Axiak v Victorian WorkCover Authority

[2019] VCC 833

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No.  CI-18-04820

JOSEPH AXIAK	Plaintiff
v
VICTORIAN WORKCOVER AUTHORITY	Defendant

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JUDGE:	HER HONOUR JUDGE K L BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:	7 and 8 May 2019
DATE OF JUDGMENT:	13 June 2019 (Revised)
CASE MAY BE CITED AS:	Axiak v Victorian WorkCover Authority
MEDIUM NEUTRAL CITATION:	[2019] VCC 833

REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION

Catchwords:          Serious injury application – impairment of the lumbar spine – pain and suffering – loss of earning capacity

Legislation Cited:   Workplace Injury Rehabilitation and Compensation Act 2013, s335(2)(d)

Cases Cited:Barwon Spinners & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia (2006) 14 VR 602; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Acir v Frosster Pty Ltd [2009] VSC 454; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170; Giankos v SPC Ardmona Operations Ltd (2011) 34 VR 120; Weldemichael v ID Sales & RepairsPty Ltd [2019] VSCA 68; Richter v Driscoll [2016] VSCA 142; Yirga-Denbu v Victorian WorkCover Authority [2018] VSCA 35; Harris v DJD Earthmoving Pty Ltd [2016] VSCA 188

Judgment:Leave granted to bring proceedings for damages for pain and suffering and loss of earning capacity.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D J N Purcell SC with Mr J Valiotis	Arnold Thomas Becker
For the Defendant	Mr J P Gorton QC with Mr P Czarnota	Thomson Geer

HER HONOUR:

Preliminary

1This is an application for leave to bring proceedings pursuant to s335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (“the WIRC Act”) in relation to an injury by the plaintiff suffered during the course of his employment with Barro Admin Vic Pty Ltd (“the employer”) between 2015 and December 2017 (“the said period”).

2The relevant body function is the lumbar spine.

3The plaintiff bears an overall burden of proof upon the balance of probabilities.

4By s325(2)(b) of the WIRC Act, the impairment must have consequences in relation to pain and suffering which:

“… when judged by comparison with other cases in the range of possible impairments, or losses of a body function or disfigurement, as the case may be, fairly described [as at the date of the hearing] as being more than significant or marked, and as being at least very considerable.”

5I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury.  Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.

6Subsection s325(2)(h) of the WIRC Act provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.

7       In this application, where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of 40 per cent or more, both at the date of hearing and permanently thereafter.

8       Subsections (2)(e) and (f) recite the formula by which loss of earning capacity is to be measured.

9       Subsection (2)(g) requires questions of rehabilitation and retraining be considered in determining whether the 40 per cent loss has been established.

10I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[1] and Grech v Orica Australia Pty Ltd & Anor[2] in reaching my conclusions.

[1](2005) 14 VR 622

[2](2006) 14 VR 602

11The plaintiff swore two affidavits and was cross-examined.  Further, he relied on an affidavit sworn by his wife, Rodianne, on 29 April 2019.  Also in evidence were medical reports and other material.  I have read all the tendered material.

The Plaintiff’s evidence

12      The plaintiff is forty-four, having been born in Malta in July 1974.  He migrated to Australia in 1983 and completed his schooling in Australia at St Albans Technical School to Year 8.

13      The plaintiff had difficulties with English at school and he is also unable to read and write in his native tongue, Maltese.[3]  He can write his name but cannot he write his address, and has to look at his licence and copy it.[4]

[3]Transcript (“T”) 8

[4]T7

14      After leaving school at fourteen, the plaintiff and his family moved back to Malta in 1988.  He worked in a pizza shop operated by his father in Malta and in 1993, he opened his own takeaway/pizza shop, where he worked until around about 1998.[5]

[5]T8

15      The plaintiff moved back to Australia in 1998 and worked as a labourer with Vella Furniture for about five years.  He also did some odd labouring jobs over this period in the construction and demolition industry.

16      In 2003, the plaintiff moved back to Malta – initially for a holiday – however, he re-opened the pizza shop and worked there for the next seven years.  He did most of the cooking but no paperwork.  He did not know what the word “administration” meant.[6]

[6]T10

17      The plaintiff met his wife, Rodianne, in Malta, and they married in 2006.  Their eldest daughter, Shania, was born in 2007.  They then moved back to Australia in 2010 and their second daughter, Sienna, was born in 2013. 

18      The plaintiff obtained employment with the employer in 2010 as a machine operator.  He obtained a Certificate IV in Quarry Operations and also obtained the various licences to operate machines that are used in quarries.

19      The plaintiff was able to get the certificate without being able to read and write.  His wife read the paperwork to him.  He gave the answer, and she wrote it down.  This licence included certification for work as a load operator, excavator, breaker and screening licence under heading of quarry operations.[7] 

[7]T7

20      The plaintiff worked at a bluestone quarry site in Wyndham Vale.  He was the dump truck operator, as well as the front-end loader.  Initially, he worked on all the machines on the site but in the end, he became a permanent employee using the sales loader which was the loader used up front to load up the rock that had been sold in trade.

21      The plaintiff was moved to dayshift when he was using the sales loader, a 988 CAT H, which was fitted with a short back seat.  He is relatively tall, being approximately 188 centimetres in height and the 988 did not suit him.  He complained to his boss, David Debrincat (“Dave”), in December 2014 about the seat being too low and causing him back discomfort.  The seat offered the plaintiff no support from the middle to upper back and the movement of the machine jolted and jarred him a lot.

22      There was the option of using the Komatsu loader which had much better back support; however, the plaintiff was directed to use the 988.  He continued to use this machine throughout 2013 and 2014, but by the end of 2014, his back was getting really sore and despite the fact that he advised the employer of his difficulty, nothing was done about replacing the machine.

23      The seat was eventually replaced with a new one; however, it was the identical height as the old one and left the plaintiff with the same problem.  He told Simon Curmi, his supervisor, that the new seat did not fix the problem and the new seat was replaced with a second-hand higher backed seat; however, this was also no good as the suspension from the seat made the seat bounce.  This lasted a couple of weeks and in about April 2015, the plaintiff hit his head on the roof of the cabin. 

24      The plaintiff complained to Dave again, who told him that he was not just going to keep on changing seats for him.  The plaintiff was doing 12-hour shifts at that time.  He told Dave that he needed that seat to be fixed or the machine replaced because he could not just keep going like that.  The plaintiff even offered to buy the seat himself, but this offer was declined.

25      By April 2015, the plaintiff’s back was quite painful and sore.  He handed in a WorkCover Certificate and had an MRI scan.  He thought by that stage, the 988 machine had been changed for him and he was given a W A500, which was a much better machine.  He felt that by this stage, the damage to his back had already been done.  He went to his doctor by late May 2015 and was given time off work.  He believed that he worked consistently from December 2014 to May 2015 before going off work.

26      The plaintiff was off work for about a week, maybe two weeks, in May-June 2015, before returning to work on light duties, which was mainly office work.  In September 2015, he went to Malta to visit his ill mother.  He returned to Australia in October 2015 and his mother died a few months later.

27      The plaintiff returned to work with the employer in October 2015, remaining on light duties until April 2016.   Initially, he did some light duties in the office for a few weeks.  He then started working on the weighbridge in the quarry. 

28      The plaintiff only did the outgoing work.  He never did incoming because there was too much writing involved.  He did that job for twelve hours a day for five or six months, two months at Wyndham and then at Sunshine.[8]  It was a real job.[9]

[8]T15

[9]T16

29      The plaintiff was then cleared to resume normal duties, but to avoid machines and work that would cause jarring to his back.  He returned to work unrestricted, doing everything that was asked of him, working Monday to Friday, 12-hour days.  He was mainly working in the sales loader operating a 980K machine with a high back seat.

30      The plaintiff continued to work pretty hard, doing long hours and avoiding the more jolting parts of using machinery that he could.  His back was still sore and it ached when he got home; however, he was managing to the best of his ability.  He performed this job with this machine for the next twelve to fourteen months.

31      The plaintiff agreed that there was a period in late 2015 when his back improved after Sunshine.  He agreed he could have told Mr Jones in November that year that his back felt much better and there was some mild soreness.  He had had no problems on a holiday to Malta.  He thought he would be able to spend six hours on the loader. 

32      By March the following year, the plaintiff agreed that when he saw Dr Brown, he was able to move in an unrestricted and pain-free manner, and he did not feel much pain.  By April 2016, he had gone back to twelve hours a week on the front-end sales loader.[10]  He had been cleared to resume normal duties but to avoid machines that jarred his back.[11]

[10]T20

[11]T21

33      In about August 2017, the plaintiff was instructed to commence using the dump truck for work for four hours per day.  This was very bad for him as the driving aggravated his upper back symptoms which had still not recovered.  He again consulted Dr Sheriff, who provided him with a certificate/letter to stay off the equipment that would jar his back. 

34      Dr Sheriff told the plaintiff that he could go back on the machines but he had to tell his manager that he could not do all the machines.  The plaintiff then advised “Dave” of Dr Sheriff’s direction.[12]

[12]T22

35      As at September 2017, the plaintiff was driving the sales loader.  He had issues with the dump trucks but all other machines were okay.[13]  He also had problems the previous month when he started spending too much time on the wheel dump truck.  He used to do work on it for one-and-a-half or two hours pursuant to an agreement.  Then he would get off and go on the sales loader and on the grader. 

