffering consequences" of an injury requires the Court to assess a range of factors. The Court must evaluate the extent to which pain limits the plaintiff's functioning, performance of ordinary activities, physical capabilities and enjoyment of life. The plaintiff's experience of pain including the intensity, frequency, and duration of the pain must be assessed. This is discharged by considering the plaintiff's own personal account of their pain (both in court and to doctors); how the plaintiff manages the pain (for example medication, rest, seeking medical treatment); what the doctors say about the extent and intensity of the pain, and what the objective evidence conveys about the disabling effects of the pain.[16]

15 Other matters which may also be relevant include the effect of pain on the plaintiff's sleep; mobility; cognitive functioning; capacity for self-care and self-management; performance of household and family duties; recreational activities; social activities; sexual life, and enjoyment of life.[17]

16 The inability of a worker to engage in employment which he or she undertook is a matter that may properly be taken into account in assessing pain and suffering and loss of enjoyment of life.[18]

17 The credit of the plaintiff will often be critical to the resolution of a serious injury application.[19] The weight to be attached to the plaintiff's account of pain will be affected by an assessment of the plaintiff's credibility.[20] A plaintiff's credibility is relevant, not only to whether his or her evidence should be accepted, but it is also relevant to the reliability of the medical evidence. The opinions of the doctors are essentially dependent on the credibility and reliability of the history given to them by the plaintiff.[21] Medical opinions by experts may be of reduced weight if the plaintiff is shown to be an inaccurate historian.

18 If a court determines that a plaintiff is not a reliable witness, either in general, or in respect of certain matters, this does not mean that all medical opinions relied upon by the plaintiff should be disregarded automatically.[22] The opinions of doctors depend on credibility, but it would be remarkable if there were not variations in accounts given over time to different doctors.[23]

19 Ultimately, the assessment of whether the pain and suffering consequences of an injury are "serious" involves matters of degree, impression, and a value judgement[24] as to relative incapacity by consideration of the whole of the evidence,[25] including objective evidence of diagnostic tests which are unaffected by the plaintiff's credit.[26]

20 If the consequences of an injury are serious for the purposes of s325(2)(b), then, s325(2)(e)(i) and s325(2)(e)(ii) of the Act, in relation to loss of earning capacity, require that a court must not grant leave under s335(2)(d) to bring proceedings on the basis the worker has established the loss of earning capacity required by paragraph (b), unless the worker also establishes that:

"(i) ... the worker has a loss of earning capacity of 40 per cent or more, measured ... as set out in paragraph (f); and

(ii) the worker... will, after the date of the decision or of the hearing, continue permanently to have a loss of earning capacity which will be productive of financial loss of 40 per cent or more;"

21 Section 325(2)(f) of the Act determines the calculation of the relevant loss of earning capacity by comparing the gross income the worker is earning, or is capable of earning, in "suitable employment" at the date of the hearing ("after injury earnings"); and the gross income the worker was earning, or was capable of earning, in suitable employment:

"... during that part of the period within 3 years before and 3 years after the injury as most fairly reflects the worker's earning capacity had the injury not occurred." ["without injury earnings"].

22 Suitable employment is defined in s3 of the Act to mean employment which the worker is currently suited to performing, having regard to a range of factors. The factors to be considered include:

(i) the nature of the worker's incapacity and the details provided in medical information including the Certificate of Capacity;

(ii) the nature of the worker's pre-injury employment;

(iii) the worker's age, education, skills and work experience;

(v) any plan or document prepared as part of the worker's return to work planning process;

(vi) any occupational rehabilitation services that are being, or have been, provided to, or for, the worker, regardless of whether the work or the employment is available;

(vii) or whether the work or the employment is of a type or nature that is generally available in the employment market.

23 The defendant bears the evidentiary onus to establish the existence of jobs which satisfy the characterisation of "suitable employment" and are within the plaintiff's "after injury" capacity.[27]

24 Section 325(2)(g) further provides:

"a worker does not establish the loss of earning capacity required by paragraph (b) if the worker, taking into account the worker's capacity for suitable employment after the injury and, where applicable, the reasonableness of the worker's attempts to participate in rehabilitation or retraining -

(ii) after rehabilitation or retraining, would have -

a capacity for any employment including alternative employment or further or additional employment which, if exercised, would result in the worker earning more than 60 per cent of gross income from personal exertion as determined in accordance with paragraph (f) had the injury not occurred;

25 In Barwon Spinners & Ors v Podolak,[28] Ashley and Kaye JJA considered what was meant by the phrase "suitable employment" in s5 of the Accident Compensation Act 1985. Their Honours observed that the concept:

"... looks to the possibility of employment after injury; hence the reference to 'work for which the worker is currently suited'. Age, education and experience are among the matters relevant, as also are the nature, and no doubt extent, of the worker's incapacity and, of course, pre-injury employment. Obviously employment is not to be regarded as 'suitable' if situated too far from the worker's place of residence; and so a specialist factory in Mildura will not ordinarily be regarded as providing 'suitable employment' for a worker resident in Melbourne. The expression 'whether or not that work is available' emphasises that the definition is looking to the capacity to work, meaning the physical capacity for employment. If the worker is of an age, is sufficiently skilled, perhaps after rehabilitation, is sufficiently close by and is able physically to do a particular job, then that is 'suitable employment', whether or not the job is currently available."

26 In Richter v Driscoll & Ors,[29] the definition of "suitable employment" again arose for consideration in the context of an appeal from a judge's order dismissing an originating motion seeking an order, in the nature of certiorari, to quash the opinion of a Medical Panel. Ashley and Kaye JJA considered that the question of whether "suitable employment" should be given a different meaning than that given to it in Barwon Spinners[30] did not arise. Osborn JA said (at paragraph [146]):

"... Suitable employment means employment in work for which the worker is currently suited. The Act then provides for factors which must be considered in assessing whether the worker is able to return to employment in work for which the worker is currently suited. The factors listed in paragraphs (a)(i) to (iv) go to characteristics of the worker bearing on his or her employability and are not limited to physical capacities. The factors listed in paragraphs (a)(v) and (vi) go to factors related to processes intended to facilitate a return to work either by way of work plans or rehabilitation services. The significance of return to work is emphasised in the objects of the Act. The outcome of these processes may or may not have been successful, but, for present purposes, these factors are relevant in that they go to the capacity of the worker to return to work in employment in the broad sense that I have sought to explain."

27 In Lang v Spendless Shoes Pty Ltd,[31] the Medical Panel erred in disregarding the plaintiff's opioid dependence because it considered, wrongly, that it was bound to do so. Properly, the Medical Panel was entitled to take account of the plaintiff's opioid dependence. The fact that the plaintiff was able to engage in employment prior to the work injury despite opioid dependence, does not establish that a combination of opioid dependence and current consequences of a work injury would not incapacitate a plaintiff for work.

28 At the hearing, Mr Dahoud gave evidence and was cross-examined.

29 In addition, a series of medical records, diagnostic tests, and other documents, as well as reports from treating practitioners and independent medico-legal experts, were tendered by both Mr Dahoud and the defendant. A short extract of video surveillance footage obtained during surveillance on 30 April 2021 (11.30am to 2.00pm), 10 May 2021 (2.00pm to 6.15pm) and 19 May 2021 (10.00am to 1.30pm) was admitted and played by the defendant. Further surveillance was conducted on 24 December 2020, 28 December 2020, 12 January 2021 and 20 April 2021, but no footage of the plaintiff was obtained.

30 Mr Dahoud was born in June 1964 and is currently fifty-seven years of age.

31 He was born in Lebanon and came to Australia as a six-year-old.

33 He had issues with substance abuse and has convictions for assaults committed in his teens and early twenties.

34 Following completion of his schooling, Mr Dahoud did some clerical work, worked as a storeman, a youth worker, administration assistant, gardener, labourer, and disabled children's assistant. He also played and coached football. During several periods he was unemployed.

35 Mr Dahoud has a partner and together they have two children, currently aged three and four.

36 Mr Dahoud was employed as a full-time cleaner by GJK from July 2003 until 2018. He performed cleaning duties at Department of Housing residential sites, including high-rise buildings. The work was physical and involved sweeping, mopping, buffing, washing windows, cleaning walls, and removing rubbish, including hard rubbish.

37 In 2012, he developed a right elbow injury because of his cleaning duties. He was treated by Dr Andrew Daff, sports and exercise physician, and Ms Emily Riglar, a physiotherapist. He was off work from late January 2013 until early February 2015.

38 Ms Riglar prepared a report dated 27 August 2013. This noted that Mr Dahoud had stiffness in his upper spine.

39 In late 2013, while off work and receiving treatment for his right elbow injury, Mr Dahoud developed some neck pain, and had pain going into his left shoulder and down his arm.

40 Mr Dahoud saw Dr Daff on 4 February 2014. At that time, Mr Dahoud's right elbow had recovered satisfactorily, but he had developed gradual onset of increasing left neck pain referring to his shoulder blade. He had numbness and shooting pain through his radial arm and forearm into his fingers. His presentation was suggestive of a C6 radiculopathy. He was commenced on Endep and Lyrica and an MRI scan of his cervical spine was arranged.

41 Mr Dahoud had an MRI scan on 7 February 2014. This showed that he had multilevel cervical spondylosis, a predominant abnormality at C6-7, where an asymmetric left-sided broad-based disc bulge, uncovertebral osteophytes and superimposed left foraminal disc protrusion were contributing to severe left C6-7 neural foraminal stenosis, and compromise of the exiting C7 nerve root. Moderate right-sided neural foraminal stenosis and minor left-sided cord compression were also seen at that level.

42 A review of the MRI scan with Mr Dahoud on 10 February 2014 showed a left-sided C6-7 disc with C7 nerve root irritation.

43 By 12 March 2014, the cervical disc and left arm were slowly improving. Clinical assessment of Mr Dahoud's right elbow showed it had made a full recovery. Dr Daff reported that Mr Dahoud's case was complex, with significant ongoing psychosocial issues involving family bereavement, financial struggles, and loss of self-esteem by virtue of not working.

45 By 2 April 2014, Mr Dahoud's right extensor tendinopathy had made a full recovery.

46 In mid-2014, Mr Dahoud attended a psychologist with anxiety, depression, and alcohol abuse. This followed periods of grief and stress following the illness and subsequent death of Mr Dahoud's father.

47 Dr Daff continued to see Mr Dahoud monthly. By the end of 2014, Mr Dahoud's employer, GJK, indicated that there was a possibility of a return to work.

48 Mr Dahoud's right elbow pain eventually settled and on 5 February 2015, Dr Daff saw Mr Dahoud again and cleared him to return to work.

49 Mr Dahoud returned to work in February 2015. Despite being certified for modified duties, he was performing his full pre-injury duties.

50 Shortly after Mr Dahoud returned to work with GJK, Dr Daff prepared a report dated 13 April 2015 for the purposes of conciliation in respect of Mr Dahoud's right elbow injury. This detailed Mr Dahoud's presentation, diagnosis, consultations and medical history. It confirmed that Mr Dahoud had initially presented to Dr Daff on 9 April 2013, with right elbow extensor tendinopathy, which was confirmed by an ultrasound. Mr Dahoud's recovery was complicated by personal, emotional, and psychosocial issues, including chronic pain, anxiety and aggrievement. However, he was in a good emotional and physical state when he was certified by Dr Daff to return to work on 5 February 2015.

51 After he returned to work, Mr Dahoud said that he was bullied and harassed by his new supervisor, Mirco. He was anxious and distressed and had occasional days off work. He took a lengthy holiday from 20 November 2015 to 17 January 2016, and said he felt much better, but when he returned to work, the bullying from Mirco continued. He was prescribed Lexam for depression and anxiety by his general practitioner, Dr Robin Wilson.

52 On 2 February 2016, while performing cleaning duties at the Department of Housing premises at 6 River Street, Richmond, Mr Dahoud was required to remove some hard rubbish. This involved lifting a large and heavy waterlogged mattress and several items of furniture. As he was lifting and dragging the waterlogged mattress, he felt left-sided neck pain and pain in the region of his shoulder blade and chest. He continued working doing lighter duties. The pain persisted. It was still present and worse the next morning. He worked in pain the next day.

53 He went to work on 4 February 2016. He had a meeting with management over the continued bullying by Mirco. He left work due to the ongoing left-sided neck pain. He consulted Dr Wilson and was told to leave work.

54 At the time of his injury, he had earned $25,273 in the thirty-one weeks of the financial year to 3 February 2016, an annual equivalent of approximately $42,394 gross per annum.

55 Following his injury and subsequent treatment, which is detailed below, Mr Dahoud resumed full-time light duties with GJK on 17 May 2016, cleaning at RMIT. This involved sweeping, dusting, wiping down and restocking the showers and toilets.

