Farrugia v Victorian WorkCover Authority
[2025] VCC 99
•18 February 2025
| IN THE COUNTY COURT OF VICTORIA AT LATROBE VALLEY COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-24-01775
| JEFFREY FARRUGIA | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
---
JUDGE: | HER HONOUR JUDGE MYERS | |
WHERE HELD: | Latrobe Valley | |
DATE OF HEARING: | 29 and 30 January 2025 | |
DATE OF JUDGMENT: | 18 February 2025 | |
CASE MAY BE CITED AS: | Farrugia v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 99 | |
REASONS FOR JUDGMENT
---
Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the lumbar and cervical spine – pain and suffering – loss of earning capacity
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s335
Cases Cited:Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170; The Herald & Weekly Times Limited and Victorian WorkCover Authority v Jessop [2014] VSCA 292; Acir v Frosster Pty Ltd [2009] VSC 454; Giankos v SPC Ardmona Operations Ltd (2011) 34 VR 120; Richter v Driscoll (2016) 51 VR 95; Weldemichael v ID Sales & Repairs Pty Ltd [2019] VSCA 68
Judgment: Leave granted to seek loss of earning capacity and pain and suffering damages.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J B Richards KC with Mr B Johnson | Arnold Thomas & Becker |
| For the Defendant | Mr A Saunders with Ms C Kusiak | MinterEllison |
HER HONOUR:
Introduction
1Mr Jeffrey Farrugia, the plaintiff, is a sixty-one-year-old former boilermaker. He claims that on 17 December 2021, he suffered an injury to his cervical and lumbar spine, and a consequential psychological injury, in an incident at Yallourn Power Station (“the incident’) where he was employed by Ventia Utility Services Pty Ltd (“the employer”).
2Mr Farrugia applies for leave to bring a common law proceeding seeking pain and suffering and loss of earning capacity damages pursuant to the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (“the Act”). His claim is that he has a “serious injury” of his spine, and/or a “severe” mental or behavioural disturbance or disorder.
3The Victorian WorkCover Authority (“the VWA”), the defendant, conceded that Mr Farrugia suffered a compensable injury to his spine on 17 December 2021. Although the VWA did not concede that the permanent impairment consequences of Mr Farrugia’s compensable spinal injury satisfied the statutory threshold for leave to claim pain and suffering damages, the primary area of contention was the claim for leave to seek loss of earning capacity damages. The VWA also disputed that Mr Farrugia’s consequential psychological condition satisfied the statutory thresholds for pain and suffering and loss of earning capacity.
4The relevant legal principles are well known and were not in dispute.
5To succeed in his application to claim loss of earning capacity damages, Mr Farrugia must establish that he is permanently unable to earn at least 60 per cent of his “without injury” earnings in suitable employment by reason of his compensable spinal injury and/or his consequential psychological condition. He must also establish that the loss of earning capacity consequence of the spine injury is “serious” and/or that the loss of earning capacity consequence of the consequential psychological condition is “severe”.
6To succeed in his application to claim pain and suffering damages, Mr Farrugia must establish that the permanent impairment consequences of his compensable spine injury are “more than significant or marked” and “at least very considerable”, and/or that the permanent impairment consequences of his consequential psychological condition are “severe”.
7The issues for determination are:
(a) What are the permanent impairment consequences of Mr Farrugia’s spinal injury?
(b) Is Mr Farrugia permanently unable to earn at least 60 per cent of his “without injury” earnings in suitable employment because of the permanent impairment consequences of his compensable spinal injury?
(c) Is the loss of earning capacity consequence of Mr Farrugia’s compensable spinal injury “serious”?
(d) Are the permanent impairment consequences of the compensable spinal injury “serious”?
(e) What permanent impairment consequences are due to psychological injury consequent upon the compensable spinal injury?
(f) Is Mr Farrugia permanently unable to earn at least 60 per cent of his “without injury” earnings in suitable employment because of the permanent impairment consequences of his compensable psychological injury?
(g) Is the loss of earning capacity consequence of Mr Farrugia’s compensable psychological injury “severe”?
(h) Are the permanent impairment consequences of the compensable psychological injury “severe”?
8For the reasons that follow, Mr Farrugia is granted leave to seek loss of earning capacity damages for his compensable spinal injury. Such leave also entitles him to seek pain and suffering damages.[1]
[1] Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
Background
9The following, I believe, are uncontroversial matters. As far as any were contested, these represent my findings unless otherwise stated.
10Mr Farrugia left high school in Year 10 and then completed an apprenticeship as a boilermaker. He has worked as a boilermaker for most of his working life.
11On 4 December 2021, Mr Farrugia was working on a shutdown and maintenance project for the employer at Yallourn W Power Station.[2] As he climbed a stairway in poor lighting, he struck his head very hard on scaffolding and planks that had been laid across the stairway at head height. Mr Farrugia felt immediate neck pain and dizziness and developed two black eyes. Within two days of the incident, Mr Farrugia developed lumbar pain.
[2] Plaintiff’s Further Amended Court Book (“PCB”) 25
12Mr Farrugia submitted a worker’s compensation claim, which was accepted.
13Mr Farrugia continued attending work until the project came to an end on 17 December 2021, about two weeks after the incident. He was unable to perform most of his work duties during that time, and his co-worker performed the heavy and awkward parts of the job.
14Mr Farrugia has not worked in any capacity since 17 December 2021.
15Mr Farrugia’s spinal injury has been treated conservatively. He has had physiotherapy and hydrotherapy. Although he was prescribed analgesia initially, he found the side effects unacceptable, and his general practitioner (“GP”) was reluctant to prescribe stronger medication due to Mr Farrugia’s other health issues. He currently takes Panadol Osteo on an “as needs” basis, on average a couple of times a week.