[13]T23

36      Things changed when the supervisors changed and the plaintiff was told that he had work for four days on the dump truck.[14]  After two hours, he started feeling the pain.  The seat was low on the dump trucks and they were bouncing all the time.[15]

[14]T70

[15]T24

37      The next day, Dave told the plaintiff if he “[didn’t] like it [to] go and find another job”, so he had to go on the machine.  Dave told him that the mutual agreement “doesn’t count anymore”.  He went on the dump truck for more than one day.[16]  He went on it maybe three times and said that he could not do it, and then he was stopped from going to work and told to stay at home.  There were then meetings with the “union bloke”.[17]

[16]T71

[17]T72

38      The plaintiff thought about a month after he gave the letter to Dave, he was called in by management/Fred to stay home until further notice.[18]  An evaluation was then carried out, during which the plaintiff advised he could not keep working on the machine for four hours.”[19]

[18]T32

[19]T33

39      The plaintiff believed that an assessment of his job was done whilst he was off work and by December 2017, his job had been terminated.  He has not returned to the employer.  He had become a problem for the employer because he was not capable of doing unrestricted work within a quarry setting, he had to use heavy machinery and unfortunately unless he was working in the office, where he was of little use, he could not do much else without suffering pain and aggravations.

40      The functional capacity evaluation (“FCE”) that was performed whilst the plaintiff was off work made it clear that the employer could not accommodate him with the restrictions as certified.  His employment was terminated on 15 December 2017.  He was paid his entitlements and given a separation certificate. 

41      Until being asked to do too much work on the dump truck, the plaintiff had a bit of pain but he could cope with it.  He agreed that he told Mr Pease in September 2018 that back then he had the odd pain here and there, and then he was asked to go back to dump truck duties.[20]

[20]T25

42      If the plaintiff had not been asked to go back on the dump truck, he would still be working with the employer, he assumed, working twelve hours per week.  There were ten machines that he could work on.  If he had been working on those machines, he would probably still be working there today.[21]

[21]T26

43      The plaintiff agreed with various lists and descriptions by Work Health and his doctor as to what machines were okay and which ones he could not use.[22]  He agreed there was lots of work on these machines that he was capable of doing at the quarry indefinitely.[23]

[22]T27 and 28

[23]T29

44      The problem was that the employer said they were not going to keep him on because they wanted someone who could work on every machine.  “No-one … works on every machine.”  He told the employer there were people doing twelve hours on the same machine.[24]

[24]T30

45      The plaintiff agreed that there were in fact plenty of jobs that he could have done for the employer and continue to earn in excess of $100,000, and if they offered him one of those jobs today, he would give it a go.[25]

Consequences as at June 2018[26]

[25]T31

[26]First affidavit

46      The plaintiff’s back was painful all of the time.  He was never free of soreness or discomfort.  It depended on how he was moving around, and the pain fluctuated.  If he was seated in the car and still for longer periods, the pain increased.  He was then not quite sure what work he could do because he had worked in construction or his own pizza shop in Malta.  The employer had heaps of jobs back at the quarry but they could not find one for him. 

47      The plaintiff’s education was poor.  He could drive heavy machines.  He had done labouring on constructions sites, concreting, bricklaying, and he had cleared construction sites from rubbish.  He could no longer work full time on an unrestricted basis.  He owned his own shop in Malta, which also meant carrying into the shop 25 to 50-kilogram bags of flour and salt, and being able to work long hours on his feet, hunched over kneading dough to make pizza.  It was a constant job with no breaks.  He could no longer operate his own shop. 

48      As of June 2018, the plaintiff believed that he was capable of doing some light work.  He had assisted his wife with several food preparation tasks running her pizza business.  These were not difficult tasks and he was capable of performing them comfortably for short periods.  He was capable of driving.

49      Up until a couple of months earlier, the plaintiff was taking daily Tramadol and Panadeine Forte.  He was trying to keep himself off medication and he took Panadol on a daily basis and prescription medication – Tramadol Sandoz on an “as needs” basis. 

50      The plaintiff had stopped working.  He had stopped going to the gym, and his ability to function normally in a pain-free manner had been compromised.  Pain affected his sleep on occasion because it was difficult to get to sleep with a sore upper back due to the discomfort of lying on the pillow a certain way.  When he could get to sleep, he could generally sleep okay for a few hours; however, a couple of times a week his sleep was disturbed due to upper back stiffness and he needed to change position, get up and walk around. 

51      The plaintiff used to love fishing whilst on a boat.  In the good weather, he went fishing most weekends.  He had done ocean fishing for tuna and had done charter fishing on numerous occasions.  He had always loved fishing.  In the course of the last few years, he had been on the boat a couple of times with friends, but it was too rocky, too unstable and it made his back feel painful and increased the soreness. 

52      The plaintiff was good with his hands.  That was all he had and all he had ever known.  He could manoeuvre rocks around with a front-end loader and he could make pizza and work in a pizza shop for many hours on end.  He had done lots of trades because he picked them up.  He was then not able to work in jobs that he had worked before and his sore back made it uncomfortable for him to do anything strenuous. 

53      The plaintiff was then back in receipt of weekly payments of compensation given that they were stopped for a few months after the termination of his employment.  He was grateful for this as he had a young family and he did not know what work he was capable of performing.  He had stopped fishing and boating, but, more importantly, he had not worked for more than six months and was stressing about what he could do. 

54      On 31 January 2018, the plaintiff was assessed by a Medical Panel after his impairment benefits’ claim was rejected.  The Panel found that he had an impairment of his upper/mid back, and he was granted a lump sum payment. 

55      The financial year ending 2017 was the plaintiff’s best earning year prior to the termination of his employment.  During that time, he earned a gross weekly income of $2,058.17. 

The Plaintiff’s earnings

Year ending 30 June

Gross income from

personal exertion

2010

$8,439.00

2011

$77,955.00

2012

$77,044.00

2013

$86,314.00

2014

$97,192.00

2015

$99,672.00

2016

$90,872.00

2017

$107,025.00

56      The plaintiff swore a second affidavit on 29 April 2019.  He continues to look for work and has tried to keep busy and active. 

57      The plaintiff and his family travelled to Malta in July 2018, where they stayed for about six weeks, returning on 1 September 2018.  The pizza wagon business did not operate between June and September 2018 as it is a seasonal business and it generally operates through the warmer months. 

58      The plaintiff has always been keen to return to work.  He completed the FCE and did all that was asked of him.  He kept in touch with friends in the construction industry and through a friend, he sourced a job with Altona North Rock Blasting (“Altona”).

59      The plaintiff was then still in receipt of WorkCover payments and had advised his case manager about the prospect of a job with Altona.  He was encouraged to give it a go and he did this and was placed on a front-end loader which was an old machine.  This was a poor option for him and he only lasted less than a day.  The vibration, motion and movement caused jarring in his upper back, driving over uneven ground, and he could not perform the job.  He told Xchanging of his difficulties.[27]

[27]T74

60      Through Nick Janides at Xchanging, the plaintiff has applied for numerous jobs.  At an interview for a truck driver’s job, the plaintiff told his prospective employer about his previous employment history and work injury.  He was not successful getting that job. 

61      Over the course of the past six months or so, the plaintiff has made as many as fifteen to twenty job applications.  They are easy to make by telephone using voice command technology, which Nick Janides had shown him.  He has not had any other responses other than from the truck driver's job, or any other interviews.

Pizza business 

62      In his second affidavit, the plaintiff deposed that from October 2018, he assisted his wife with the pizza wagon business.  Between October and the new year in 2019, there were occasional events; however, the business became busy from Boxing Day 2018 until Australia Day 2019 whilst based in Portarlington.  He and his wife were present every day, making and selling pizzas, setting up and cleaning up.  This is not difficult work and he is capable of doing it.

63      The pizza wagon is usually weekend work.  Weekdays are rarely operational unless it is booked for a function or an event.  The plaintiff’s wife operates the wagon and he frequently accompanies her to help out as it gets him out of the house.  He is capable of helping with whatever is necessary without having to pay someone else to assist.

64      The plaintiff has not received wages or income from the pizza wagon.  This is his wife's business, and expenses need to be paid for the ingredients.  He advised his Xchanging case manager when he was working and he advised that the plaintiff would remain on payments. 

65      The plaintiff has helped his wife with this business often and it has not been a secret.  She has had to pay other people to help her and this makes the business unprofitable.  He is not paid for the assistance he gives.  He is capable of performing this work and always has been.  It is a part-time, mainly seasonal food truck that is incapable of paying the family bills and not even close to generating the type of income that he made working for the employer.

66      The business was initially registered in both he and his wife’s names when it was bought some time in October 2016.  It was then transferred to his wife’s name in December 2017.  The trailer is parked in their driveway; it is not hidden.  The plaintiff has worked in the business and has nothing to hide in relation to his involvement. 

67      The plaintiff’s wife does the paperwork side of the business and she also does the serving.  This is not a difficult business to run.  They also have two young children and he has time to spare.  The business is not overly profitable and his wife and his accountant would be able to provide those details. 