56 From mid-2018, Mr Dahoud was employed as a cleaner and general maintenance person by Pascoe Vale Heights Management Pty Ltd ("PVHM"), a nursing home. His duties included gardening, labouring, and maintenance. He struggled due to neck and left arm pain. His employment was terminated in October/November 2018.

57 Since then, Mr Dahoud has been receiving a Centrelink parenting allowance.

58 On 5 February 2016, Mr Dahoud made a worker's compensation claim.

59 On 30 July 2018, Mr Dahoud made a claim for impairment benefits. This was accepted by Allianz Australia Workers' Compensation (Victoria) Limited ("Allianz") on 25 March 2019.

60 Following his injury on 2 February 2016, Mr Dahoud saw Dr Wilson, general practitioner. He was prescribed Endep and Lyrica. Dr Wilson put him off work.

61 On 18 February 2016, Dr Wilson, wrote a letter of referral of Mr Dahoud to Dr Daff, who he had previously seen. He noted the circumstances of the incident on 2 February 2016 and suggested that the injury was a recurrence of the same pain Mr Dahoud had experienced the previous year when he had consulted Dr Daff and had x-rays.

62 Mr Dahoud saw Dr Daff on 22 February 2016, complaining of ongoing pain in the left side of his neck, at times with shooting pain down his left arm. He also had ongoing pain in his shoulder blade and left upper chest regions. He was sleeping very poorly. He had severe anxiety and depression because of the bullying. Dr Daff referred him to a psychologist, Ingrid Morgan. Dr Daff also referred him for physiotherapy with physiotherapist, Ms Riglar.

63 After Mr Dahoud resumed full-time light cleaning duties at RMIT with GJK on 17 May 2016, he continued to have ongoing neck and left arm pain. He remained stressed. He self-managed his neck injury using drugs and substances. He continued to see Ms Morgan.

64 On 29 May 2017, Mr Dahoud attended Dr Hin Chiu ("Dr Hin"), a general practitioner at La Trobe Street Medical, who was a colleague of Dr Wilson. Dr Hin prepared a GP Mental Health Plan for him and prepared a letter of referral to a psychologist. The letter of referral referred to "nerve damage in neck shooting down to chest and left shoulder ... since Feb 2016".[32] It also referred to "bad right elbow - tendon disintegrated" and:

65 Mr Dahoud was recommenced on Endep and Lyrica. He also took some Voltaren. He then reverted to self-treatment with various drugs and substances. He used ice packs and heat packs and took over-the-counter Nurofen occasionally.

66 Mr Dahoud says that he struggled in his employment. In early to mid-2018, he resigned from GJK to enable him to receive backpay which was owing.

67 After Mr Dahoud resigned from employment with GJK in early 2018 and commenced, and then was terminated from, his employment with PVHM in October/November 2018, he continued to be troubled by deteriorating neck pain. He self-managed the pain with drugs and other substances. He continued to use heat and cold packs.

68 On 17 September 2019, Mr Dahoud attended Dr Ha Tran, general practitioner, with ongoing and constant pain in the left side of his neck. He had occasional shooting pain down his left arm and spreading into his chest region. He was referred to a neurologist, Dr Sam Law.

69 Mr Dahoud saw Dr Law on 7 October 2019. At that time, Mr Dahoud was consuming a considerable amount of alcohol. He continued to have left-sided neck pain, shoulder blade and chest tightness, and shooting pains down his left arm. He had numbness and pins and needles in his left hand. He was referred for an MRI scan.

70 An MRI scan of his cervical spine was taken on 15 October 2019. This showed that the alignment was within normal limits. Multilevel degenerative disc and facet arthropathy was observed, and multilevel disc desiccation. At C5-6, a small posterior disc-osteophyte complex indented the ventral CSF space. Uncovertebral osteophytes caused mild narrowing of the exit foramina. At C6-7, there were similar changes with the posterior disc-osteophyte complex indenting the ventral CSF space. There was moderate left and mild right foraminal stenosis due to uncovertebral osteophytes.

71 Nerve conduction studies were performed on 30 October 2019, which showed evidence of chronic C7 radiculopathy.

72 Mr Dahoud consulted Dr Andrew Lin on 18 November 2019. Following the consultation, Dr Lin prepared a letter in relation to the consultation. He detailed that Mr Dahoud was "struggling with noise and vibration from a boiler room above his apartment". He was concerned about "all night noise" and the fact that he was "unable to sleep which has exacerbated his anxiety and depression". Dr Lin noted that "[c]onsequently this has affected his ability to engage with work and he tells me that he has lost his job".[34]

73 In 2020, Mr Dahoud began to see Dr Lin at Myhealth in Carlton. He was certified unfit for work. He was referred to a pain management program at Empower in Heidelberg, but this was not undertaken due to WorkCover funding issues. He was referred to Dr Daff, who he sees monthly. He is taking Lyrica and Endep. He has weaned himself off drugs and other substances.

Dr Andrew Daff - musculoskeletal physician/sports and exercise physician

74 On 2 February 2016, Mr Dahoud was referred again by Dr Wilson to Dr Daff in respect of the workplace incident. Dr Daff prepared several reports after Mr Dahoud's injury, which were tendered.

75 On 22 February 2016, Dr Daff prepared a letter which noted the earlier right elbow injury and the 2014 left neck and upper limb symptoms. These were noted to have resolved completely within three months. Based on his assessment of Mr Dahoud on 22 February 2016, Dr Daff considered that:

"... [Mr Dahoud] probably has a different pathology, possibly having more facetogenic based neck pain in the setting of psychosocial unhappiness with a background of depression and anxiety."[35]

76 Dr Daff recommended that Mr Dahoud undergo physiotherapy to his cervical spine with Ms Riglar and changed his medication.

77 In his letter of referral to Ms Riglar dated 22 February 2016, Dr Daff noted Mr Dahoud's early 2014 presentation with neck and left arm pain. The February 2016 presentation, however, was observed to be different. It had a strong facetogenic component in the setting of psychosocial stressors.

78 Dr Daff confirmed in a letter to Allianz dated 21 April 2016, that his consultation with Mr Dahoud on 22 February 2016 was not in respect of Mr Dahoud's right elbow but was related to a new condition.

79 On 28 April 2016, Dr Daff wrote to Ms Riglar again. He referred to the fact that Mr Dahoud had left-sided cervicogenic pain. He considered that purely on its physical merits, the left-sided cervicogenic pain should have been amenable to treatment. He noted the "long and protracted course" to get Mr Dahoud to recover from the previous "relatively straight forward elbow condition complicated by many psychosocial contributors". He also referred to Mr Dahoud's continuing issues at work. Although Mr Dahoud wanted to return to work, Dr Daff identified that he would not do so under his then current supervisor.

80 On the same day, Dr Daff also wrote to Dr Wilson. He reported that Mr Dahoud still had left-sided neck pain. Dr Daff considered that Mr Dahoud may have had facet joint irritation with some neural irritability. Dr Daff noted his opinion that the major issue with Mr Dahoud related to psychosocial contributors, including aggrievement and animosity about his work, and particularly his supervisor. His view was that the physical element of the injury should recover predictably. He recommended that Mr Dahoud return to work.

81 On 18 February 2020, Dr Daff prepared a letter to Dr Lin, general practitioner, at Myhealth Medical Centre. Dr Daff noted having "re-acquainted" himself with Mr Dahoud that day, as he had not seen Mr Dahoud since 28 April 2016.

82 Dr Daff recounted Mr Dahoud's history of a "twinge in the neck with subsequent left shoulder blade and anterior upper chest pain" in 2016 which Dr Daff considered was facetogenic cervical pain. There were also psychosocial elements that he thought drove centrally mediated pain.

83 Mr Dahoud reported to Dr Daff that the symptoms of his work-related injury on 2 February 2016 never resolved. Mr Dahoud described pain like a "'flame eating my neck', pain starting in the lateral aspect of his left neck and referring to his anterior left chest and left shoulder blade, the latter an 'unbearable shooting'" pain. At the time, Mr Dahoud was on Endep and Lyrica. Mr Dahoud informed Dr Daff that he had seen a neurologist, and an MRI scan had been taken, which had shown similar findings to the previous cervical scan in 2014, suggestive of C7 nerve impingement.

84 On examination at the consultation with Dr Daff on 18 February 2020, Mr Dahoud had reduced rotation to the left associated with pain. He was reluctant to extend and flex, both producing left-sided pain. He was tender in multiple areas, exquisitely so through his left cervical spine.

85 Dr Daff concluded that his presentation was a continuation of the presentation in respect of his work injury on 2 February 2016. He considered that there was a cervicogenic element, but that he had a chronic pain state with significant psychosocial drivers (stress and anxiety) contributing to centrally-mediated pain. Dr Daff identified recent investigations which suggested a C7 nerve root irritation was clinically relevant in 2014, but not so currently. He considered that Mr Dahoud's neck and shoulder region were not structurally as bad as Mr Dahoud thought.

86 On 26 March 2020, Dr Daff reported again to Dr Lin in respect of his consultation that day with Mr Dahoud. It was noted that Mr Dahoud's symptoms had not changed. Dr Daff discussed structural pain with Mr Dahoud and the concept of emotional issues such as stress and anxiety.

87 On 22 April 2020, Dr Daff wrote again to Allianz. The purpose of the letter was to "clarify the situation with regard to ... [Mr Dahoud]".[36] Dr Daff referred to the independent medical examination which Mr Dahoud had undertaken in March 2020 and noted that Mr Dahoud had not, at that point in time, had any feedback. He then referred to the plan to refer Mr Dahoud to Empower for further holistic treatment based on physical and psychosocial elements.

88 On 26 May 2020, Dr Daff reported to Dr Lin again, having reviewed Mr Dahoud that day. He provided some feedback on Mr Dahoud's independent medical examination. Dr Daff noted that the assessment was based around a structural musculoskeletal approach, without consideration of psychosocial elements and possible underlying drivers of chronic pain. He recommended pain management and a holistic assessment. He also told Mr Dahoud that he was not structurally damaged and that a significant element of his pain was due to non-structural elements, in particular psychosocial drivers such as stress, anxiety and unemployment associated with financial hardship.

89 On 22 June 2020, Dr Daff prepared a further report to Dr Lin. Mr Dahoud's symptoms remained the same. He had a lot of fear and anxiety, and well-recognised drivers of pain. Dr Daff again reassured Mr Dahoud that he was structurally sound.

90 By 20 July 2020, when Dr Daff prepared his next report for Dr Lin, Mr Dahoud continued to have pain. Mr Dahoud did not relate his situation to being impacted by a lot of stress and anxiety. Dr Daff noted that his psychosocial situation was very challenging. He discussed chronic pain with Mr Dahoud. He encouraged him that he was structurally sound and emphasised addressing the psychosocial drivers of his pain.

91 A further review of Mr Dahoud was undertaken by Dr Daff on 17 August 2020 and a letter was sent to Dr Lin. This noted that Allianz had rejected Mr Dahoud's request for pain management. Dr Daff identified that he had spoken with Mr Dahoud about his chronic pain. He stressed again that he was structurally sound, and that Dr Daff was optimistic that he could return to work.

92 A final letter was sent by Dr Daff to Dr Lin, dated 14 September 2020. This identified that Mr Dahoud had a lot of psychosocial elements which were creating a stressful situation for him.

93 On 18 November 2019, Dr Law, neurologist/neurophysiologist, prepared a report which diagnosed a chronic left C7 compressive radiculopathy (nerve root compression). Dr Law noted that Mr Dahoud had reported that his symptoms were progressing. Dr Law considered that there was "no convincing evidence of ongoing nerve damage". However, it was noted that Mr Dahoud's condition was "[u]nlikely to spontaneously improve more than 3 years following the initial insult",[37] although he had not received specific treatment until then.

94 Dr Law considered that Mr Dahoud was incapacitated for work due to pain, but that if there was a significant reduction in his pain levels, it was possible that he would have a future capacity for work. Complete control of pain was perceived as unlikely, and because of the risk of progressive or recurrent acute radiculopathy, undertaking work of a similar intensity was ill-advised.

Dr Ales Aliashkevich - neurosurgeon and spinal surgeon

95 Dr Aliashkevich, neurosurgeon and spinal surgeon, examined Mr Dahoud on 22 March 2021 and prepared a report dated 22 March 2021. He described the neck pain which Mr Dahoud experienced in 2013 and the MRI scan he underwent on 7 February 2014, which revealed a left C6-7 disc-bulge and protrusion, together with neural foraminal stenosis comprising the left C7 nerve root. He noted that the neck pain went away, and that Mr Dahoud said he did not have any further neck problems until the injury on 2 February 2016.

96 On examination, Mr Dahoud was complaining of pain in the left side of his neck, his left shoulder, his left chest, the back of his head and his left jaw. He reported the intensity of the pain as being a high of 7 out of 10 on a day without activity and 10 out of 10 on a bad day. He described the pain beginning with a tingle and propagating to a burning and tearing sensation. The pain was worse with sudden movements. Mr Dahoud could not read or drive due to the neck pain. Mr Dahoud also had pins and needles in, and a shooting pain down, his left arm to all fingers.

97 Mr Dahoud had anxiety and depression which amplified his problems. He was using about 1.5 grams of marijuana a day and had chronic pain. His wife did most household duties and the cooking. He could set and clear the table. He could not clean. His wife did the laundry. His personal hygiene had improved, but he found sitting on the toilet and showering uncomfortable. His wife helped him with dressing. Before his injury, he enjoyed swimming, driving a car, and coaching junior football. He is now unable to do these things.

98 On examination, Mr Dahoud had his grip strength measured with a dynamometer. It was found to be 21 kilograms on the left side and 41 kilograms on the right side. The strength of his left triceps was reduced to grade 4+/5 and he had a diminished pinprick sensation in his left hand, consistent with the C6 and C7 dermatomal pattern. The left triceps jerk was diminished. The range of neck movements was restricted. Flexion was possible to 45 degrees. Extension was possible to only 10 degrees. Left rotation was possible to 30 degrees and right rotation was possible to 60 degrees. There was significant tenderness noted on palpation in the left trapezius region.

99 Dr Aliashkevich considered the MRI scan of Mr Dahoud's cervical spine taken on 15 October 2019 and the findings of multilevel degenerative disc and facet arthropathy seen with multilevel disc desiccation. At C5-6, a small amount of posterior disc-osteophyte complex indented the ventral CSF space. Uncovertebral osteophytes caused mild narrowing of the exit foramina. At C6-7, there were similar changes with posterior disc-osteophytes indenting the ventral CSF space. Moderate left and mild right foraminal stenosis were observed due to uncovertebral osteophytes. The cervical cord had a normal signal throughout.

100 Dr Aliashkevich diagnosed chronic neck and left arm pain, chronic left shoulder pain, chronic cervicogenic headache, chest pain and pain syndrome, suspected central sensitisation and C7 radiculopathy, multilevel cervical spondylosis, dominant at C5-6 and C6-7, C6-7 more than C5-6, left dominant foraminal stenosis, a history of a work-related incident on 2 February 2016 and a history of illicit substance abuse. He considered that employment in general, and the stated incident on 2 February 2016, were materially contributing factors to a significant exacerbation of a pre-existing degenerative condition of the cervical spine.

101 Dr Aliashkevich recommended a series of further diagnostic tests and treatments for Mr Dahoud. These included, among other things, an up-to-date MRI scan of the cervical spine, a SPECT/CT scan of the cervical spine to rule out abnormal metabolic uptake in the facet joints and costovertebral joints; flexion/extension x-rays of the cervical spine; up-to-date nerve conduction tests and EMG studies to rule out chronic denervation changes in his left arm; and consultation with a neurosurgeon/spinal surgeon to analyse the results of the suggested investigations and to consider diagnostic/therapeutic interventional pain strategies, including steroid injections or surgery.

102 Dr Aliashkevich noted that he was not an occupational physician, but nevertheless considered that Mr Dahoud had no capacity to perform his pre-injury duties as a cleaner having regard to his inability to work since October/November 2018; his character and the intensity of his symptoms; the exacerbation of pain he experienced after he attempted a return to work; persisting neurological signs and symptoms consistent with clinical and radiological features of aggravated cervical spondylosis; a failed response to conservative treatment; functional limitations; age; level of education; work experience; opinions of other medical specialists; his place of residence, and his limited transferrable skills. He considered that due to the cervical spine injury alone, Mr Dahoud might have had some capacity for modified light duties under restrictions with respect to bending, lifting, twisting, stooping, pushing, pulling, overhead activities, prolonged sitting, walking, or standing.

103 Dr Aliashkevich considered that the restrictions were likely to continue for the foreseeable future to a significant extent.

104 He also opined that the chronic character of Mr Dahoud's symptoms might lead to a deterioration of his condition with the progression of degenerative spinal changes. This could impact on his social, domestic, and recreational life, and he could not rule out the possibility of the need for ongoing physical and medical therapy. The prognosis was very guarded with several red flags for an unfavourable long-term outcome. Dr Aliashkevich was uncertain whether Mr Dahoud would be able to achieve full functional recovery in the foreseeable future.

105 Mr Long, general surgeon, conducted an independent medical examination of Mr Dahoud on 22 February 2016 and then prepared a report dated 27 February 2016.

106 Mr Long noted that Mr Dahoud had attended Dr Wilson, his general practitioner of several years, on 4 February 2016, and had been provided with a medical certificate of capacity. This referred to "left neck pain... cervical spine injury... aggravation of previous injury... expected to be fit for normal duties from 22/02/2016".[38] He confirmed the circumstances of Mr Dahoud's injury while he was moving rubbish, including a waterlogged mattress at work. He referred to his subsequent attendance upon Dr Wilson and the prescription of Lyrica and Endep (which it was noted he had been taking since a right elbow injury developed in 2012). He also noted the referral to Dr Daff and an MRI scan of the cervical spine performed on 7 February 2016.

107 Mr Long noted Mr Dahoud's previous elbow injury in 2012 and an earlier incident of pain in Mr Dahoud's left neck in 2012/2013, which had subsided prior to the injury on 2 February 2016, "with a similar radiation and features to that sustained in the work injury of 2 February 2016".[39] Mr Dahoud had also been treated for depression and anxiety since early 2013 and had received ongoing psychological treatment.

108 Mr Long noted Mr Dahoud's current symptoms included left-sided neck pain of 7 to 10 out of 10 intensity, increasing with movement, including coughing and sneezing. Pain was also noted at Mr Dahoud's left anterior chest, left axilla, and posterior left shoulder. It was reported to extend to the mid-left upper arm. Mr Dahoud had some sensory changes which were continuous in that region. He had cramps in his legs at night and was unable to use his left arm to stretch his legs and relieve his symptoms. He had poor sleep, as it was difficult to find a comfortable position for his head and neck. Mr Dahoud also reported "bullying and harassment"[40] at work and a poor relationship with his supervisor. He said he had suffered from depression since 2013, and from panic attacks.

109 On examination of Mr Dahoud, Mr Long observed that Mr Dahoud clearly had "pain and restriction of movement of his neck"[41] and cervical spine with asymmetry and paravertebral muscular guarding. This was more apparent upon examination. He also had slight restriction of movement in the left shoulder and some diminished sensation to light touch in his medial left shoulder and left axilla.

110 Mr Long noted that there was clinical and radiologic evidence of left C7 nerve root compromise with probable radiculopathy. He diagnosed an aggravation of pre-existing degenerative changes in Mr Dahoud's cervical spine with a broad-based disc bulge, asymmetric to the left, and right and left-sided neural foraminal stenosis, more severe on the left side. He said that Mr Dahoud's symptoms occurred at work on 2 February 2016 and the changes were causing features of radiculopathy affecting Mr Dahoud's left arm. He noted that the pre-existing symptoms had resolved prior to the work injury on 2 February 2016.

111 Mr Long also noted depression and anxiety and ongoing symptoms from Mr Dahoud's right elbow from his 2013 work injury.

112 Mr Long considered that Mr Dahoud did not have a capacity to return to his pre-injury work or hours. He could not state how long the incapacity would continue and noted that it would depend on Mr Dahoud's response to treatment, including physiotherapy. He recommended continuation of prescription of Lyrica and Endep and reassessment by Dr Daff. He noted that if symptoms continued, surgical decompression of the left C7 nerve root should be considered. He also noted that Mr Dahoud required ongoing psychological support and that his depression and panic attacks were adversely affecting his symptoms.

Dr Francis Ghan - consultant orthopaedic surgeon

113 Dr Francis Ghan, consultant orthopaedic surgeon, examined Mr Dahoud on 4 March 2020 and prepared a report dated 10 March 2020.

114 Dr Ghan noted that Mr Dahoud complained of ongoing neckache, headaches, and some pains in his left upper arm, with occasional pins and needles in his left arm. He also complained of aches and pains around his left anterior chest region. He noted that his general practitioner put him on Endep and Lyrica.

115 Dr Ghan considered that there was functional overlay present. Examination of his neck demonstrated normal alignment. Dr Ghan reported that Mr Dahoud was "not willing to move his neck much in any direction on instruction only quarter normal range obtained in all directions".[42] Dr Ghan detected no evidence of neck muscular spasm and no evidence of motor or sensory deficit in the upper limbs. Both shoulders had a full range of motion, including abduction to 180 degrees bilaterally. His reflexes were equal on both sides and the thoracolumbar spine had normal alignment. He was observed to dress and undress with ease.

116 Dr Ghan noted that the MRI scan of 15 October 2019 had reported a disc osteophyte complex at C5-6 and C6-7, but that there was no disc prolapse or stenosis. He also noted that the nerve conduction study on 30 October 2019 was "essentially normal", with "inactive C7 radiculopathy".[43]

117 He opined that he could not define any injury arising from the work incident on 2 February 2016. Mr Dahoud's condition was essentially non-specific aches and pains in his neck. If there was a neck injury, it was a simple muscular neck strain, which would have resolved. The symptoms could not be related to the injury. The MRI scan was essentially normal, showing spondylotic change. Dr Ghan said that there was no indication for any specific treatment.

118 In Dr Ghan's opinion, Mr Dahoud had capacity to return to work in his pre-injury duties and hours. His current incapacity was not the result of the claimed workplace injury.

119 Dr Ghan could not be certain if there were any factors affecting Mr Dahoud's recovery, but he suspected that lack of motivation might be one such factor.

120 Dr Ghan prepared a further report dated 1 July 2020. He commented on the MRI scan of 15 October 2019 and clarified that it essentially confirmed that Mr Dahoud had cervical spine spondylosis commensurate with his age. He opined that there was no evidence of acute disc injury and that Mr Dahoud's symptoms were more in keeping with non-specific myalgia with an element of spondylosis.

121 Dr Ghan also commented on Associate Professor Miron Goldwasser's report dated 8 March 2019. He specifically noted that Associate Professor Goldwasser did not find any evidence of neurological deficit in Mr Dahoud's upper limbs. He commented on the restriction of neck range of motion and tenderness at the base of the neck muscles.

122 Dr Ghan also commented on the episode of neck symptoms Mr Dahoud suffered in February 2014. In relation to Dr Daff's progress notes, he observed that Dr Daff considered that Mr Dahoud's symptoms were more facetogenic. He noted that this was essentially the same as cervical spondylosis symptoms, which he said were consistent with the ongoing neck ache reported by the North Richmond Clinic on 29 May 2017 and 17 September 2019, as well as reported to the Medical Panel in July 2019.

123 Dr Ghan maintained his opinion that there was no evidence of any acute work injury arising from the incident on 2 February 2016 and that Mr Dahoud's symptoms were essentially quite non-specific aches and pains in the neck, with an element of cervical spine spondylotic symptoms. Any work-related injury on 2 February 2016 had resolved. This opinion was based on his physical examination of Mr Dahoud on 4 March 2020; an absence of radiculopathy; the MRI scan on 15 October 2019 reporting a disc osteophyte complex at C5-6 and C6-7, but no disc prolapses or stenosis; and an essentially normal "inactive C7 radiculopathy".

124 Dr Dickinson, orthopaedic surgeon, examined Mr Dahoud on 30 April 2021 and prepared a report dated 17 May 2021.

125 Dr Dickinson noted that Mr Dahoud had a prior history of injury to his neck and evidence on radiology of minor degenerative changes in his cervical spine. These were most evident at C6-7, where there were disc-osteophyte complexes. Dr Dickinson took a history of the incident on 2 February 2016 from Mr Dahoud and identified neck pain and pain around the left shoulder region. He noted that Mr Dahoud had seen Dr Daff and had been given some analgesics (Endep, Lyrica and Panadol) without success. Mr Dahoud informed Dr Dickinson that he started smoking marijuana in late 2016 to help him with his pain and that he was drinking excessively.

126 Mr Dahoud recounted continuing work but being moved to RMIT.

127 At the time of the examination, Mr Dahoud described continuing to have a feeling of tightness on the left side of the neck and pain under the left axilla. He spoke of pain in the left forequarter of his body (midline of the chest to the midline of the back, down to the lower rib cage and to the arm, including to the fingertips). He described numbness in the whole region.