68      The plaintiff explained the set-up of Giuseppe’s Pizza.  He built the trailer and designed it and put the oven on it.  It is a family business.  It is his wife’s business because she runs it.[28]  It is in her name now for tax reasons.  Every time she goes out, he has to help her.[29]  Sometimes he cooks and sometimes he does not.  He agreed it was not right to say he assisted his wife with food preparation tasks.  He did everything.  He sets up and drives there, packs up and drives home.[30]

[28]T35

[29]T37

[30]T37

69      Since late 2017, the plaintiff sometimes went out both days on the weekends and sometimes one day a week, sometimes two weeks, three weeks.  The last time they worked was Easter, and the next booking is in June or July.  The bookings are not every weekend.  In the colder weather it is quiet.  The plaintiff agreed he had never knocked back a booking because of his back condition.[31] He could not do the pizza work full time.[32]

[31]T55

[32]T75

Current work capacity

70      The plaintiff was paid weekly payments of compensation until approximately mid February 2019.  Payments were terminated on the basis that he was working despite the fact that he had made declarations about what he was doing, and WorkCover were aware of his involvement with the pizza business and he had deposed to his involvement in his first affidavit.  Termination of payments has made his life very difficult and put an enormous strain on his relationship with his wife and financially it has been a disaster as they are not able to meet their bills as he is not working presently.

71      The plaintiff remains incapable of performing the work that he did with the employer.  He remains incapable of performing heavier work that he has done his entire life.  He would not be capable of running a pizza shop as he knows what is required.  He is really upset about the way that he has been treated, as he believes that he has done all the right things.  He has notified Xchanging, spoken with his case manager and his doctor has certified him fit for modified duties for many months. 

72      The plaintiff is still applying for jobs and would like to be able to find some light work.  He believes that he is capable of at least part-time light work, but is unsure as to what he may be able to do given his lack of education and retraining.

73      The plaintiff remains keen on finding suitable work for his upper back.  He is capable of performing a whole range of tasks on an unrestricted basis and certified by his doctor as being capable.  His medical certificates make it clear that he is fit for full-time suitable duties where available.  He earned great money in his previous job and would be earning a lot more if capable of driving or using heavy machinery.  The big loss to him is the loss of his ability to perform unrestricted employment and this has resulted in an enormous financial loss to him and his family.

74      The plaintiff applied for a truck driver job via the agency.  When asked why he left his former job, he told the potential employer that he was sacked.  He was then told he could not be taken on.  He did not think he could have done this job as he had driven trucks before and they bounce.  So he would try it out.  If he went in a truck and it did not bounce, he could do it.[33]

[33]T58

75      The plaintiff confirmed that he would still be doing his old job for twelve hours if they had not put him on the wrong machine, but no one had asked him.[34]

[34]T58

76      From his experience, there were some weighbridge jobs where he would struggle because of the amount of paperwork involved.  He would struggle having to do incoming.[35]

[35]T18

77      If the plaintiff obtained work as a machine operator in a factory which did not require him to lift particularly heavy weights, of course he would try.[36]  He has never applied for such a job, or worked in that role.  The job agency applied for work driving food delivery small vans.  If he could get a job driving a van, the plaintiff would give it a go.[37]

[36]T59

[37]T60

78      The plaintiff had some experience as a crane operator in Malta but did not need a ticket there for that role.  He did not know if he could get a ticket here.  He agreed he would say he is physically and mentally capable of operating a crane, but not at heights.[38]  He also agreed he would be physically capable of working driving properly maintained equipment in a construction environment full time.[39]

[38]T67

[39]T68

Current pain and treatment

79      The plaintiff’s upper back remains stiff and sore and it has not gotten better.  In fact, he has felt pain in his neck and was sent for scans to his neck as well and he has been advised that there is also a bulge in his neck.  He has a sore upper back and a sore neck and despite the fact that the pain fluctuates, the back pain has not gone away and has not improved. 

80      The plaintiff said he had symptoms every now and then – mainly jarring, or sometimes turning the wrong way sets off his pain.[40]

[40]T73

81      The plaintiff continues to take medication for pain, including Panadeine Forte, two tablets per day, approximately four to five days per week.  He deliberately tries not to take these every day because he has also been advised that they are bad for him in the long run.  He takes one Mobic, one to two days per week.  He was taking Valpam two to three times per week to assist with relaxation and muscle tension.  As these tablets did not assist him, his general practitioner changed the prescription and the plaintiff now takes Endep tablets two to three times per week. 

82      The plaintiff is presently taking Panadeine Forte when needed, when he is feeling a bit sore.  He might go for a week without taking one if he can, but he would not go for several weeks.  Dr Sheriff prescribes medication to help him.[41]

[41]T57

83      The plaintiff attends hydrotherapy twice per week, still funded by WorkCover, and he was sent by Dr Sheriff for an MRI scan.  He does exercises at home and goes to the gym to do exercises and he tries to keep mobile to reduce the stiffness.

84      The plaintiff struggles to get to sleep and feels tired often.  It is a struggle to get to sleep due to spinal stiffness and pain.  He does not have too many problems around the house.  He is able to drive and do lots of things. 

85      The plaintiff finds it hard not trying to keep active and catches up with friends frequently.  He visits his brother and nephew, as they have a panel business, and he also makes job applications.  Moving around makes him feel better and he will continue to assist his wife with her business, although that will also close down shortly over the colder months.

Surveillance

86      On 4 November 2017, footage of the plaintiff in his garage and loading his ute and caravan between 8.01am and 8.45am was shown.  During this time, he made multiple trips from the garage to the ute, stood on the tray of the ute, checked under the ute’s bonnet and fitted a soft cover over the ute’s tray.  At 8.45am, he drove off in a different vehicle before returning at 9.24am to continue loading the ute.  He was then shown reaching into another vehicle parked in his driveway. 

87      On that weekend, the plaintiff had booked to go away.  He thought he went fishing at Lakes Entrance.  He was wearing a high vis vest.  He agreed he was able to climb into the tray of the ute and bend forward from the waist without any visible restriction.  He agreed it was a fair representation of how he could move.[42]  However, after he stepped down from the tray and was walking, he was “twitching”.[43]

[42]T40

[43]T40

88      On 11 November 2017, the plaintiff was filmed standing in his driveway at 7.12am before a vehicle arrived with a fishing boat attached.  The plaintiff then loaded fishing gear into the back of the vehicle before getting in the front seat and then being driven off.

89      At 8.06am, the plaintiff assisted his friend launching the boat into the water by undoing the winch strap and lifting the front of the boat off the trailer.  He then climbed into the boat in the shallow water and was shown standing up for approximately 3 minutes as the boat drove off into the deeper water. 

90      The plaintiff then arrived back at his house at 2.46pm, where he unloaded his fishing gear from the back of the vehicle.

91      The plaintiff loves fishing but could not go as much anymore.  He has not gone fishing in a boat since this date and this was the first time he had gone in two years.  At the end of the day, his back was painful.  When they were in the water the boat was bouncing.[44]

[44]T42

92      The last time the plaintiff had gone fishing was off the Queenscliff pier, the week before the hearing.[45]

[45]T44

93      Surveillance film was also shown of the plaintiff’s activities on 8 March 2018. 

94      On that date, the plaintiff was initially shown in his garage for approximately 30 minutes between 11.34am and 12.04pm. 

95      Thereafter, at 3.37pm, the plaintiff was filmed loading the pizza van onto the back of his vehicle and driving it to Knoxfield Cricket Club.  At 5.59pm, he unloaded the pizza van for approximately 40 minutes, before starting work making pizzas at around 6.40pm.

96      The plaintiff continued to work until approximately 8.30pm before packing up the pizza van and departing venue at around 9.07pm. 

97      The plaintiff did not know if he gave more detail about the business in his second affidavit after having seen this film.[46]

[46]T38

98      The plaintiff agreed that there was no difficulty with the work he was doing on that day.  He would always light the fire and stack the wood on the wagon at home before going to a worksite.[47]

[47]T48

99      The plaintiff agreed that he was shown at times bending.  His back did not stop him bending or squatting down and picking things up from ground level.[48]

[48]T49

100     The plaintiff’s wife posted details of the business on Facebook.[49]

[49]T53

Lay evidence

101     The plaintiff’s wife, Rodianne, swore an affidavit on 29 April 2019.  She is now aged thirty-five.  She met the plaintiff in Malta, they married and they have two daughters.  They have been together for around fifteen years. 

102     They registered the pizza wagon business “Giuseppe's Wood Oven Pizza” in both their names in 2016.  They both know how to cook pizza and do it well.

103     In December 2017, whilst the plaintiff was still employed with the employer, the business was transferred into her name only.  She believes this was done on the advice of their accountant; however, it has not resulted in any change to their finances, probably because the plaintiff has not been employed since this time and it has not resulted in any benefit to them.

104     The pizza wagon is basically her business and it operates on the weekends and during the spring and summer seasons.  Their daughters are currently in Prep and Grade 6 and there is no real prospect of operating the pizza wagon on a full-time basis whilst the kids are so young.  The plaintiff has helped her with the business as she has often requested help.  Even their eldest daughter, Shania, has helped over the school holidays.

105     It is not a difficult business to run, although there is a fair amount to be done and she struggles to do it by herself and needs help, especially with setting up.  In the past she had paid for help and this eats into whatever money is made.  When the plaintiff helps, he can do a fair bit of the setting up and preparation and she does not have to pay anyone and is grateful for his help.

106     The business is pretty basic.  They set up in good weather and sell wood-fired pizza on weekends, school holidays and in particular, summer holidays, where they can set up for the whole period.  The business grossed approximately $42,000 in the financial year ending 30 June 2018 and with the deduction of expenses, they were left with a taxable income of a little over $10,000.