128 On examination, Dr Dickinson observed no restriction of cervical movement with the maximal range of rotation being assessed while prone. Mr Dahoud moved his shoulders normally and comfortably. There was a global sensory loss in the left forequarter, including the whole arm. There was normal power and normal deep tendon reflexes.

129 Dr Dickinson noted the MRI scans of 7 February 2014 and 15 October 2019. The 15 October 2019 MRI scan of the cervical spine revealed a disc osteophyte complex at C6-7, with moderate foraminal stenosis bilaterally, as well as minor changes at C5-6. There was no evidence of any acute change.

130 The nerve conduction studies undertaken on 30 October 2019 recorded slight to moderate inactive neurogenic changes in the C7 innervated muscles, with a history given of left neck injury with ongoing shooting pain and left-sided pain at the back of the shoulders.

131 Dr Dickinson noted that Dr Law's initial clinical impression, like Dr Dickinson's, had been that there was no evidence of a C7 neuropathy. However, Dr Law had later opined in his letter of 18 November 2019, following the nerve conduction studies, that Mr Dahoud had "chronic left C7 radiculopathy" which was "unlikely to spontaneously improve."[44] Dr Dickinson observed that there was evidence of exit foramen narrowing at the C6-7 level of the cervical spine, consistent with potential C7 pathology, but in his opinion, this was not the cause of Mr Dahoud's presentation.

132 Dr Dickinson's opinion was that although there were pre-existing degenerative changes in Mr Dahoud's cervical spine, the alleged work injury did not materially affect the underlying conditions in any way. Alternatively, any work-related aggravation had ceased. Dr Dickinson considered that there was "no physiological cause for his pain".[45] The clinical findings were of "non-anatomic and variable neck movement, global sensory loss" - non-physiological in nature - "in the left forequarter of the body and with normal power and normal deep tendon reflexes".[46] There was no restriction of shoulder movement and no evident abnormality of the cervical spine or of the shoulder. Although Mr Dahoud had radiological findings of degenerative change, those were consistent with normal wear and tear and not with the clinical findings. Mr Dahoud's physical complaints were not contributed to by the incident. His presentation fitted best with somatisation, which is a somatoform disorder best considered by a psychiatrist.

133 A further report was prepared by Dr Dickinson dated 13 August 2021 in which Dr Dickinson considered the Recovre Vocational Assessment Report dated 23 December 2020. Dr Dickinson considered that Mr Dahoud could return to his pre-injury duties on a full-time basis and could also perform the duties detailed in the Recovre report. He was assessed as having few transferrable skills, but Dr Dickinson considered that he would be suited to working as a packer or a product assembler. There would also be no physical restriction on Mr Dahoud working as a meter reader.

Associate Professor Miron Goldwasser - orthopaedic surgeon

134 Associate Professor Goldwasser, orthopaedic surgeon, examined Mr Dahoud on 6 March 2019 for the purpose of preparing a medico-legal report for Allianz.

135 He took a medical history from Mr Dahoud, including with respect to the incident at work on 2 February 2016. He recorded that Mr Dahoud stopped work on 4 February 2016 and remained off work for a month or two before returning on modified duties. He moved to a new worksite in May 2016 because of issues, including mental stress due to work relations with his supervisor. Mr Dahoud continued working for about six months and then stopped work for a combination of reasons, including because of his neck. After that, Mr Dahoud did some contract work, but noticed his pain worsening. He has not worked since late 2018.

136 On examination, Associate Professor Goldwasser noted that movements of Mr Dahoud's neck were restricted, particularly rotation and lateral flexion to the right. There was also tenderness, most marked to the left side of the base and middle of his neck, and lesser so in the midline. Mr Dahoud continued to have neck pain which was worse on the left side of his neck and in the trapezius area, but which he said could also affect the front of his upper chest and could radiate down his left arm to his elbow. It was worse with lifting. Mr Dahoud found neck movements difficult, particularly turning and tilting. There was intermittent tingling in his left upper arm extending to his hand, thumb, and index finger.

138 Mr Dahoud had difficulty doing some activities of daily living, including feeding and dressing himself. He said that it was awkward to put on socks, shoes, pants, or trousers. He was able to wash himself, but it was difficult to reach behind himself. He was able to attend to personal hygiene. He tried to help around the house doing some tidying and cooking and sometimes helped with the shopping.

139 Mr Dahoud was taking Nurofen, two to five tablets a day; Endep at night and Lyrica, 75 milligrams twice a day. He used heat and ice packs. He was also using marijuana daily, alcohol (six to seven drinks a day), and occasional heroin.

140 He attended a psychologist monthly but was not seeing a psychiatrist.

141 He used to be very active in sport, including social football and swimming, and he had been a football coach in the past.

142 Associate Professor Goldwasser opined that Mr Dahoud sustained an injury to his neck at work on 2 February 2016, which was consistent with the account given by Mr Dahoud. He considered that the injury was probably a soft-tissue injury in the presence of some degenerative changes that had previously been relatively symptom free. He also considered that, since the episode, Mr Dahoud had continued to have persistent symptoms in his neck radiating to his left upper limb. The condition had not changed and was unlikely to change substantially.

143 Dr Slesenger, occupational physician, conducted a clinical assessment of Mr Dahoud on 24 June 2021 and prepared a report dated 1 July 2021. In his report, he noted Mr Dahoud's employment and medical history, as well as his progress, current symptoms, and function. There was residual neck pain that was severe and constant. Mr Dahoud had weakness in the left upper limb and residual right lateral elbow pain. Mr Dahoud was noted to have begun to develop depression and anxiety. He had started to use marijuana to manage his symptoms, and his alcohol intake had increased.

144 Dr Slesenger referred to Mr Dahoud's activities of daily living, including his ability to engage in light domestic duties; although most domestic tasks are performed by his partner. He noted that Mr Dahoud struggled to rise in the morning and once or twice a week he could not get out of bed due to the severity of his symptoms.

145 Mr Dahoud used to enjoy coaching football, but this ceased because of the injury. He used to enjoy swimming, but that had ceased. Since 2016, he no longer drove.

146 Mr Dahoud had no valid qualifications. He could read and write English, but had poor grammar and spelling, and poor computer skills. He continued to use 2 to 3 grams of marijuana per day.

147 On examination, there was moderate to severe tenderness over the lower cervical spine, with maximum tenderness over the left side. His range of movements were limited to flexion 30 degrees, extension 30 degrees, right rotation 50 degrees, left rotation 20 degrees, right lateral tilting 10 degrees, and left lateral tilting 10 degrees. There was no improvement of the range of movement upon distraction. There was evidence of wasting around the left shoulder, and moderate to severe tenderness over the superior and lateral aspects of the shoulder, acromioclavicular joint and the bicipital groove.

148 Dr Slesenger reviewed various documents provided to him and summarised that Mr Dahoud had a history of a neck injury sustained in the course of his employment. He had developed neck pain with radiating symptoms into his left upper limb in 2014. His symptoms deteriorated and by 2016 he was struggling to perform his pre-injury role. He was re-allocated to working at RMIT, performing light duties, and ceased work with GJK in 2018. Mr Dahoud described residual neck pain, which was moderate to severe, with radiating symptoms into the left upper limb and right lateral elbow pain. He also described substance misuse, including alcohol and marijuana.

149 Dr Slesenger diagnosed a soft-tissue injury of the cervical spine and an aggravation of degenerative disease of the cervical spine, presenting with chronic neck pain with radiating symptoms into the left upper limb, and equivocal evidence of radiculopathy. He also said Mr Dahoud had a psychological impairment, including substance misuse.

150 Dr Slesenger, like Dr Aliashkevich, considered that Mr Dahoud required further assessment with regards to his neck, left shoulder and left upper limb. He recommended a return to his general practitioner for further cervical spine imaging to exclude Thoracic Outlet Syndrome. He also recommended nerve conduction studies to his left upper limb to exclude Carpal Tunnel Syndrome, as well as further x-rays, an ultrasound scan, and possibly an MRI scan.

151 When asked whether Mr Dahoud had capacity to perform his pre-injury duties, Dr Slesenger said that "[b]ased on Mr Dahoud's residual impairment, I advise against him returning to his pre-injury role as the job demands lie outside the capacity limits".[47] He did not conclude that Mr Dahoud's incapacity for alternative duties could be regarded as permanent at that time because there were opportunities, still, for further treatment, but he did not anticipate Mr Dahoud returning to his pre-injury employment within the foreseeable future. He also considered it unlikely that Mr Dahoud would be able to work in a role for which he had suitable training and experience on a consistent and reliable basis.

Defendant's vocational assessments and rehabilitation reports

152 Janette Ash, occupational therapist/injury management consultant from Recovre, prepared a vocational assessment report dated 23 December 2020, following a telephone interview between Mr Dahoud and Ms Ash on 15 December 2020. The vocational assessment identified job options of packer, product assembler and meter reader as suitable for Mr Dahoud, given his education, transferable skills and work experience.

Dr David Barton - consultant occupational physician

153 Dr Barton, consultant occupational physician, examined Mr Dahoud on 10 December 2020 and prepared a report dated 14 December 2020.

154 Dr Barton took a history of Mr Dahoud's injury on 2 February 2016. He noted Mr Dahoud's symptoms and that he had severe pain in the "whole square", pointing to the left side of his neck, through the left shoulder area, down the front of the left chest and around past the armpit. He noted that Mr Dahoud said that the pain was present all the time and was made worse with exercise or activity. He was taking Lyrica, 150 milligrams a day; Endep, two a day; and between four to six Panadeine Forte tablets a day. He was also using hot and cold packs.

155 Dr Barton did not note any prior history of other relevant musculoskeletal problems or injuries.

156 Upon examination, Dr Barton noted a considerable degree of illness behaviour apparent with "much gasping, grimacing and groaning throughout the assessment".[48] He also observed that the neck and chest area showed marked areas of tenderness and pain to light touch. Neck movements were reduced to about one third of the expected range, with much gasping and grimacing at the extremes of movement. Dr Barton considered that Mr Dahoud demonstrated a greater range of movement when distracted.

157 Dr Barton noted Mr Dahoud's comment that his work situation was "toxic", and his symptoms had not improved for four-and-a-half years. He opined that:

"This presentation is typical of what was seen in the compensation arena where there is an initial degree of catastrophisation. In people who believe themselves to be in very awkward work situations, 'get injured' problems never seem to get better."[49]

158 In his view, the "worker's long history of dramatically described symptoms, in the distribution that he reports",[50] did not fit with any recognised physical problem. The investigations showed some longstanding and typical changes in his neck. However, they in no way accounted for the symptoms he described. Specifically, he noted a -

"... lack of any objective evidence of any particular physical problem that would account for his symptoms and claimed level of incapacity;

the increase in reported symptoms with axial loading;

the widespread areas of tenderness that make no medical sense four and a half years after some physical activity;

the discrepancy between his limited neck movements noted during the formal examination and at other times."[51]

159 Dr Barton was unable to find any evidence of a specific work injury, although he accepted there may have been a "mild soft tissue problem in the neck area".[52] He did not think any physical treatment was going to make any difference to Mr Dahoud. He commented that Mr Dahoud's claims to be "profoundly affected by his problems in regards to general life activities" was "typical of this abnormal illness behaviour approach to compensation injury".[53] He concluded that Mr Dahoud "certainly has a capacity for suitable employment on a full-time basis".[54]

160 In a further report dated 13 August 2021, Dr Barton specifically considered the Recovre Vocational Assessment Report. His opinion was that he could see no reason why Mr Dahoud could not undertake the duties detailed in the Recovre Vocational Assessment Report disregarding the contribution of any pre-existing or other non-work-related condition and considering the neck injury on 2 February 2016 in isolation.

161 Counsel for Mr Dahoud submitted that he sustained a permanent neck injury at work on 2 February 2016 which aggravated pre-existing degenerative changes in his cervical spine. The degenerative changes in the cervical spine were submitted to be the organic source of Mr Dahoud's pain. These produced impairment consequences for Mr Dahoud, including pain, which although fluctuating, was physical in nature, and resulted from the aggravation of the 2013 neck injury. Further, the pain and suffering and economic loss consequences of the aggravation injury were submitted to be permanent and serious, particularly because Mr Dahoud had been unable to return to pre-injury employment.

162 The defendant submitted that there was no substantial organic basis for Mr Dahoud's neck injury and raised issues to do with the disentanglement of any organic injury from the non-organic injury. It also sought to impugn Mr Dahoud's credit. Alternatively, it submitted, if there were to be a substantial organic basis for a persisting neck injury, then the evidence of the organically-based consequences (as opposed to Mr Dahoud's other unrelated psychological issues) would be unsatisfactory, uncertain, and not sufficient to satisfy the narrative test. The defendant also submitted that Mr Dahoud has capacity for employment, so he does not meet the statutory threshold for "serious injury".

163 It was submitted by counsel for Mr Dahoud that on 2 February 2016, he suffered an injury to his cervical spine which was an aggravation of pre-existing degenerative changes in his neck.

164 I am required to identify the consequences of Mr Dahoud's impairment to his cervical spine caused by the workplace injury on 2 February 2016. This requires me to separate out the components of the pre-existing injury from the alleged aggravation injury, and to assess the extent of impairment of a body function before and after the aggravation injury to determine whether the additional long-term consequences of impairment consequent upon the aggravation injury to Mr Dahoud, are themselves "serious", in the sense that they are "at least very considerable".

165 It was not disputed by the defendant that Mr Dahoud sustained a neck injury in late 2013 while off work and receiving treatment for his right elbow injury. The injury was best described in the results of the MRI scan of Mr Dahoud's cervical spine taken on 7 February 2014. This showed that Mr Dahoud had multilevel cervical spondylosis, with a predominant abnormality at C6-7, where there was an asymmetric left-sided broad-based disc bulge. He also had uncovertebral osteophytes and superimposed left foraminal disc protrusion. These were contributing to severe left C6-7 neural foraminal stenosis and compromise of the exiting C7 nerve root at that level. I am satisfied, on the balance of probabilities, that Mr Dahoud sustained this injury to his cervical spine in late 2013.

What were the consequences of the late 2013 neck injury?

166 It was submitted on behalf of Mr Dahoud that the 2013 neck injury resolved and consequently, immediately prior to the 2 February 2016 injury, Mr Dahoud's neck and cervical spine were effectively asymptomatic.

167 Mr Dahoud said in his affidavit sworn 3 August 2020, in respect of the late 2013 neck injury, that he had an MRI scan on 7 February 2014. In the affidavit he said that he had some pain going into his left shoulder and down the arm. However, his affidavit was silent as to whether, and if so when, that pain resolved. Counsel for Mr Dahoud submitted that the 2013 neck injury recovered and was asymptomatic immediately prior to 2 February 2016.

168 In his report dated 13 April 2015, Dr Daff noted that by 4 February 2014, Mr Dahoud had developed gradual onset increasing left neck pain referring to his shoulder blade. He had numbness and shooting pain through his radial arm and forearm into his fingers. His presentation was suggestive of a C6 radiculopathy. He was commenced on Endep and Lyrica and an MRI scan of his cervical spine was arranged. A review by Dr Daff of the MRI scan with Mr Dahoud on 10 February 2014 showed a left-sided C6-7 disc with C7 nerve root irritation. Dr Daff also noted that by 12 March 2014, the cervical disc and left arm were slowly improving. He also said he saw Mr Dahoud for a final consultation on 5 February 2015, at which stage he "cleared him for return to work at his original employer, G.J. & K. Cleaning Services Pty Ltd".[55]

169 In a subsequent letter prepared by Dr Daff on 22 February 2016, reference was made to the 2014 left neck and upper limb symptoms which had "recovered completely within 3 months".[56]

170 Mr Long, in his report dated 27 February 2016, also observed that the pre-existing neck symptoms had resolved prior to the work injury on 2 February 2016.

171 Each of these matters point in the direction that Mr Dahoud's cervical spine injury, sustained in late 2013, had resolved to the point that it was asymptomatic within a few months after the injury occurred and was consequently asymptomatic immediately prior to the work injury on 2 February 2016.

172 The defendant submitted that Mr Dahoud continued to have symptoms in his neck after the 2013 neck injury, until immediately before the 2 February 2016 workplace incident. To support this submission, Mr Dahoud was cross-examined about an affidavit sworn by him in February 2015 in an earlier proceeding seeking common law damages against GJK with respect to Mr Dahoud's right elbow, right hand, fingers, and neck. Mr Dahoud accepted that, at the time that affidavit was sworn in early February 2015:

(a) The pain he experienced was constant and aggravated by simple activities;

(b) Holding objects for periods of time meant he suffered afterwards for days;

(c) He had difficulty performing simple tasks such as cooking and cleaning, and consequently had to order more take-away food. Mopping and vacuuming aggravated the pain in his right upper limb and neck, which meant he had to use his left arm more;

(d) His ability to maintain his personal appearance and hygiene had diminished and he had difficulty washing, drying and toileting himself, shaving and brushing his teeth. He had difficulty dressing himself and tying his shoelaces;

(e) He had extreme difficulty driving a car and was unable to ride his bicycle;

(f) He had difficulty performing moderate to high-impact exercise. He had ceased playing football and cricket, going to the gym, running, and swimming and he also had to cease coaching a junior team;

(g) He had less interaction with his niece and nephew;

(h) He was suffering from stress and fear that he would never fully recover, and he was worried about his future ability to work;

(i) He said he had diminished libido with his partner, and that the pain in his neck and right arm impacted heavily upon his sexual functioning; and

Q: "So I suggest, Mr Dahoud, that when you swore this affidavit, really, every aspect of your life had been detrimentally affected by the right elbow, right hand, right fingers and neck injuries that you were claiming in that application there. Would you like me to break that question up a bit, Mr Dahoud?---

A: No, no - yes, correct. I was just waiting to continue."[57]

174 Following an interchange between counsel and Mr Dahoud, it was put:

Q: "And I suggest that at that time you had a very poor quality of life at home in terms of your ability to care for yourself? ---

Q: And your social life was also restricted by your injuries and your symptoms, wasn't it?---

Q: And your personal life - your sex life as well - had been affected quite badly, hadn't it?---

Q: And you were having very, very poor sleep quality, and you were tired and stressed?---

Q: And your ability to work freely had been affected too, hadn't it?---

A: When I returned to work, I returned to work with the intentions of doing the best job I can.

Q: I understand that, but as at the time you swore this affidavit, you were very worried about the long term effect of your work on your symptoms, weren't you?---

Q: The injuries that you claimed for in this affidavit, they had severely restricted your recreational pursuits too, hadn't they?---

Q: And by that I mean your ability to participate in sports and gym and that sort of thing?---

Q: You had to stop things like the footy coaching, and your own sports?---

Q: So really the injuries that you claim to have suffered in this affidavit have really taken away most of the enjoyment of your life, hadn't they?---

Q: "... The problems you described in this affidavit that you swore in 2015, you continued to have those problems for the rest of 2015, didn't you?---

Q: There wasn't any miraculous recovery or cure?---

A: There was a cure - there was something for my elbow and my neck pain subsided and went away after the rest."[59]

176 The defendant submitted that Mr Dahoud's late-2013 neck injury progressed in a similar way to the recovery of his right elbow condition, and he developed psychosocial symptoms, and his subjective complaints ultimately outweighed objective findings. It was submitted he experienced ongoing non-organic pain.

177 In support of that argument, the defendant also relied on a letter from Ms Riglar dated 27 August 2013. The letter identified that Mr Dahoud had a good range of movement and adequate isometric strength in his right elbow, but subjective factors, such as extreme tenderness and stiffness, told otherwise. The defendant also relied on advice provided by Dr Daff to Mr Dahoud in April 2014, to the effect that Mr Dahoud had made a complete recovery from his elbow injury and his symptoms were psychosocial. Further, reference was made to observations made by Dr Daff in his report dated 13 April 2015, that the subjective complaints by Mr Dahoud were outweighing the objective findings.

178 I have considered the totality of the evidence. Having done so, I have formed the view that Mr Dahoud's 2013 neck injury, on the balance of probabilities, had resolved at the point in time immediately prior to the 2 February 2016 aggravation injury. I have reached this conclusion for the following reasons.

179 First, this is supported by the objective medical evidence. The last time that Dr Daff saw Mr Dahoud in respect of his 2013 neck injury, before he saw him again on 22 February 2016, was on 5 February 2015. In a report which Dr Daff prepared for the Accident Compensation Commission dated 13 April 2015, Dr Daff outlined the history and progression of Mr Dahoud's right elbow and neck injury to that point. He wrote that he had initially seen Mr Dahoud on 9 April 2013 with a four-month history of gradual onset right lateral elbow pain. At that time, the right elbow pain was preventing him from lifting and gripping objects and performing basic domestic tasks, such as washing his hair.

180 By 28 August 2013, Mr Dahoud had developed significant non-physical aspects to his presentation, such as chronic pain, anxiety and aggrievement associated with compensable injury, loss of work and associated wages in conjunction with the recent loss of his father, and the threat of being evicted from his flat. It was noted that he had a significant number of emotional issues which could negatively influence his physical recovery.

181 Following several further consultations with Dr Daff during which Mr Dahoud's right elbow was observed to improve, on 4 February 2014, Mr Dahoud, for the first time, complained to Dr Daff of the development of gradual onset of increasing left neck pain referring to his shoulder blade over the previous six weeks. This made it difficult for him to sleep at night. He had numbness and shooting pain through his radial arm and forearm to his thumb, and index and middle fingers.

183 In late 2014, GJK identified the possibility of a return to work for Mr Dahoud. Dr Daff said, in relation to Mr Dahoud, that this -

"... lifted his spirits dramatically. He then went on an overseas holiday and on his return was very positive about his situation and had resolved emotional/ behavioural issues."[60]

184 Dr Daff then noted that he saw Mr Dahoud for a final consultation on 5 February 2015, at which time Dr Daff cleared him for a return to work. In my view, clearance for a return to work as a cleaner is inconsistent with ongoing physical injury to Mr Dahoud's cervical spine. In circumstances where Dr Daff considered that a lot of Mr Dahoud's issues related to non-structural psychosocial elements, possibly contributing to a degree of central sensitisation, the observation by Dr Daff that Mr Dahoud's emotional/behavioural issues had resolved, is consistent with a lack of ongoing physical injury immediately before the incident on 2 February 2016. I accept Dr Daff's evidence that Mr Dahoud's cervical spine injury had resolved by the time he cleared him for work on 5 February 2015.

185 Second, resolution of Mr Dahoud's 2013 neck injury is consistent with, and supported by, Mr Dahoud's return to work in early February 2015, and his continued employment by GJK thereafter up until 2 February 2016. If he was experiencing the level of disability which was suggested by counsel for the defendant in cross-examination, how and why did Mr Dahoud return to work after his holiday?

186 Third, it is supported by the fact that, from April 2015 until after 2 February 2016, when Mr Dahoud says he sustained a further aggravation injury to his neck, there were no further medical consultations by Mr Dahoud in relation to his neck or cervical spine. There is no objective medical evidence that Mr Dahoud's cervical spine injury was symptomatic immediately before 2 February 2016.

187 Fourth, even if Mr Dahoud continued to experience symptoms with respect to the injuries to his right elbow and neck from 2013 to 2015, as Mr Dahoud conceded in cross-examination, in my view, these had resolved prior to 2 February 2016. This was the effect of Mr Dahoud's evidence in cross-examination, when he said that his cervical spine symptoms had subsided and gone away and the pain in his neck had ceased by the time of the mattress incident. I accept his evidence. That evidence followed the lengthy series of questions (extracted above) in which Mr Dahoud was asked about his pain and suffering and loss of enjoyment consequences throughout 2015. He made several admissions, which, on any view, were contrary to his interests. Nevertheless, on the question of whether his neck injury had resolved, he maintained that his neck injury did subside and go away.

188 Overall, I have concluded, notwithstanding the concessions made by Mr Dahoud in cross-examination, Mr Dahoud's cervical spine was, on the balance of probabilities, asymptomatic immediately prior to 2 February 2016.

189 The defendant did not dispute that Mr Dahoud sustained a further injury and pain to his neck and cervical spine on 2 February 2016 when he was removing rubbish and bending, lifting, pulling, and pushing a waterlogged mattress. It disputed the nature of the injury sustained on 2 February 2016; whether it had an organic basis; the claimed consequences of the impairment, and whether the consequences of impairment were "serious".

190 Counsel for Mr Dahoud submitted that asymptomatic degenerative changes in his spine were rendered symptomatic by the incident at work on 2 February 2016, following which he experienced persistent symptoms in his neck and radiating pain to his left upper limb.

191 The defendant maintained the position that Mr Dahoud had sustained a soft-tissue injury to his neck, and if Mr Dahoud had neck pain, it was continuing pain from earlier injuries which were being driven by psychosocial factors, rather than organic pain. In short, it was submitted that Mr Dahoud's perception of his pain was disproportionate to what his treating practitioners considered his condition warranted. The defendant referred to the advice provided by Dr Daff to Ms Riglar on 28 April 2016 that Mr Dahoud should make a quick recovery from his neck injury, and the contrasting questionnaire which Mr Dahoud completed for Ms Riglar on 5 May 2016, which suggested that Mr Dahoud had given up hope that his pain would be amenable to treatment.