107     For the present financial year, without the finalisation of all takings, the business has earned around $40,000 again and the taxable income at this stage is looking like it might be around $17,000.  The year is still not over; however, the good weather is nearly over and trading over May and June is minimal.

108     The family is doing it really hard.  The plaintiff made an exceptional income.  He worked hard and he has always had a strong work ethic and is a real family man.  He wants to work for the family.  He does not care what work he does and he thinks that if he can help the pizza wagon and she does not have to pay for assistance, then that is of benefit to the family.  It is, but it is not of benefit to the plaintiff because he is being accused of doing something wrong and he has not.

109     The plaintiff is in pain all the time and despite the fact that he looks like a big strong man, he is struggling a lot with what has happened to him.  His back is sore, his neck is sore and he asks her to give him rubs when he feels really stiff and in pain.  She sees him upset and trying to be strong for their girls.  She has had to cancel the girls’ dancing lessons and cancel their health insurance because they just cannot afford the payments, and this is because work has treated the plaintiff badly and accused him of doing something wrong.  The plaintiff was hurt at work doing what he was told.  She thought the biggest problem is he just does what he is told.

110     The plaintiff wants to work and he hates seeing the family struggling.  They also receive benefits from the government, given that the plaintiff is not working, and it is a really bad way to live when her husband has gone from earning more than $100,000 per year to nothing.  Trying to live on handouts and between $10,000 to $20,000 per year on the pizza wagon earnings is a poor life and their life has been turned upside down.  It has made things difficult between her and the plaintiff and they are really trying to hold it together for the girls.

111     The plaintiff is a hardworking and committed family man who wants to work.  His ability to read and write English is poor, his education is poor and he has been able to get his qualifications and his certificates on the job, working hard jobs and getting help from others.  He has helped her a lot with her pizza business and will continue to help with whatever she asks him.  She does the paperwork and the receipts and then passes them off to the accountant to do her taxation returns.  The business does not earn enough money for a BAS to be completed.

112     The plaintiff is in pain all the time.  He cannot rest properly and he puts on a brave face for the family but she has seen him break down.  She has seen her big tough husband cry, and this upsets her a lot.  He knows that he is able to work, but he cannot work doing what he is used to doing and he does not know what he can do.

113     The pizza business is their business.  It was something they bought two-and-a-half years ago as a side interest.  It is mainly her business and she is doing the best she can, and the plaintiff is not just going to sit around and watch her struggle with it when he knows he can help.  She would prefer him not to help her and be back in a job where he earned excellent money; however, that is not likely to happen, and his ability to operate heavy machinery has been affected.

114     Rodianne cannot work the business any more than she does currently as she has, and Shania has certainly helped as well over the past year or so.  Their youngest started prep this year and she needed to be home to make sure they are ready for school.

115     The plaintiff struggles to sit around and looks for things that he can do.  He is good with his hands and he can definitely work but even she does not know what he would be able to do on a full-time basis.

The Plaintiff’s medical evidence

Treaters

116     In his most recent report, Dr Sheriff summarised his treatment of the plaintiff from the time he first saw him in relation to the incident injury on 12 December 2014.

117     Dr Sheriff noted the plaintiff had had persistent symptoms when exposed to jarring duties, hence he had been unable to return to his original work.  He currently worked as a helping hand to his wife in making pizza. 

118     Dr Sheriff thought the plaintiff’s ability to return to normal unrestricted work was reduced, and given the length of the duration of his symptoms and his inability to graduate to normal duties, he had real doubt whether the plaintiff could completely recover for unrestricted work.

119     Taking all into consideration and having not visited the site and description of the machinery by the plaintiff, Dr Sheriff recommended the plaintiff operate a 980K sales loader, a 980 sales loader, 988, 992, 990 face loaders, an excavator, plant operator, grater operator, a fuel truck, a 605 dump truck and cleaning Cat walks.

120     Dr Sheriff thought the plaintiff was not able to use the following machines when exposed to more than two hours, and this aggravation interfered with his normal functions – six-wheel articulated dump truck, Caterpillar 777 dump truck, rock breaker, WA500 loader and a six-wheel water truck.

121     Dr Sheriff noted the plaintiff had tried very hard to return to unrestricted employment.  Having attempted, he is unable to graduate to normal unrestricted work.  Unfortunately, his employment was terminated and that had had a devastating effect on him as he tried to enter the job market in vain.  He gained weight due to his inability to exercise.

122     In real terms, Dr Sheriff thought the plaintiff’s injury was chronic, persistent, and the prognosis was poor.

123     Dr Sheriff also completed an AMP Doctor’s Initial Opinion and provided a number of other reports.

Physiotherapist, Mr Maiotti

124     The plaintiff commenced physiotherapy with Mr Maiotti from 27 May 2015.  In his report of August that year, Mr Maiotti thought that with appropriate care, the plaintiff will be fully functional and possibly in the future be able to perform his pre-injury duties and with the machines he was previously using,

Investigations

125     There was an MRI scan of the thoracic spine and cervical spine of 23 April 2015.

126     It was reported there was minimal disc bulge at T6-7 and T8-9 level, indenting the thoracic cord; however, no high-grade central canal or neural foramen stenosis was identified and there was no abnormal cord signal or myelomalacia.  There was mild to moderate spondylitic changes of the mid and lower cervical spine.  Alignment was preserved and no compression or crush fractures were identified.

127     There was a CT scan of the lumbar spine of 29 June 2017, following which it was reported there was a very small non-compressive disc protrusion at L5-S1.

128     There was an MRI scan of the cervical and thoracic spine carried out on 4 March 2019.  It was reported there was an L4-5/C6-7 degenerative spondylosis with right C6-7 paracentral caudally directed extrusion, resulting in mild central canal stenosis.  At T6-7/T8-9, there was degenerative spondylosis with small right T8‑9 paracentral cranially directed extrusion, resulting in mild central canal stenosis.

Functional capacity evaluation

129     Dr Ben Moore carried out a functional capacity evaluation on behalf of the employer, examining the plaintiff on 2 November 2017. At that stage, the plaintiff had not been at work since 26 October 2017, as he had been advised not to come to work.

130     Dr Moore recommended that the plaintiff is not suitable to continue in his role as a machine operator as stated in the job description provided by the employer.  He thought the plaintiff does not have the ability to meet the inherent requirements of the role.  He listed a number of machines the plaintiff was able to operate without aggravating his thoracic spine.  Further, he concluded the plaintiff was not suitable to continue in his current role due to his inability to meet the inherent requirements of the role during testing. 

131     Clinical findings included weak thoracic erector spinae muscles bilaterally, weak external oblique muscles bilaterally, hypertonicity in lumbar erector spinae bilaterally, palpatory pain on the spinous process of T5, left rib palpation pain at the level of theT5 vertebrae, restricted motion palpation of vertebral joints at T5 and T6, increased anterior pelvic tilt with associated hypertonic bilateral lumbar erector spinae, restricted motion of bilateral sacroiliac joints and chronic postural disturbances.

132     The plaintiff reported pain between the shoulder blades with prolonged sitting for more than two hours while operating certain machines.  He reported his pain when at its worse was 9 out of 10 and at best zero.  On average, it was 1 out of 10.

133     On interview, Dr Moore noted that the plaintiff, due to his illiteracy, required assistance for completion of all paperwork and outcome measures.

134     The plaintiff advised he had difficulty with long drives, relieved by a stretch break every hour, and fishing on a boat, he can only now go on calm days.

135     In addition to reporting pain when operating a number of machines, the plaintiff also reported he occasionally required days off work due to thoracic pain and had no sick leave remaining.

136     The plaintiff also stated he loves working here and that “it’s my life”.  Specifically, he loves driving the machines, likes people, likes his boss and likes that he does not have to read or write.  The aspect of the job that he dislikes is when he has to use a machine that hurts his back.

137     Dr Moore concluded the plaintiff was at very high risk of continuing aggravation and exacerbation of the thoracic spine with prolonged sitting for more than two hours at a number of machines.

138     Dr Moore concluded the plaintiff is unlikely to ever return to his normal duties, described in the employer job description based on a history of ongoing aggravation to his mid thoracic region while sitting and operating mobile machines, pain between the shoulder blades after more than two hours of sitting and operating the mobile machines, ongoing aggravations of the thoracic spine are highly likely with continued operation of the mobile machine, and the positive examination findings.

139     Dr Moore recommended the plaintiff is unsuitable to return to full duties; however, he had demonstrated the ability to operate certain machines without restricted hours.  Use of any other machines would require an ongoing restriction of a two-hour limit of use per day.  That situation was unlikely to change in the foreseeable future.  He recommended the plaintiff was unsuitable to return to full-time duties.  He had, however, a capacity to operate certain machines within restricted hours.

140     Dr Moore advised that the site manager, David Debrincat, reported there were over twenty different machines the plaintiff was required to operate.  The plaintiff had reported he was able to operate a number of machines without aggravation to his ongoing mid thoracic symptoms.  Dr Moore thought that use of machinery outside this list required a time limit of two hours a day as reported ongoing aggravations occur when use on these machines extends beyond two hours.

141     Dr Moore advised the following examples would be considered significant risk factors that may affect the plaintiff’s working capacity in the foreseeable future with the employer, namely, the clinical findings, the chronicity of the plaintiff’s mid thoracic symptoms, the lack of reported sustained improvement with past conservative care, reported multiple aggravations to the mid thoracic region since the original injury and while performing his duties, and the fact the plaintiff is illiterate, means he is unable to participate in any tasks that involve reading or writing.