192 In my opinion, having considered the radiological evidence, the evidence from Mr Dahoud's treating doctors, as well as the independent medico-legal opinions, on 2 February 2016, Mr Dahoud suffered an injury to his cervical spine, which was an aggravation of pre-existing degenerative changes in his cervical spine.

193 First, the 15 October 2019 MRI scan demonstrated multilevel degenerative disc and facet arthropathy seen with multilevel disc desiccation. At C5-6, a small amount of posterior disc-osteophyte complex indented the ventral CSF space. Uncovertebral osteophytes caused mild narrowing of the exit foramina. At C6-7, there were similar changes with the posterior disc-osteophyte complex indenting the ventral CSF space. There was moderate left and mild right foraminal stenosis due to uncovertebral osteophytes. Additionally, nerve conduction studies performed on 30 October 2019 showed evidence of chronic C7 radiculopathy.

194 Second, Mr Dahoud's treating practitioners at the time he sustained the neck injury on 2 February 2016, considered that there was an organic basis for his pain. On 22 February 2016, Dr Daff considered that Mr Dahoud "probably has a different pathology, possibly having more facetogenic based neck pain".[61] Nevertheless, Dr Daff considered there was relevant cervical spine pathology. Later, on 18 November 2019, Dr Law also diagnosed a chronic left C7 compressive radiculopathy (nerve root compression).

195 Third, the opinion of Dr Aliashkevich, a neurosurgeon and spinal surgeon, supports the conclusion that Mr Dahoud suffered from an aggravation of degenerative disease of the cervical spine, presenting with chronic neck pain, with radiating symptoms into the left upper limb, and equivocal evidence of radiculopathy.

196 Dr Aliashkevich's opinion is also supported by that of Mr Long who, after seeing Mr Dahoud on 22 February 2016, recorded in his report dated 27 February 2016, that there was clinical and radiologic evidence of left C7 nerve root compromise with probable radiculopathy. Like Dr Aliashkevich, he diagnosed an aggravation of pre-existing degenerative changes in Mr Dahoud's cervical spine with broad-based disc bulge, asymmetric to the left and right and left-sided neural foraminal stenosis, more severe on the left side.

197 In my view, Dr Aliashkevich's and Mr Long's opinions are to be preferred to those of Dr Ghan and Dr Dickinson. Although Dr Ghan had access to and considered the MRI scan of 15 October 2019, unlike Dr Aliashkevich, he made no reference to the presence on the scan of moderate foraminal stenosis bilaterally. In fact, he says, positively, that there is no stenosis. This is contrary to what is reported on the scan which notes that at C6-7 there was "[m]oderate left and mild right foraminal stenosis due to uncovertebral osteophyte".[62]

198 Further, he opined that the nerve conduction study on 30 October 2019 was "essentially normal" with "inactive C7 radiculopathy". This is at odds with the report dated 18 November 2019 prepared by Dr Law, neurologist/neurophysiologist, on behalf of Mr Dahoud. Dr Law diagnosed a chronic left C7 compressive radiculopathy (nerve root compression). Given Dr Law's general area of specialised knowledge of neurology/neurophysiology, I prefer his evidence in relation to the results of the nerve conduction studies.

199 In relation to Dr Dickinson's opinion, Dr Dickinson observed pre-existing degenerative changes in Mr Dahoud's spine and evidence of exit foraminal narrowing at the C6-7 level of the cervical spine, consistent with potential C7 pathology. Unlike Dr Ghan, but like Dr Aliashkevich, Dr Dickinson also noted the presence on the nerve conduction studies undertaken on 30 October 2019 of slight to moderate inactive neurogenic changes in the C7 innervated muscles, with a history given of left neck injury, with ongoing shooting pain and left-sided pain at the back of the shoulders. Unlike Dr Aliashkevich though, Dr Dickinson concluded that because there was no restriction in shoulder movement and no evident abnormality of the cervical spine or shoulder, the pre-existing degenerative and neurogenic changes were not the cause of Mr Dahoud's presentation.

200 Having considered all the evidence, I prefer Dr Aliashkevich's opinion with respect to the injury sustained by Mr Dahoud on 2 February 2016. He examined Mr Dahoud and took measurements with a dynamometer of his muscle strength. There was a marked difference between his right and left sides, with a measurement of 21 kilograms on the left side and 41 kilograms on the right side. The strength of his left triceps was reduced to grade 4+/5 and he had a diminished pinprick sensation in his left hand consistent with the C6 and C7 dermatomal pattern. The left triceps jerk was diminished. Contrary to the opinion of Dr Dickinson, the range of neck movements was observed to be restricted and flexion was possible to 45 degrees, extension was possible to only 10 degrees, left rotation was possible to 30 degrees and right rotation was possible to 60 degrees. There was significant tenderness noted on palpation in the left trapezius region.

201 Dr Aliashkevich's physical examination, conducted on 22 March 2021, was consistent with that undertaken by Dr Daff at around the same time on 18 February 2021. Dr Daff also observed that Mr Dahoud had reduced neck rotation to the left associated with pain. He was reluctant to extend and flex, both producing left-sided pain. He was tender in multiple areas, exquisitely so through his left cervical spine.

202 I also had the benefit of observing Mr Dahoud over Zoom and could see that, at times, he displayed some difficulty moving his neck.

203 Finally, for completeness, I consider Dr Aliashkevich's evidence to also be preferable to that of Dr Ghan and Dr Dickinson, because Dr Aliashkevich is a neurosurgeon and spinal surgeon, as opposed to an orthopaedic surgeon. He is a specialist in neurosurgery and has accomplished a ministerially-approved program in the application of the American Medical Association Guides to the Evaluation of Permanent Impairment (4th edition AMA Guides) for the spine and nervous system. Dr Ghan, on the other hand, is a consultant orthopaedic surgeon, and Dr Dickinson is an orthopaedic surgeon. There was no evidence tendered which established what area of specialised knowledge Dr Ghan held within the area of orthopaedic surgery. Similarly, while it was evident that Dr Dickinson is an orthopaedic surgeon, it was not possible to ascertain his area of specialised knowledge from the abbreviated curriculum vitae attached to his report dated 17 May 2021. In those circumstances, I hesitate to accord their reports greater weight than that of Dr Aliashkevich.

204 I am satisfied, on the balance of probabilities, that on 2 February 2016, Mr Dahoud sustained an aggravation of degenerative disease of the cervical spine presenting with chronic neck pain and radiating symptoms into the left upper limb. He suffered from multilevel degenerative disc and facet arthropathy, seen with multilevel disc desiccation at C5-6 and C6-7, moderate foraminal stenosis bilaterally, and chronic C7 radiculopathy. There was consequently an organic basis for the impairment consequences he suffered.

205 At trial, the defendant submitted that I should make an adverse credit finding against Mr Dahoud and be slow to accept his subjective complaints of pain, or to attribute them to his neck injury.

206 The defendant cross-examined Mr Dahoud and tendered video surveillance evidence, with a view to demonstrating that Mr Dahoud continued to have pain and restriction immediately prior to the 2 February 2016 workplace incident, that was at least partially contributed to by psychosocial factors. The defendant relied upon five matters as being relevant to Mr Dahoud's credit.

207 The first matter relied upon by the defendant was that Mr Dahoud had taken - on Mr Dahoud's own estimation - more than twenty trips to the Philippines but had failed to refer to any of these trips in his affidavit.

208 Further, when it was put to Mr Dahoud in cross-examination that he took a holiday from November 2015 until January 2016, he initially said he stayed locally and did not refer to any of the trips he had taken.

A: I just stayed around - yeah, around my local area.

Q: So did you travel anywhere or was it a stay at home holiday?---

210 Later, there was an exchange between Mr Allan, on behalf of the defendant, and Mr Dahoud as follows:

Q: "And then I said, 'On holiday, where did you go?', And you said, 'I just stayed around, yeah, around my local area,' and then I said, 'Did you travel anywhere or was it a stay-at-home holiday?' You said, 'No, I stayed at home.' Was that wrong?---

A: It was wrong because I didn't know what you [w]ere trying to ask me about my personal life that's got nothing to do with this.

A: That's the question I'd like to ask you. What does it matter?

Q: When you gave that evidence yesterday - - - ?---

Q: - -- did you know that you were giving evidence that was wrong?---

Q: So why did you say yesterday that you had just stayed at home on that holiday?---

A: I'm not really sure why I said it but I just thought your questioning of me about that, I was not - I did not have to tell you that personal information

Q: So did you say that you just stayed at home - - - ?---

A: - - -You've made your point, MR Allan. I'm sorry, I did travel overseas.

Q: Did you say that to the court? Did you say you just stayed at home because you didn't think you had to tell the court about your personal life?---

A: No, I answered it because I was confused, Mr Allan, I didn't know what you were trying to sink me with here.

Q: Can I suggest again you took that holiday and you went to the Philippines, you agree with that now?---

A: - - - But sir, that was not the question you asked me yesterday. Did I go to the Philipp[ines] ...? You didn't ask you that.

Q: The transcript suggests I said to you, 'Did you travel anywhere or was it a stay-at-home holiday?' and you said - - - ? ---

A: Mr Allan, I thought it was a vague question, a confusing question. I answered it the best way I could.

Q: Did you think that my question, 'Did you travel anywhere or was it a stay-at-home holiday?' was vague?---

Q: Is that why you didn't tell the court about the Philippines?---

A: You never asked me about the Philippines, Mr Allan."[64]

211 The defendant submitted that Mr Dahoud's explanation - that he was not asked a direct question about whether he travelled to the Philippines - was unconvincing and reflected adversely upon his credit. Having reviewed the transcript and having had the benefit of observing Mr Dahoud over Zoom and watching him give evidence over two days, while he did not mention he had travelled to the Philippines when first asked whether he had taken a holiday, I do not accept that he deliberately withheld information or that his answers reflected adversely on his credit.

212 In considering the issue of credit, it is relevant, in my opinion, that Mr Dahoud has a limited education and, to my observation, may well, as he said, have found the questions confusing. Although on the second day of his evidence Mr Dahoud was more argumentative than the first day, my assessment of him in the witness box was that he was doing his best to answer the questions asked of him. He may, at times, have been a poor historian, but I do not consider that he was wilfully dishonest, or that any major credit issue arises with respect to his failure to mention travel to the Philippines.

213 Second, it was submitted that Mr Dahoud displayed a willingness to lie to his general practitioner, Dr Hin, to obtain a supportive letter to enable Mr Dahoud to move apartments. The defendant said it was clear Mr Dahoud told Dr Hin that he was working, that there was an issue with a pipe in his apartment and this had caused him to lose his job, when these matters were not true. It was submitted that Mr Dahoud did not tell the truth because he knew not telling the truth would increase his chances of getting the doctor to write him a supportive letter to get him moved out of his Department of Housing apartment, which is what the doctor did.

214 The letter Dr Hin wrote dated 18 November 2019 said:

John has presented today at your request for a letter of support.

He tells me that he has lived in his current dwelling since 2013 and has been struggling with noise and vibration from a boiler room above his apartment.

He tells me that as a result of the all night noise level, he is unable to sleep which has exacerbated his anxiety and depression. Consequently this has affected his ability to engage with work and he tells me that he has lost his job.

He is also concerned about [t]he health of his two young children who are also exposed to this level of noise. . He tells me that the entire family has to sleep in cramped conditions in the living room to find the quietest part of the apartment."[65]

215 When cross-examined, Mr Dahoud was taken to the letter and asked:

Q: "... So was there an issue with a water pipe making a humming noise in November 2019?---

Q: That was having a real effect on your mental wellbeing?---

A: And my family's wellbeing, sir, and mine also, yes, sir.

A: Yes, in more ways than one, yes. It would have, it would have. I'm not sure that I was working at that time, sir.

Q: That's what I want to ask. What job is the GP talking about there, do you know when it says, 'Cost me my job and health'?---

A: No, 'It cost me my job and health,' I'm not really sure, I can't remember saying - I know what you're thinking, you're saying everything I'm stuck with I'll say to you I can't remember but that is not the case. If you can imagine living under a water piston pipe humming and noise, making noise in the middle of the night and the rattling, yes.

Q: So when it says, 'Cost me my job,' have you got any explanation for what that means?---

A: Mr Allan, I suppose I probably - I'm not sure why I probably said that if I did say that. It's only the fact I was so desperate to get out of my apartment, to get me children moved from there, I would have said and done anything for them to come and check it out to see that it was real and for me to obtain a shift from the floor that I was on to a different level I needed all that stuff to - I don't know what you want me to say. Did I lie about it costing me job? If you want to look at it that way, sir, you can look at it. I will not disagree with it but I don't lie about stuff like that. I don't know - I think I would have just said that to help me move out of the flat as soon as possible.

Q: So is it possible you told your GP an untruth so your GP would ... support you moving out of the flat?---

A: No, sir. No, sir, not at all, not at all. You can't take three letters, three words and say I lied to the GP, sir.

Q: You see that sentence there, it's in quotation marks, 'Cost me my job and health,' you see that?---

Q: I suggest to you you did tell the GP that, Mr Dahoud. Do you agree or disagree?---

Q: I suggest then if you told the GP that, 'The water pipe had cost me my job', that was untrue?---

A: Yes. Why don't you just say - you want to call me a liar, you once said I'm a liar - call me a liar - call me a liar. I will agree to that, but I don't agree with how you're trying to paint me here."[66]

216 Mr Dahoud ultimately agreed he did tell Dr Hin the water pipe had cost him his job and that what he had told Dr Hin was untrue. He made the concession after commenting he was not sure if he was even working at the time, or if he had made that statement to Dr Hin. It was nevertheless a statement which he accepted to be false. I have considered this evidence carefully. It is an example of a prior occasion where something was said by Mr Dahoud that was not true. In that sense, it does generally impact his credit. It is not an example though, of Mr Dahoud giving deliberately false evidence, or exaggerating or diminishing his symptoms to doctors in, or for, the purposes of this proceeding. I consider it to be of limited importance.

217 Third, the defendant submitted that Mr Dahoud's evidence that his employment was terminated because of the problems he was experiencing with his neck was not supported by the objective documents, and the only evidence that Mr Dahoud's employment came to an end because of difficulties with his neck was from Mr Dahoud himself. It was submitted this impacted Mr Dahoud's credit. In my view, this is not a fair reflection of the evidence. Mr Dahoud said, in his affidavit, that he struggled with work at GJK, but he was forced to resign to obtain the back pay which was owing to him.[67]

218 In cross-examination, Mr Dahoud said he took GJK to court to get his seventeen to eighteen weeks' backpay.[68] He said he had stress at work because of his back pain, the problems he was having with Mirco, and "how head office didn't help".[69] He said his mental health was so bad that he was considering harming himself.

219 Similarly, Mr Dahoud said he struggled at PVHM, but his employment was terminated as the business was downsizing.

220 In neither case did his affidavit say his employment was terminated because of problems with his neck. On the contrary, his position, as I understood his evidence during cross-examination, was not that his employment was terminated because of his neck injuries, but rather because he could not do the job.[70] I do not consider that this aspect of Mr Dahoud's evidence impacted his credit.

221 Fourth, the defendant relied upon the video surveillance footage obtained of Mr Dahoud, which was said to show Mr Dahoud moving his neck freely with no discomfort. This was said to be totally inconsistent with what had been noted by the doctors on examination and the photographic evidence obtained by Dr Aliashkevich as to Mr Dahoud grimacing upon turning his neck. The video surveillance footage obtained by the defendant was just over 6.25 hours. Only a short extract was played in Court. There was some very brief footage of Mr Dahoud turning his head - apparently relatively freely - as he was crossing the road, and another extract of Mr Dahoud moving his neck as he was walking down the street. It was put to Mr Dahoud he was moving his head freely. He disagreed with this proposition. He commented that the defendant had played a "thirty-second video of nothing" and had then suggested to him he was lying. He said he disagreed he could move his neck freely. He disagreed he was not experiencing pain. He disagreed he moved his neck less when he was examined by doctors.

222 Having watched the surveillance footage, I accept what Mr Dahoud said about the footage. The extracts relied upon by the defendant provided only a very limited snapshot of the extent of Mr Dahoud's impairment. There was some movement of his head from side to side, but nothing turns on this. Mr Dahoud would be expected to attempt to turn his head to cross a road, and, as he said, that did not mean he did not have pain. It is also to be expected that his pain levels might fluctuate. He may have days where he would be capable of doing more than on other days. Even if the conclusion I have reached with respect to the video surveillance is not correct, the surveillance footage provides only some basis from which to evaluate Mr Dahoud's overall credit. It does not provide the entire picture.

223 Fifth, the defendant also relied upon Mr Dahoud's general demeanour when giving evidence, including that he was argumentative, uncooperative, and unwilling to answer questions in a straightforward manner. From my observation of Mr Dahoud, his demeanour on the second day he was cross-examined was more argumentative and less spontaneous than the first day. There could be many reasons why this was the case.

224 I am conscious that Fox v Percy[71] casts doubt on the ability of judges to make accurate credibility findings based on demeanour and that, as far as possible, fact finding should be informed "on the basis of contemporary materials, objectively established facts and the apparent logic of events".[72] I am also mindful the case must be decided on the whole of the evidence. Having considered the tenor of Mr Dahoud's evidence overall, including objective evidence of his injury which is unaffected by his credit, as well as the way Mr Dahoud presented to his doctors, how he described his pain, and how he was observed to behave on video surveillance footage and in Court, in my view, Mr Dahoud was overall a credible witness.

225 Notwithstanding the view I have formed, given Mr Dahoud's admission that some information he had provided to Dr Hin was not truthful, I accept that it is necessary for me to carefully consider Mr Dahoud's evidence as to the claimed impairment consequences, taking into account the objective medical evidence and all evidence.

226 The next question to be answered is whether Mr Dahoud's injury is in fact a "serious injury", either in respect of pain and suffering consequences, or loss of earning capacity consequences.

227 Dealing first with the loss of earning capacity consequences, the plaintiff is required to satisfy the Court, among other things, that the claimed impairment caused a loss of earning capacity of at least 40 per cent.

228 Mr Dahoud submits that he is no longer able to work at all and, consequently, he has sustained a loss of earning capacity to the requisite degree. He submitted that he could previously work as a cleaner. He was able to return to work for a short period after his injury on 2 February 2016, but eventually he got to the point where he could no longer cope, even using prescription medication, and now he has no capacity for his pre-injury employment at all and no residual employment capacity.

229 The defendant submitted, consistent with the reports of Dr Barton and Dr Dickinson, that Mr Dahoud had physical capacity for full-time suitable employment in the roles outlined in the Recovre report, namely as a packer, product assembler or meter reader. Further, if he is being held back from employment, that is not because of an organic injury to his neck, but rather because of psychosocial factors.

230 Dr Slesenger, in his report dated 1 July 2021, opined that Mr Dahoud had been advised against returning to his pre-injury employment with GJK as the job demands lay outside his capacity limits.

231 Dr Barton examined Mr Dahoud on 10 December 2020 and concluded that he had the capacity to return to work. Dr Barton took a history of Mr Dahoud's injury on 2 February 2016. He did not take a history, it seems, of any other relevant musculoskeletal problems or injuries. Importantly, he did not identify the earlier 2013 neck injury. He commenced his assessment from the starting point that there was no earlier injury when, in fact, that was not correct.

232 Upon examination of Mr Dahoud, Dr Barton noted "much gasping, grimacing and groaning throughout the assessment". He also observed that the neck and chest area showed marked areas of tenderness and pain to light touch. Neck movements were reduced to about one third of the expected range. He opined this reflected "a considerable degree of illness behaviour".[73] Had Dr Barton been aware of the earlier neck injury in 2013, his opinion may well have been different. As Dr Barton's report commenced from an incorrect premise, I prefer the opinion of Dr Slesenger with respect to Mr Dahoud's ability to return to his pre-injury employment, and I find that Mr Dahoud is unable to return to his pre-injury employment.

233 An inability to return to his pre-injury employment is a "very considerable" loss of earning consequence for the purposes of s325(2)(c)(ii) of the Act. At the time Mr Dahoud ceased employment with GJK, he had worked with them for fifteen years. There was no evidence that he had not worked hard. On his own evidence, it was not glamorous work. It was hard work, and it was carried out in difficult circumstances. Nevertheless, he enjoyed his job and derived a sense of fulfilment from it. After his injury, he attempted to return to work, but he was unable to cope, and ultimately his employment with GJK ended. I am satisfied that the loss of earning capacity consequence for him is, when judged by comparison with other cases in the range of possible impairments or losses of a body function, "more than 'significant' or 'marked'" and "at least very considerable". I find that Mr Dahoud satisfies that part of the statutory provision.

234 It remains to consider whether Mr Dahoud has a capacity for any employment, including alternative employment, which, if exercised, would result in him earning more than 60 per cent of the gross income from personal exertion, as determined in accordance with s325(2)(f) of the Act, had the injury not occurred. This requires consideration of whether there are "suitable employment" options available to Mr Dahoud other than his pre-injury occupation, and whether he has a lack of motivation to obtain alternative employment.

235 In the Recovre report, the defendant has put forward a series of possible employment options which, it says, constitute suitable employment that Mr Dahoud could perform. Specifically, the Recovre report identifies low-skilled manual roles for Mr Dahoud such as packer, product assembler or meter reader.

236 Counsel for Mr Dahoud submitted that, given the nature of his pre-injury employment and his incapacity, as well as his age, the fact that he has no valid qualifications, that he cannot read and write English, has poor grammar and spelling, has poor computer skills, and continues to use 2 grams of marijuana per day, it is unlikely that he will be able to reliably perform any of the roles identified by the defendant. Consequently, he does not have a capacity for suitable employment.

237 The defendant submits that Mr Dahoud has a residual capacity for work. In support of its position, it relies on the opinions of Dr Ghan, Dr Barton, and Dr Dickinson, as well as the consistent opinion of Dr Daff, that Mr Dahoud should continue to address his pain by getting back to work. It points to the absence of evidence put forward by Mr Dahoud to support a total incapacity. Further, it relies upon the fact that, since the incident on 2 February 2016, Mr Dahoud has had the ability to travel overseas on many occasions and to engage in full-time uninterrupted and reasonably arduous work as a cleaner for GJK and PVHM. The defendant submitted the periods of employment undertaken by Mr Dahoud after the incident on 2 February 2016 demonstrated his substantially retained capacity for work on a purely organic basis. To the extent those cleaning jobs were terminated, the defendant's position is that this occurred for reasons unrelated to Mr Dahoud's neck injury.

238 I have considered the opinions of Dr Slesenger, Dr Barton, and Dr Dickinson, as well as the matters set out in s3 of the Act, as expanded upon in Barwon Spinners[74] and Richter v Driscoll & Ors.[75]

239 In his report dated 13 August 2021, Dr Dickinson considered that Mr Dahoud could return to his pre-injury duties on a full-time basis and could also perform the duties detailed in the Recovre report. Mr Dahoud was assessed as having few transferrable skills, but Dr Dickinson considered that he would be suited to working as a packer or a product assembler. He said there would also be no physical restriction on Mr Dahoud working as a meter reader.

240 Similarly, Dr Barton specifically considered the Recovre report in his second report dated 13 August 2021. His opinion was that he could see no reason why Mr Dahoud could not undertake the duties detailed in the Recovre report, disregarding the contribution of any pre-existing, or other non-work-related condition, and considering the neck injury on 2 February 2016 in isolation.

241 Dr Slesenger was not provided with the Recovre report and, therefore, did not opine about whether Mr Dahoud has capacity for the roles identified in the report. His opinion, however, is that it is unlikely Mr Dahoud would be able to work in any role for which he has suitable training and experience on a consistent and reliable basis, having regard to the matters to be considered in s3 of the Act.

242 Dr Dickinson is not an occupational physician. I therefore consider that his opinion is of lesser weight than that of either Dr Slesenger or Dr Barton.

243 I have considered Dr Barton's opinion that Mr Dahoud has a residual capacity for suitable employment in the roles identified by Recovre. However, because there is no evidence before me that Dr Barton was made aware of the very significant practical difficulties which Mr Dahoud would face in physically performing the jobs identified, including matters such as Mr Dahoud's level of education and his psychosocial and drug-dependency issues, I am not satisfied that these matters were considered by Dr Barton. In my view, given the degenerative nature of Mr Dahoud's condition, the current state of his pain, his inability to undertake significant manual duties, his ongoing substance-use issues, as well as his educational limitations, I am not satisfied that he has capacity, in a real and practical sense, to undertake the employment options identified by Recovre. For that reason, I accept the opinion of Dr Slesenger that Mr Dahoud is unlikely to be able to perform any role consistently and reliably.

244 The defendant further submits, based on Dr Ghan's report, that Mr Dahoud could return to work, but he lacks motivation to do so.

245 I have identified above my criticisms in respect of Dr Ghan's report. In my view, they extend to his description of Mr Dahoud as lacking in motivation.