Functional capacity evaluation

142     The employer wrote to the plaintiff on 1 December 2017 following a meeting that day, also attended by an AWU support person.

143     The purpose of the meeting was to discuss the plaintiff’s capacity for work and his attendance to a functional capacity valuation (“FCE”).  The plaintiff had been stood down on normal pay pending the outcome of that evaluation.

144     The plaintiff was advised that the FCE took into consideration his capacity on the assessment, his comments about his condition and all other available medical information, in recommending that he was unsuitable to continue in his role as a machine operator – quarry division.

145     The employer had been advised that the plaintiff’s condition was unlikely to improve to a point where he would be able to perform a machine operator – quarry division role. 

146     As the plaintiff was aware, the FCE report specifically advised that his operation of all but five of the twenty machines would place him at high risk of aggravation and exacerbation and/or injury should he operate them for longer than two hours a day.

147     Additionally, the assessor recommended the plaintiff was at a moderate risk of aggravation of his condition should he conduct crushing and screening plant operations.

148     It was noted that on 2 September 2017, Dr Sheriff completed the medical certificate, stating that he continued to treat the plaintiff for spinal injury and confirming he was unable to operate the following six-wheel articulated dump truck, Caterpillar 777 dump truck, rock breaker, WA500 loader and water trucks.

149     The plaintiff was advised, despite assistance and support provided by the employer, that he remained unfit to return to pre‑injury duties.

150     The plaintiff was advised that the employer was concerned he was not able to perform the inherent requirements of his role as a machine operator – quarry division, without causing risk to his health, safety and wellbeing.

151     The plaintiff was asked to provide his comments regarding his capacity to perform that role and any suggested alternative duties’ roles which he felt he may safely perform without aggravating his condition.  There would then be a further meeting on 15 December 2017.

152     By letter dated 20 December 2017, the employer advised the plaintiff that following this meeting, his employment was terminated, as he did not have the capacity to perform the inherent requirements of his pre‑injury role and function as a machine operator – quarry division.  He was advised the employer currently does not have any suitable alternative positions available and unfortunately, had no option but to terminate his employment.

The Plaintiff’s medico-legal evidence

153     On 22 March 2018, the Medical Panel determined the plaintiff had a 5 per cent whole person impairment resulting from the accepted upper back injury.

154     The plaintiff was examined by occupational physician, Dr Joseph Slesenger, on 5 December 2018. 

155     The plaintiff then complained of ongoing pain in the mid back, radiating into his flanks, and occasionally into his anterior chest.  He described the pain as being moderate to severe, aggravated by jolting movements but not aggravated by bending or twisting.  He also advised he could lift up to 10 kilograms.

156     The plaintiff was then taking Panadeine Forte up to three a day and Mobic once daily.

157     The plaintiff advised, when operating a dump truck, he aggravated his symptoms in mid 2017 and ceased work later that year and was subsequently dismissed from work.  He also advised, in 2017, he and his wife purchased a mobile pizza business and they had been operating that for over the last eighteen months.  Dr Slesenger saw the video surveillance of that activity.

158     Dr Slesenger diagnosed mechanical injury to the thoracic spine and chronic thoracic spinal pain caused by occupational exposures.

159     In particular, Dr Slesenger noted the FCE performed by Dr Moore, and Dr Moore’s conclusion that the plaintiff was not suitable to continue in his current role as a machine operator based on the worksite observation and FCE, as he did not have the capacity to meet the inherent demands of the role.

160     Dr Slesenger also noted Dr Moore advised the plaintiff had the capacity to work on a number of machines for up to two hours a day.

161     Dr Slesenger thought the plaintiff could not return to his role with the employer, as there appears to be a significant risk of aggravating his symptoms due to exposure to whole body vibration and thus, he would not be able to return to his pre‑injury duties.

162     Dr Slesenger was not able to advise as to whether the plaintiff had a capacity to operate specific machinery, as he had not inspected the machinery and he was not able to quantify the whole body vibratory forces that may be associated with the use of such machinery; however, he was minded that the risk of whole body vibration is not solely a feature of the machinery used but is also contributed to by the maintenance of machinery and the suspension within the seat and the terrain over which the machinery is manoeuvred.

163     Dr Slesenger was satisfied that the residual thoracic spinal symptoms would affect the plaintiff’s ability to return to work in the foreseeable future, although there were opportunities for treatment.

164     As a general principle, Dr Slesenger was opposed to the plaintiff returning to work performing duties that would expose him to whole body vibration and it appeared that the pre‑injury job demands would place him at significant risk of aggravated symptoms due to whole body vibration.  Further, he was unable to identify any research that would support the implied contention that working for less than two hours a day, using earthmoving equipment, would not be a risk factor for aggravation of the plaintiff’s symptoms.

165     Dr Slesenger supported the contention that the plaintiff should avoid heavy manual tasks, and he recommended the lift limit of 10 kilograms.  He supported Mr Pease’s recommendation that the plaintiff avoid pre‑injury duties and also supported the assumption the plaintiff’s opportunities for return to work were diminished by his literacy skills and lack of computer skills. 

166     Dr Slesenger recommended avoiding push, pull, carry or lift over 10 kilograms on an occasional or regular basis, exposure to whole body vibrations and avoiding fast repetitive bending and twisting.  He would advise against return to work operating mobile machinery over uneven ground, or heavy or fast repetitive manual handling.  He also noted the plaintiff was unsuited for work in a clerical or administrative role.

167     Dr Slesenger was generally optimistic with regards to the plaintiff’s prognosis and anticipated that with further support he is likely to see some improvement in his symptoms and residual functional limitations.  Nevertheless, he anticipated the plaintiff would be left with a residual impairment that would impact negatively, and he did not anticipate him returning to his pre‑injury role regardless of his response to future intervention.

168     Dr Slesenger further reported, having been provided with Mr D’Urso’s report, and was also being asked to comment on a number of suggested jobs.

169     Dr Slesenger advised a cautious approach to the plaintiff returning to work as a machine operator, light items.  He noted job demands required medium physical capacity with a lift limit of above 9 kilograms, and he recommended a job specific worksite assessment to address manual handling requirements and whether the plaintiff was required to drive a forklift possibly over uneven ground.

170     Dr Slesenger advised the plaintiff against returning to work as a sales assistant, earthmoving machinery, as he had no experience in that role and he anticipated the plaintiff’s lack of computer skills and literacy limitations would impact negatively on his capacity to perform this role.

171     Dr Slesenger advised against the plaintiff returning to work as a courier as he had no experience in that role.  In terms of a weighbridge operator, he advised against that work, anticipating the plaintiff’s lack of computer skills would impact negatively on his capacity to do that job.

172     Dr Slesenger advised the plaintiff against returning to work as a forklift driver as the job demands were likely to expose him to medium job demands, to travelling over uneven ground and whole body vibration and also would require him to perform manual tasks that may lay outside his capacity limits.

173     Dr Slesenger was generally optimistic the plaintiff could return to work as a spotter with the restrictions outlined above.  He had a similar view about a road traffic controller, although a job specific worksite assessment would be useful.

174     Dr Slesenger advised against the plaintiff returning to work as a truck driver, as the job demands were likely to expose him to medium job demands, to travelling over uneven ground with associated whole body vibration and would also require him to perform tasks that would lie outside his capacity, such as loading and unloading.

175     Dr Slesenger advised against machine operator quarry earthmoving equipment as the job and tasks were likely to expose the plaintiff to whole body vibration.

176     Dr Slesenger thought the plaintiff would have difficulty being a bus or shuttle driver and some of the tasks, such as assisting customers with their luggage.  He would also be at risk of driving over uneven ground, and a job specific worksite assessment was suggested.

177     Dr Slesenger advised against returning to work as a weighbridge operator quarry land fill, given the plaintiff’s lack of computer skills.  He advised the plaintiff against returning to work as a sales representative on the same basis.

178     Dr Slesenger advised the plaintiff against returning to work as a crane operator because of the manual handling, and exposure to whole body vibration were likely to aggravate his underlying symptoms.

179     Dr Slesenger was generally optimistic the plaintiff could return to work as a mobile food van driver, although a job specific worksite assessment was recommended.

180     Dr Slesenger had reservations with regard to the plaintiff entering work as a fast food cook manager.  Although he had been working in a similar role ad hoc, regular work under this title would require the plaintiff to receive incoming deliveries weighing greater than 10 kilograms and also to attend to regular manual handling while cleaning.

181     Dr Slesenger advised the plaintiff against the role of sales representative industrial products as he did not have experience within the role nor the communication skills to perform it.

182     Mr Paul D’Urso, neurosurgeon, examined the plaintiff in February 2019.

183     The plaintiff then reported he suffered from chronic interscapular and chest pain which he rated at 4 to 5 out of 10.  Pain radiated around his shoulders into his chest.

184     Mr D’Urso thought it appeared the plaintiff suffered from an aggravation to a degenerative condition of cervical and lumbar and thoracic spine.  He appeared to have multiple levels of disc prolapse.  It would appear that moderate shaking and protracted periods of operating a heavy machine had contributed to the development of this condition and aggravated it, resulting in the symptoms.

185     Mr D’Urso believed it would be likely that operating machines for periods of time would aggravate the underlying condition and suspected the plaintiff’s tolerance would be somewhat greater than two hours per day however.

186     Mr D’Urso thought it would appear that the plaintiff does not have the capacity to perform pre‑injury employment.  The prognosis was likely to be satisfactory and there will be a degree of degenerative progression with time which can be difficult to determine and predict.

187     Mr D’Urso recommended contemporary imaging as well as a bone scan to enable a therapeutic algorithm to be determined.  Surgery would be an option.

188     Mr D’Urso would be surprised, however, that even with appropriate management, the plaintiff would return to any type of pre‑injury employment in the foreseeable future.  He was likely to have a partial incapacity of a permanent nature which will prevent him from performing unrestricted physical and manual employment activity or with the prolonged operation of heavy machinery. 

189     Mr D’Urso provided a further report, having been given the March 2019 MRI scan of the plaintiff’s thoracic spine.  His diagnosis remained unchanged.  He considered the plaintiff had significant disc prolapses in his cervical and thoracic spine, particularly at C6-7 and, to a lesser extent, at T8-9.  Smaller prolapses were noted at C5-6 and at T6-7.  He thought the recent imaging appeared similar to that performed on 27 May 2015.

The Defendant’s medico-legal evidence

190     Mr Clive Jones, orthopaedic surgeon, examined the plaintiff in December 2015.  The plaintiff then reported substantial improvement and his back felt much better.  There was still some lower thoracic soreness of a mild degree but the plaintiff was able to make an eight-week visit to Malta recently without undue difficulty.

191     Mr Jones noted the plaintiff was dyslexic and unable to read, write or calculate.  He felt that his duties at the weighbridge were not appropriate due to his inability to do so.  About all the plaintiff could do then was answer the phone.  He felt he would be able to spend six hours on the loader at the present time.

192     On examination, there was currently no localised tenderness and the plaintiff was able to demonstrate a full range of flexion and extension of the spine.

193     Mr Jones noted the plaintiff appeared to have had a period of time off work recently due to mid thoracic spinal pain.  The constant jarring of the back associated with the use of a ladder in April this year was thought to be responsible.  Mr Jones noted why the plaintiff had been put on weighbridge duties instead of going to machine operation was not clear, as the plaintiff said he had no skills or experience in operating a weighbridge. 

194     At that stage, Mr Jones thought the plaintiff appeared to have recovered from a jarring or straining injury of the thoracic spine, with constant use of operating machinery said to be the underlying cause of the symptoms.

195     In Mr Jones’ view, there was very minor incapacity at present but it would be reasonable to suppose there was still a material contribution.

196     Mr Jones believed the plaintiff could return to full-time work within six weeks to two months and that no physical restrictions appear necessary.  In his view, the conservative management had now resulted in effective results regarding restoration of function and capacity.

197     Dr Malcolm Brown, occupational physician, first examined the plaintiff in March 2016.

198     On examination, there was an unrestricted range of movement of the thoracolumbar spine, and this was pain free.

199     Dr Brown thought the plaintiff had had an episode of thoracic level back pain which had resolved.  He then had a capacity to make a graduated return to pre‑injury duties and hours over three to four weeks.  He did not require any specific physical restrictions; he simply needed a straightforward graduated return to work plan.

200     Whilst the plaintiff had an episode of thoracic level back pain, there were no positive findings on physical examination, and he was able to undertake all activities of daily living without any difficulty whatsoever and his condition had now resolved and he did not require any further treatment.

201     Dr Brown thought the plaintiff had a capacity to make a graduated return to pre‑injury duties over a month and was unlikely to have difficulty with his usual work tasks over the longer term.

202     On re-examination in December 2018, there was tenderness to palpation directly over the spine at the scapular level.  There was an unrestricted range of movement throughout the spine, and muscle power and reflexes in the upper limbs were normal.  Dr Brown thought employment was still a cause.  He thought the plaintiff did not have a capacity for unrestricted pre‑injury duties but had a capacity for pre‑injury hours and modified or alternative duties.

203     In Dr Brown’s view, the vocational assessment report of July 2018 with jobs of machine operator, sales assistant, courier, weighbridge operator, electrical spotter and traffic controller were suitable on a full-time basis.  However, the plaintiff would likely have difficulty operating a forklift or any other machine on uneven ground.

204     Dr Brown thought the plaintiff had a current work capacity for suitable employment, and noted he was actively looking for work.  The barriers to a return to work consisted of the need to find new employment, taking into account the fact he was illiterate and needed work which did not involve operating machinery on uneven ground.  He thought it would be sensible for the plaintiff to avoid very heavy physically demanding work.

205     Dr Brown noted the plaintiff had continued to have recurrent thoracic level back pain consistent with radiological findings.  This continued to relate to his employment and there did not appear to be prospects for total resolution of his condition.  He thought the plaintiff does not have a capacity for pre‑injury or very heavy physically demanding tasks.  He, however, does have a capacity for appropriate employment full time, and that capacity is unlikely to change significantly in the future.

206     Having been provided with a supplementary vocational report of March 2019 listing job options of mobile food van driver, fast food cook-manager, sales representative and crane operator, Dr Brown advised individuals with back pain often have difficulty with jobs involving constant bending, so the plaintiff may have difficulty working as a fast food cook.  He had a capacity to undertake the other jobs on a full-time basis.

207     Mr Richard Pease, orthopaedic surgeon, examined the plaintiff in September 2018.

208     The plaintiff told Mr Pease of the injury, a return to work on the weighbridge and then being cleared to work on machines involving the sales loader, Cat 980K, with no problems and odd pain here and there.  In October or November 2017, he was instructed to work on the dump truck which made his back sore.  He was told to stay at home and two months later, he was sacked and they told him he was a liability.

209     On examination, the plaintiff complained of intermittent mid-thoracic pain, depending on how active he was.  Lying prone on the examination couch, there was quite mild mid-thoracic tenderness but no paraspinal tenderness or any reflex muscle spasm.

210     Mr Pease noted the plaintiff’s wife had a pizza trailer, but was otherwise not employed.

211     Mr Pease thought the plaintiff suffered a mid-thoracic injury.  It would be imprudent of him to be placed in any situation where he may be required to do any heavy manual work and in particular, to where he might be subjected to compression loading of the type which might be experienced driving a bulldozer, front-end loader or similar heavy plant.

212     Mr Pease noted the plaintiff did not complain of any significant effect on his life and daily activities.  He did say his symptoms could be aggravated by quite minor activities, like washing his car.

213     Mr Pease thought the plaintiff should never return to pre‑injury employment but he would otherwise be fit for a very wide range of suitable employment.  He noted the plaintiff’s employment prospects would almost certainly be diminished by the fact that he is illiterate and that if suitable light employment could be found for him, then he would be fit to return to work within a week.  He considered the plaintiff has a permanent incapacity for driving heavy plant such as bulldozers, excavators and front-end loaders and might be able to drive a truck with appropriate air ride or similar seating.  He would be fit for a wide range of light work, for instance on a production line or in a store.

214     The plaintiff was re-examined in January 2019 and Mr Pease was provided with surveillance film.

215     On examination, the plaintiff complained of mild mid-thoracic discomfort but no pain otherwise in his spinal canal.  Lying prone on the couch, there was mild subjective discomfort at approximately T6 but no muscle spasm or complaint of discomfort in any other area of the spine.  Straight leg raise was normal.

216     The plaintiff told Mr Pease he had not undertaken any work.  His wife had a mobile food business.  She made pizzas and sold them.  He went out with her two or three hours and then rested or went to bed for an hour.

217     Mr Pease thought the plaintiff had very minor symptoms which would not prevent him from undertaking a very wide range of suitable employment.  There was no evidence from his history or physical examination that he had suffered a significant injury, or that he was left with any disabling condition.  In view of the fact the plaintiff had virtually fully recovered, apart from very minor symptoms, Mr Pease thought his prognosis was excellent, as the symptoms appeared to be minimal and therefore not deserving of a specific treatment apart from perhaps very mild analgesia such as regular Panadol.

218     Mr Pease did not believe the plaintiff was left with a permanent impairment of significance.  Based on physical examination, he thought the plaintiff would be capable of a very wide range of suitable employment, although not any work which involved repetitive compression loading, for instance driving a foot roller bulldozer on a rough surface or similar activity.

219     Having read the July 2018 vocational assessment, Mr Pease thought it may not be prudent for the plaintiff to be required to undertake work as a machine operator in a quarry or earthmoving situation due to the risk of compressive loads.  He would certainly be capable of working as a bus driver or shuttle driver and work as a weighbridge operator could well be within his capability.

220     Mr Pease thought machine operator, light items sales assistant, courier, weighbridge operator and spotter would all be within the plaintiff’s capabilities.  Since there was a risk of repetitive compression loading or driving a forklift, this might not be appropriate.  The plaintiff would be able to work as a road traffic controller.

221     Having seen the surveillance video, Mr Pease thought it appeared the plaintiff was much more active in the business than he suggested on examination, and the surveillance suggested he was physically running the business rather than his wife.  The film confirmed his opinion the plaintiff was fit for full-time work, and had been so since at least mid 2017.

222     Having been provided with the 2019 vocational report, Mr Pease advised he thought the plaintiff would be capable of working full time immediately as a mobile food van driver, fast food cook-manager, sales representative (industrial) and crane operator.