246 Dr Ghan's report proceeds from an incorrect factual basis that Mr Dahoud had not returned to work and he lacked motivation to do so. In fact, as counsel for Mr Dahoud submitted, he had returned to work twice. The evidence also suggested that he has been profoundly affected by his inability to meaningfully participate in the workforce. I find that Mr Dahoud did make reasonable attempts to return to the workforce and to participate in rehabilitation and training.

247 Having considered all the evidence, I have reached the conclusion that Mr Dahoud is no longer able to work in his pre-injury employment. Nor does he have capacity to undertake the suitable employment options identified by Recovre. I also find that he does not lack motivation to return to work. He is simply unable to do so. I am consequently satisfied that his claimed impairment has caused him a loss of earning capacity of the requisite degree.

248 Dr Barton considered that Mr Dahoud claimed to be profoundly affected by his problems in regard to his general life activities. He believed that was typical of "abnormal illness behaviour approach to a compensation injury". However, as set out above, he started his analysis from the position that the only injury Mr Dahoud had sustained was the injury on 2 February 2016. He did not identify the earlier 2013 neck injury. Because of this, in my view, his assessment of the likely permanence of Mr Dahoud's injury is of limited assistance.

249 Dr Slesenger considered that Mr Dahoud required further assessment of his neck, left shoulder and left upper limb. He recommended that he return to his general practitioner and undergo imaging of his cervical spine to exclude thoracic outlet syndrome and that he also undertakes nerve conduction studies to his left upper limb to exclude carpal tunnel syndrome. He considered that the question as to whether Mr Dahoud's incapacity was permanent was a difficult question to answer.

250 Mr Dahoud had functional limitations and was required to avoid sustained forward reaching, shoulder pulling, pushing, pulling, carrying, and lifting over 3 kilograms on a repetitive basis. He was unable to push and pull forcefully and needed to avoid exposure to local vibration. He was unlikely to be able to return to work in a role for which he has suitable training and experience on a consistent basis.

251 Dr Slesenger was optimistic that with further treatment Mr Dahoud would see an improvement in his symptoms and functional capacity. Notwithstanding this, he concluded that he was guarded in his prognosis.

252 The guarded prognosis, in conjunction with the longevity of Mr Dahoud's condition, tend to suggest that despite a level of optimism, it was far from certain that Mr Dahoud's condition would improve. In short, even if Mr Dahoud underwent imaging of his cervical spine to exclude thoracic outlet syndrome and completed nerve conduction studies to his left upper limb to exclude carpal tunnel syndrome, there is no certainty that such approaches would be likely to alter the underlying prognosis. This is particularly the case, given Mr Dahoud's medical history, the difficulty he had in recovering from earlier injuries and the psychological issues that developed. Mr Dahoud's condition is now longstanding. Based on all the evidence, in my view, the requirement to show that the consequences of the injury are permanent is met. The injuries will persist for the foreseeable future, I find they are permanent.

Pain and suffering consequences - "serious injury"

253 It is not strictly necessary for me to go further and to consider whether Mr Dahoud's pain and suffering consequences of the aggravation injury alone are also "serious". For completeness though, in my view, this aspect of the application is also made out.

254 Consistent with the relevant medical evidence, I have found that the cervical spine/neck injury Mr Dahoud sustained in late 2013 was asymptomatic immediately prior to 2 February 2016. Consequently, there were no impairment consequences of the late 2013 neck injury which were still operative immediately prior to 2 February 2016.

255 The assessment of serious injury must be made at the time that the application is heard by the Court in accordance with s325(2)(j) of the Act. Consequently, it is necessary that I make an assessment of Mr Dahoud's current impairment consequences.

256 In his first affidavit sworn 4 August 2020, Mr Dahoud deposed to a series of consequences of his injury on 2 February 2016. In accordance with his affidavit sworn 15 September 2021, many of those consequences continue.

257 Mr Dahoud says he experienced left-sided neck pain and pain in the region of his shoulder blade and chest immediately following the injury on 2 February 2016. He continues to suffer from neck pain, worse on the left side, extending into his shoulder blade and upper chest areas. Pain radiates down his left arm and into his left hand. His pain continues to be aggravated by heavier lifting.

258 In cross-examination, he said that following the incident on 2 February 2016, he went to work in a lot of pain. He saw Dr Wilson with left-sided neck pain.

259 Mr Dahoud was also taken to a questionnaire that he filled out for Ms Riglar, in which he answered a series of questions categorising his pain. Mr Dahoud said that, as of May 2016, he was never pain free.[76] His pain was confusing to him, both in relation to the source of the pain and the amount of pain.[77] He was continuously in pain.[78] Even now he said that "I'm in serious pain and I need to get something done about my neck".[79]

260 Mr Dahoud's pain was consistent with the injury I have found he sustained.

261 Mr Dahoud's experience of his pain was also consistent with the observations of Dr Aliashkevich, who reported that Mr Dahoud had pain in the left side of his neck, his left shoulder, his left chest, the back of his head and his left jaw. He reported the intensity of the pain as being a high of 7 out of 10 on a day without activity and a 10 out of 10 on a bad day. He described the pain beginning with a tingle and propagating to a burning and tearing sensation. The pain was worse with sudden movements.

262 The pain was also consistent with what was observed by Associate Professor Goldwasser, who reported that Mr Dahoud found neck movements difficult, particularly turning and tilting. Neck movements were restricted, particularly rotation and lateral flexion to the right. There was also tenderness, most marked to the left side of the base and middle of his neck, and lesser so in the midline.

263 Mr Dahoud said he no longer takes Endep and Lyrica, or other prescription medications. He said, in evidence, that those medications were not working for him. He said in re-examination that:

"... It was making me feel sick, uncoordinated, tired, lethargic - I was definitely in no position to do any work on a building site in Richmond where there was multiple things happening, of all crime, drug-selling, drug-dealing and for me to go to work in a building like that I would have just been an easy pigeon to get."[80]

264 He sometimes takes over-the-counter Nurofen and uses Voltaren or similar creams, as well as heat and ice packs. Additionally, he now self-manages his pain using marijuana.

265 Mr Dahoud continues to sleep poorly because of his neck pain.

266 Mr Dahoud cannot lift, carry, and play with his young children. He can no longer coach junior football. He continues to be restricted to lighter duties around the house because of neck pain. He can set and clear the table. He cannot clean or mop. His wife does the laundry and most household duties and cooking. As he said in cross-examination:

"... [a]nything I do, whether it is shopping, whether I was trying to help around the house, whether it's lifting up my children, I get pain from everything, sir ... ."[81]

267 His sexual relations have been reduced because of neck pain and spasm. He has been unable to return to his pre-injury employment as a cleaner, and Dr Slesenger says he is not fit to do so.

268 In assessing the consequences of the injury, I am required to consider the consequences to this plaintiff, viewed objectively. Clearly, to Mr Dahoud, subjectively, the consequences were "very considerable". He has lost his ability to work in a job that he enjoyed and to earn a living to support his family. This is a significant pain and suffering consequence for him. When all the evidence is taken in combination, together with the medical evidence discussed, and the impairment consequences are considered objectively, in my view, the aggravation injury alone to Mr Dahoud's cervical spine on 2 February 2016 produces "very considerable" pain and suffering consequences such that the aggravation injury when considered objectively, is a "serious injury".

269 The defendant submitted there was no organic basis for Mr Dahoud's claimed impairment consequences and any symptoms and consequences now affecting him are the result of non-organic pain, or are based on psychosocial factors, and are the same symptoms as were present immediately before the 2 February 2016 neck injury.

270 As set out above, I consider that there is a substantial organic basis for the relevant consequences relied upon. Having made that finding, it is unnecessary for me to undertake the second step in the Meadows v Lichmore[82] analysis and seek to disentangle the physical contribution to the pain from any psychological contribution.

271 Although unnecessary, had I been required to "disentangle" the physical and psychological impairment consequences, I would have been required to strip away the consequences which were present immediately before 2 February 2016 and which persist now. This may have meant that some of the current impairment consequences would have been required to be stripped away.

272 In addition to the ongoing pain Mr Dahoud experiences, there would, nevertheless, have been at least one very substantial relevant consequence remaining: Namely, Mr Dahoud's inability to return to his pre-injury employment as a cleaner. Considering the consequences in the context of Mr Dahoud's circumstances, the inability to return to his pre-injury employment is a very significant pain and suffering consequence for Mr Dahoud, which has had a very considerable impact upon him. Even if I had been required to disentangle his impairment consequences, the conclusion I have otherwise reached would have remained the same and he would, nevertheless, have sustained a "serious injury".

273 Accordingly, leave shall be granted to Mr Dahoud to commence a proceeding for pain and suffering damages and for pecuniary loss damages.

[2] Barwon Spinners Pty Ltd & Ors v Podolak [2005] VSCA 33; (2005) 14 VR 622 ("Barwon Spinners") at paragraph [33] (per Ormiston, Chernov and Phillips JJA)

[3] Cairns v Trowelcoat Pty Ltd [2014] VSC 129; Heuston v Yore Contractors Pty Ltd, (Unreported), NSWSC, 9 March 1992 (per Hunt CJ)

[4] Ansett Australia Ltd v Taylor [2006] VSCA 171 at paragraphs [41] and [46]; Fokas v Staff Australia Pty Ltd [2013] VSCA 230 at paragraph [32]

[5] Barwon Spinners (supra) at paragraph [11]

[6] Section 325(2)(b) and (c) of the Act and Humphries and Anor v Poljak [1992] VicRp 58; [1992] 2 VR 129 ("Poljak") (per Crockett, McGarvie and Southwell JJ) at 140

[7] Petkovski v Galletti [1994] VicRp 32; (1994) 1 VR 436 at 443 ("Petkovski")

[8] De Agostino v Leatch [2011] VSCA 249 at paragraphs [60]-[61]

[9] Petkovski (supra) at 444; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz [2012] VSCA 60; (2012) 34 VR 309 at paragraph [34]; Dean v Crossway Holdings Pty Ltd [2011] VSCA 198 at paragraph [72]; Lu v Mediterranean Shoes Pty Ltd [2000] VSCA 65; (2000) 1 VR 511

[12] Meadows v Lichmore [2013] VSCA 201 ("Meadows") at paragraphs [21]-[24]

[13] Jayatilake v Toyota Motor Corp Australia Limited [2008] VSCA 167 at paragraphs [24]-[29]

[15] Meadows (supra) at paragraphs [21]-[23]; Peak Engineering Pty Ltd v McKenzie [2014] VSCA 67 ("Peak")

[16] Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69; (2010) 31 VR 1 ("Haden")

[17] Haden (supra) at paragraph [16]

[18] Haden (supra) at paragraph [15] (per Maxwell P); Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326 at paragraph [35]; Peak (supra) at paragraph [38]; Demmler v Transport Accident Commission [2018] VSCA 284 at paragraphs [59]-[60]. .

[19] Johns v Oaktech Pty Ltd [2020] VSCA 10

[20] Haden (supra) at paragraph [12], citing Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 at paragraph [8]; Sejranovic v Berkeley Challenge Pty Ltd [2009] VSCA 108 ("Sejranovic") at paragraph [171]); Sabanovic v Atco Controls Pty Ltd [2009] VSCA 143 at paragraphs [142]-[145]

[21] Dordev v Cowan [2006] VSCA 254 at paragraph [14], per Chernov JA (Maxwell P and Neave JA agreeing)

[22] Cakir v Arnott's Biscuits Pty Ltd [2007] VSCA 104 ("Cakir"); Sejranovic (supra) at paragraph [146]

[23] Franklin v Ubaldi Foods Pty Ltd [2005] VSCA 317

[24] Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 628; see also Sabo v George Weston Foods [2009] VSCA 242 at paragraph [67]

[25] Victorian WorkCover Authority v Papaconstantinou [2021] VSCA 145 referring to Yirga-Denbu v Victorian WorkCover Authority (2018) 57 VR 545, 573 at paragraph [89]

[26] Cakir (supra) at paragraph [49]; Petrovic v Victorian WorkCover Authority [2018] VSCA 243 at paragraph [76]; Pulling v Yarra Ranges Shire Council [2018] VSC 248 at paragraph [51]; Ryan v Bunnings Group Ltd [2020] ACTSC 353 at paragraphs [27]-[29]

[27] Giankos v SPC Ardmona Operations Ltd [2011] VSCA 121; (2011) 34 VR 120 at paragraph [115]

[29] (2016) 51 VR 95

[31] [2019] VSC 376

[32] Amended Plaintiff's Court Book ("APCB") 64

[34] Supplementary Defendant's Court Book ("SDCB") 277

[57] Transcript ("T") 25, Lines ("L") 27 ꟷ T26, L2

[71] [2003] HCA 22; (2003) 214 CLR 118 at paragraph [31]