Vocational evidence

223     There was a 130-week vocational report completed on 13 July 2018.

224     The consultant, Ms Olle, suggested the following suitable employment options: 

Machine operator  $1,322.00

Plumber-sales assistant, example earthmoving machinery             $936.00

Courier  $1,014.00

Weighbridge operator  $1,217.00

Forklift operator (retraining required)  $993.00

Electrical spotter (retraining required)  -

[NB:  No $ listed in vocational report for this role]

Traffic controller (retraining required)  $935.00

225     There was a Co Work vocational assessment and labour market analysis report of 26 March 2019.  The author, vocational counsellor Ms Raftopoulos, suggested four suitable jobs for the plaintiff:  mobile food van driver, with an average weekly salary of $1,080; fast food cook-manager pizza, average wage of $1,010 per week; sale representative - industrial products, $1,717 per week, and crane operator, average weekly earnings, $2,045.

Summary

226     There is no dispute that the plaintiff suffered an injury to his thoracic spine as a result of the heavy nature of his employment as a quarry worker with the employer during the said period.

227     The plaintiff’s claim was accepted and a payment made pursuant to s98.

228     The consensus of medical opinion is that as a result of his work duties, the plaintiff suffered an aggravation of a degenerative spinal condition, mainly at the thoracic level. 

229     As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[50]

“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”

[50](2010) 31 VR 1 at paragraph [12]

230     I found the plaintiff to be a truthful, unsophisticated witness and whilst in his affidavit he somewhat played down his involvement in the pizza business and it is clear from the surveillance film that he does more than assist his wife, this issue did not affect my view as to the plaintiff’s credibility generally.

231     As I indicated during the hearing, I totally accept the plaintiff as a very open, genuine and unsophisticated witness who was motivated at all times to continue working with the employer.[51]  If anything, he understated the seriousness of any current spinal impairment.  He frankly stated in cross-examination that on a day- to-day basis, his back did not give him significant problems, that he took painkilling medication on an infrequent basis. 

[51]T78

232     Further, there is no evidence that there has been some massive deterioration in the plaintiff’s spinal condition in recent times.  He says that if the job was there now, he would still be doing it.[52]

[52]T77

233     Obviously, this candid evidence raises issues as to the seriousness of any current pain and suffering consequences.  Following this discussion, counsel for the plaintiff conceded that the application, insofar as it related to pain and suffering, was not particularly strong.  In those circumstances, in accordance with the principles in Acir v Frosster Pty Ltd,[53] it was submitted the plaintiff should still succeed, as he has established the requisite 40 per cent loss and therefore leave for pain and suffering would follow.

[53][2009] VSC 454

234     In Acir, Forrest J held that if a worker satisfies the test laid down by the Act in relation to loss of earning capacity, then he or she is at large to make a claim for damages, for example both for pain and suffering and loss of earning capacity.[54]

[54]See Forrest J in Acir v Frosster Pty Ltd (ibid) at paragraph [147] and Advanced Wire & Cable Pty Ltd & Victorian WorkCover Authority v Abdulle [2009] VSCA 170

235     I accept the plaintiff is a highly motivated man who made strong attempts to resume work after initial injury in 2015.  By 2016, he was back to full-time work 12 hours a day at the quarry, and I accept his condition had largely resolved.

236     However, in late 2017, the plaintiff was required to operate a wider range of machinery, including a dump truck, and his thoracic problems increased and he ultimately had to cease work.

237     The plaintiff was then told, after a series of meetings and following an FCE, that unless he was fit to do a full range of machinery work, his employment would be terminated.  As Dr Sheriff was not prepared to certify the plaintiff fit in this regard, his employment was terminated in early January 2018.

238     The consensus of medical opinion is that the plaintiff has a capacity for full-time work, but not unrestricted heavy work.  He was certified in these terms by Dr Sheriff from 2018 and continuing.

239     At the outset, counsel for the plaintiff conceded that the plaintiff could undertake full-time work, as his general practitioner certified; however, the plaintiff is effectively illiterate and got a lucky break with the employer in being able to get that job.  It was submitted he would suffer the requisite loss as, having been a high earner, he could not do a full range of quarry work and the suggested jobs such as crane operator and machine operator are unsuitable.[55]

[55]T2

240     The medical evidence relied on by the defendant was that the plaintiff could do all but the heaviest of work.  Unless it was very heavy, the plaintiff was “pretty right” for full-time work.[56]

[56]T3

241     To obtain leave in relation to loss of earning capacity, the plaintiff must establish that –

(a)    at the date of the hearing, he has a loss of earning capacity of 40 per cent or more – s325(2)(e)(i); and also

(b)    after the date of hearing, the relevant loss of earning capacity will continue permanently – s325(2)(e)(ii).

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

(i)     “without injury” earnings; and

(ii)     “after injury” earnings. 

243     The former must be calculated by reference to the six-year period specified in s325(2)(f).

244     “Without injury” earnings consist of the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion had the injury not occurred.

245     It is to be calculated by reference to that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity.

246     The plaintiff carries the onus of proof in relation to economic loss and particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and (g) therein.[57]

[57]See Barwon Spinners Pty Ltd & Ors v Podolak (supra) at paragraph [70]

247     There is no dispute as to the “without injury” earnings figure in this case.  The figure was based on the plaintiff’s earnings in 2016-2017 of $107,025.  Sixty per cent thereof is $64,215 or $1,235 a week.[58]

[58]T84

The Defendant’s submissions

248     Counsel for the defendant submitted the plaintiff had, and continues to have, a capacity to operate all but a small number of machines.  On that basis, working as a quarry worker he would earn in excess of $1,235 per week.

249     It was submitted Dr Moore, who carried out the FCE, did not consider the plaintiff was unfit for all quarry duties.  Further, it was submitted the plaintiff had a capacity to work as a machine operator or crane operator, and in those circumstances, would not suffer the requisite loss.

250     Counsel for the defendant submitted that the material shows that the plaintiff recovered sufficiently to get back to full-time work on all but some of the machinery.[59]  In this regard, reliance was placed on Mr Jones’ examination in November 2015 and Dr Brown’s examination in March the following year.[60] Further, the plaintiff had reached a point by April 2016, working twelve hours a day on normal duties but avoiding some of the bad machines.[61]

[59]T79

[60]T19, T20, T79

[61]T80

251     It was submitted that the plaintiff had worked longer hours and earned more in the financial year of 2017 than the preceding year.  He ceased work ultimately because the employer advised it was not interested in employing him unless he could work on every machine.  He did not cease working because his back was unable to cope with the job anymore. Counsel for the defendant conceded that one could query the motives of the employer and the like, “but this is an analytical exercise about capacity rather than a moral judgement”.[62]

[62]T80

252     I indicated that I anticipated counsel for the plaintiff would submit that the plaintiff was lucky, with limited education and literacy, to have obtained such a great job where he earned in excess of $100,000 and, because of his injury, he cannot operate a full range of machines and therefore has no job.  In response, counsel for the defendant submitted that it is not whether a causal connection can be drawn between the plaintiff having the injury and losing the job – the question is whether he has the capacity to engage in suitable employment that would result in earnings sufficient to meet the test.[63]

[63]T81

253     When I noted the problems the plaintiff faced after losing this lucrative job and then being exposed on the open market with his literacy problems, counsel for the defendant submitted it comes down to assessing what the plaintiff’s capacity is to earn in suitable employment now.  It was not suggested the plaintiff could be a salesperson or something like that[64] –

“There is no reason to think this is a quarry for the illiterate and everyone else who works in a quarry is doing their Masters …  [It is] just an ordinary quarry.  …  It is not a real job … there are a lot of people working there, full-time on machines whose job [he] could do …  the motivation of the employer isn’t the central issue, the issue is the capacity.”[65]

[64]T81

[65]T82

254     The plaintiff had been coping well with his back and did not stop work because his back had been getting worse.  It was because of the employer’s decision to put him on the dump trucks.  The plaintiff would still be there now, and there is lots of work he could be doing.  These are real jobs by real people.[66]

[66]T82

255     It was submitted that in a sense that was enough reason for the plaintiff to fail and “counsel could sit down now”.  There was no need, on that analysis, to go through suitability for other jobs.[67] The plaintiff has a capacity to work in the quarry because he says he can.  He cannot get a job, and the legislative interpretation says that someone fails in those circumstances.[68]

[67]T83

[68]T83

The other jobs

256     It was submitted that this was not a case where the onus is on the defendant to identify particular employment as the Court held in Giankos v SPC Ardmona Operations Limited.[69]In the recent case of Weldemichael v ID Sales & RepairsPty Ltd,[70] the Court of Appeal, in April 2019, clarified that this onus only arises because of a primary case of incapacity first established.  It was submitted that this was not the case here, because the evidence is that the plaintiff is fit for a wide range of manual work.  He is fit for all but the heaviest of work, as Dr Sheriff certified.

[69][2011] VSCA 121

[70][2019] VSCA 68 - in particular paragraphs [78]-[79]; T84

257     Dr Sheriff accepted that the plaintiff could work on nine different machines.  He was not saying that the plaintiff was incapacitated.  Dr Brown thought the plaintiff was fit for most types of work.  Mr Pease considered the plaintiff had virtually recovered and he would be capable of a very wide range of employment.[71]

[71]T85

258     It was submitted that surveillance film showed somebody capable of bending, twisting and standing for long periods and who engaged pleasantly with people.[72]

[72]T86

259     In addition to the job at the quarry, working as a full-time machine operator, the plaintiff would not suffer the requisite loss.  Having seen him operate a pizza business, it was submitted that there was no proper basis for concluding he was incapable of working as a machine operator.  The plaintiff said he would try but had not.  He could not say he could not do that job.[73]

[73]T86

260     The weighbridge job was a difficulty for the defendant in terms of the plaintiff’s age. The outgoing was a real job.  It was conceded that was not as overwhelmingly powerful as the machine operator argument, but it was something relied on.[74]

[74]T87

261     If he can work as a crane operator, the plaintiff does not succeed.  The only issue anticipated in that regard was the capacity to obtain a high risk licence, but he has experience working in cranes.  He might need assistance to obtain a licence as he has before.[75] The plaintiff himself said he would be physically capable of working as a crane operator if he could get a job, and also working driving properly maintained equipment in a construction environment.[76]

[75]T88

[76]T89

262     It was submitted that Dr Slesenger’s examination was essentially normal.  He was not totally dismissive of all jobs, just that there should be a cautious approach.  He does not say there is no work that is not suitable.[77] Further, it was submitted that there were unexplained assertions in his report.  Even if he were accepted, the plaintiff would still lose on the machine operator role.  Dr Brown thought the plaintiff could do a range of jobs.[78]

[77]T90

[78]T91

263     If the plaintiff’s evidence is that there is work he could be doing at the quarry, that is sufficient.  If it is not, then the machine operator evidence is effectively uncontradicted and that is sufficient.  But in the alternative, reliance was placed on the crane operator and the weighbridge.[79]

[79]T92

264     If the argument in relation to the loss of earnings application was not successful, counsel for the defendant submitted any current impairment is clearly not “serious” in terms of pain and suffering.[80]

[80]T83

265     In response to an argument that the plaintiff is no longer fit for unrestricted work, counsel for the defendant submitted the evidence is that the plaintiff is fit for a huge range of employment.  Physically, he is able to do anything but the heaviest of work, and that is very different – not of itself to get a pain and suffering certificate.  It was also submitted this was not a case where the plaintiff says he gets an enormous amount of social interest and pleasure out of his job.[81] 

[81]T84

The Plaintiff’s submissions

266     Counsel for the plaintiff submitted that the plaintiff has suffered the requisite loss based largely on Dr Moore’s report and the fact that the plaintiff’s employment was terminated after he certified the plaintiff unfit for a range of duties.

267     Whilst the plaintiff had said he could do a range of duties, it was submitted on the basis of lack of literacy skills, he was not fit for suitable employment, as Dr Moore opined.

268     It was submitted the crane operator job was unsuitable for the plaintiff and the limited experience he had in that role in Malta could not be really taken into account. 

269     The principal submission by counsel for the plaintiff was around pecuniary loss and was fairly simple.  The plaintiff is, and was always and will always be, an illiterate man who was lucky enough to get the job in the quarry but otherwise can make pizzas.  It is wishful thinking to say “the world is now his oyster and there are all these other jobs he can do”.  While he says he can do a lot of work with the employer, one might think that entity is in the best position to know what is required when working in a quarry for two reasons.  One is that they run one.  The second is that they had a medical opinion from Dr Moore, who does the assessment and says that the plaintiff is not fit, and on the strength of that report, his employment is terminated.[82]

[82]T93

270     It was submitted that the plaintiff had gone to extraordinary lengths to get the this job, in particular, the assistance provided to him by his wife, who read instructions to him at various times.[83]

[83]T94

271     The employer decided the plaintiff could not meet the inherent requirements of the job.  He had one go at Altona and lasted half a day on the truck he was given.  The fact the plaintiff says he is fit to do a number of machines is not determinative of him being fit for quarry work.  The best evidence of that comes from Dr Moore.  It was submitted that his report gives the quarry role any notion of returning to quarry work “a knock on the head”.[84]

[84]T95

272     Reliance was placed on Richter v Driscoll,[85] where the Court held it is not just the physical capacity for the job that is relevant and the definition makes it clear experience, age, education, skills and work experience also have to be taken into account.[86]  It was submitted that it was not simply a matter of coming up with a list of jobs “then going through with a red pen.”  The plaintiff should be considered as a whole person.[87]

[85][2016] VSCA 142

[86]T95

[87]T99

273     Counsel for the plaintiff submitted it was a quantum leap from the licence-less crane driving in Malta without a union card to being a crane operator here with skyscrapers in the city.[88]  This was an “odd lot” scenario.  As the plaintiff told CoWork, he was good at making pizzas and driving machines.  Probably never a truer word has been said in a vocational assessment.[89]

[88]T95

[89]T96

274     Counsel was critical of the recent vocational assessor’s report.  It was submitted that the author had taken an extraordinarily optimistic view of the plaintiff’s work capacity when she noted while speaking to him she gained the impression that he has an entrepreneurial flair for business.[90]

[90]T96

275     Counsel for the plaintiff submitted this is a gateway provision[91]  This is not an assessment of damages.  It was submitted that, realistically, the plaintiff is a quarry worker, a job he told Dr Moore he loved and one that was his life.  He is a pizza cook.  He is still doing that to some extent.[92]

[91]See Yirga-Denbu v Victorian WorkCover Authority [2018] VSCA 35 of 23 February 2018

[92]T98

Conclusion

276     Taking into account all the evidence, I am satisfied the plaintiff is unable to earn in excess of $1,235.00 on a permanent basis and has therefore suffered the requisite loss.

277     Whilst he has been certified fit to drive a number of machines by his general practitioner and Dr Moore, as Dr Moore concluded, the plaintiff is not currently suitable to work in his pre-injury role as a machine operator and does not have the ability to meet the inherent requirements of that role and function.

278     On the basis of this FCE, accepting Dr Moore’s findings and also Dr Sheriff’s certification, the employer, a large entity, advised the plaintiff it had no viable alternatives and was unable to offer him a job and his employment was terminated.

279     Even Mr Pease, who thought the plaintiff would be capable of a very wide range of suitable employment, considered he would be unfit for any work which involved repetitive compression loading, for instance driving a foot roller bulldozer on a rough surface or similar activity.

280     Given the plaintiff’s difficulties in his attempt to work at Altona operating machinery, lasting less than a day, I believe he is somewhat optimistic in his view that he would be able to do his pre-injury job if it was offered.

281     I accept that as a result of his ongoing thoracic spinal issues, the plaintiff no longer has the capacity to work in the role of machine operator - quarry division with the employer or any other employer.

282     Consideration of the plaintiff’s capacity for suitable employment extends beyond physical capacity and also takes into account other matters encompassed in the statutory definition – Section 5.[93]

[93]Richter v Driscoll (supra) at paragraph [77]

283     Whilst there may have been some doubt cast on that approach by Cavanough J in Harris v DJD Earthmoving Pty Ltd,[94] in the recent case of Weldemichael v ID Sales & Repairs Pty Ltd,[95] the Court of Appeal was not critical of the approach taken by the trial judge, who took into account matters beyond physical capacity when making her determination.

[94][2016] VSCA 188 at paragraph [59] - the test is one of physical capacity not employability

[95]Supra

284     Clearly, in addition to his spinal restriction, the plaintiff’s opportunities for a return to work are significantly diminished by his limited work experience, his literacy skills and lack of computer skills, as Mr Pease and Dr Slesenger opined.

285     The only jobs suggested by the defendant in which the plaintiff would not suffer the requisite loss are weighbridge operator, machine operator and crane operator.

286     Given the plaintiff’s significant difficulties in performing the weighbridge role when on light duties – being limited to only “outgoing” – this role is clearly unsuitable for hm.

287     Whilst the plaintiff may have worked for a short period in Malta as a crane driver, in my view, this experience would not result in any such role in Australia being considered suitable employment. Importantly, the plaintiff did not require a licence to drive a crane in Malta and there are no details of the type of duties that role required. The plaintiff would however require a licence to operate a crane in Australia.  He would face significant difficulty with the testing process and may also have difficulty with the actual duties – requiring assistance from his wife by phone or actually using his own phone to obtain help to undertake the tasks involved.  Further, the plaintiff did not think he would be able to work on cranes at a height.

288     A machine operator role, whilst not requiring a licence, would also pose the same difficulties for the plaintiff who cannot read and write and, as his counsel submitted, is a man who has only made pizzas and worked in a quarry.  I do not accept his involvement in the pizza business indicates a capacity to work as a machine operator, earning in excess of $1,235 per week.

289     Whilst it is not suggested the plaintiff would not suffer the requisite loss working in his pizza business,[96] the level of physical activity in that role is not significant, or technical and is an activity the plaintiff has engaged in from a young age. Despite the optimism of the vocational assessor, it is not apparent that the plaintiff possess the entrepreneurial flair to take this low earning business any further than its present weekend operation.    

[96]T75

290     Despite conservative care, there has been a lack of reported sustained improvement in the plaintiff’s condition.  In those circumstances, I am satisfied the plaintiff’s spinal impairment is permanent.

291     I am also required to consider issues of retraining and rehabilitation pursuant to ss(g).

292     In light of my findings as to the plaintiff’s impairment and his incapacity for employment, I am satisfied there is no rehabilitation or retraining that would be appropriate to be undertaken by the plaintiff which would alter the situation that he has a permanent loss of earning capacity of 40 per cent or more.  As rehabilitation and retraining have nothing to offer the plaintiff in terms of his capacity for employment, the plaintiff has satisfied the requirements of s134AB(38)(g). 

293     Accordingly, I grant the plaintiff leave to bring proceedings for damages for loss of earning capacity.  Leave is therefore also granted to bring proceedings for pain and suffering damages.[97] 

[97]Acir v Frosster Pty Ltd (supra)

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