16He lives with a boarder/partner in Westbury, Gippsland.
What are the permanent impairment consequences of Mr Farrugia’s spinal injury?
17Mr Farrugia tendered four affidavits sworn by him in support of his application, sworn 25 October 2023, 16 September 2024, 8 October 2024 and 18 December 2024. He was also cross-examined.
18Mr Farrugia claimed that he suffers from the following ongoing impairment consequences by reason of his spinal injury:
(a) constant neck pain and stiffness. Pain radiates down his left arm. He experiences numbness in both hands;
(b) constant aching in his lower back. Pain sometimes radiates down his left leg;
(c) pain is aggravated by sitting for more than 30 minutes, standing for more than 15 minutes, and walking for more than 10 to 15 minutes;
(d) he struggles to lift, twist, push, pull and carry, as such activities increase his lower back pain;
(e) he is unable to drive more than 10 to 15 minutes without experiencing pain;
(f) he has difficulties concentrating and is forgetful;
(g) household chores aggravate his pain;
(h) he struggles to perform outdoor chores;
(i) he performs his activities of daily living more slowly, and in a modified way due to pain;
(j) he avoids social activities because of pain and his poor mental health;
(k) his previous hobbies of fishing, motorbike riding and mechanical work have been significantly reduced due to pain;
(l) he is unable to continue his previously enjoyed hobby of gold prospecting;
(m) his sleep is regularly disturbed by pain.
19This is a convenient point to consider the tendered medical evidence.
Imaging
20Mr Farrugia tendered a report of an MRI scan of his cervical and lumbar spine performed on 14 January 2022. This was reported to reveal the following:
“The cervical spine demonstrates loss of the normal alignment with straightening of the normal alignment.
C4/5, C5/6 and C6/7 disc bulges lead to mild central canal narrowing mildly flattening the anterior spinal cord and there is severe multilevel bilateral neural foraminal narrowing at multiple exiting nerve roots contacting disc.
…
Degenerative disc disease particularly in the lumbar spine worse at the L5/S1 level where there is moderate right and mild left neural foraminal canal narrowing of both exiting L5 nerve roots contacting disc.
Moderate bilateral facet joint arthropathy.”[3]
[3]PCB 45-46
Treating practitioners
Dr Fahima Saadzadah, GP
21Mr Farrugia tendered three reports from Dr Saadzadah, dated 15 December 2022, 11 May 2023 and 9 August 2024.
22Dr Saadzadah’s first report attached an Attending Doctor’s Statement completed by her on 29 November 2022 for the purpose of a total and permanent disablement claim made by Mr Farrugia. In that statement, Dr Saadzadah noted Mr Farrugia’s cervical and lumbar symptoms. She opined that Mr Farrugia had a capacity for “Non physical work – Professional advice from occupational therapist appreciated.”[4]
[4]PCB 58
23In her second report, dated 11 May 2023, Dr Saadzadah opined that Mr Farrugia’s injuries had affected his ability to perform his pre-injury duties. She opined “I think [Mr Farrugia] could try his ability to perform another occupation within the scope of his knowledge and skills”.[5]
[5]PCB 73
24In her third report, dated 9 August 2024, Dr Saadzadah noted that Mr Farrugia’s condition was stable, unchanged and likely to be permanent.
Dr Sam Harkin, sports and exercise physician
25Mr Farrugia tendered a report from Dr Harkin dated 22 February 2022.
26On examination that day, Dr Harkin found:
“[Mr Farrugia] has full cervical range, with C6 radiculopathy (pain and paraesthesia) provoked on cervical flexion/rotation testing. He has preserved upper limb reflexes and power as well as normal tone. His shoulder and elbow examination are unremarkable. His straight leg raise and lumbar slump testing is normal, and non-pain provoking. Lumbar quadrant testing reproduces his central low back pain.”[6]
[6]PCB 47
27Dr Harkin diagnosed left C5-6 radiculopathy, and mechanical low back pain secondary to facet arthropathy and an L5-S1 degenerative disc bulge.
28Dr Harkin opined that Mr Farrugia had a capacity for modified duties. His impression was that Mr Farrugia would be safe to return to work once his pain, paraesthesia and fatigue had settled with appropriate management. He suggested a CT-guided transforaminal corticosteroid epidural to the left C5-6 nerve root sleeve may be appropriate.
Dr Hazem Akil, neurosurgeon
29Mr Farrugia tendered a report from Dr Akil dated 4 October 2022. Dr Akil examined Mr Farrugia that day.
30Dr Akil noted the following on examination:
“I noted that he has a good range of motion of his cervical spine in all directions.
I did not detect any clear sensory or motor deficit in both upper limbs nor I detected (sic) any neural deficit in both lower limbs.
I noted however that the forward flexion of his lumbar spine is within the normal range but the extension beyond 5° resulted in a worsening of the left-sided lower back pain.”[7]
[7]PCB 63
31Dr Akil opined that the MRI scan of Mr Farrugia’s cervical and lumbar spine revealed multi-level degenerative changes, multi-level foraminal stenosis and severe bilateral facet joint arthropathy, particularly at L5-S1.
32Given that Mr Farrugia reported having good and bad days, Dr Akil recommended that he persevere with physiotherapy. If that did not work, he would review him again. He referred Mr Farrugia to Dr Ali Mehr, rehabilitation physician.
33As to work capacity, Dr Akil opined:
“… given his current symptoms and the injuries as well as his age, he should not return to the same duties at work for the time being.”[8]
[8]PCB 63
Dr Ali Kian Mehr, rehabilitation physician
34Mr Farrugia tendered two reports from Dr Mehr, dated 8 November 2022 and 20 January 2023. Dr Mehr examined Mr Farrugia on each of those dates.
35In his first report, Dr Mehr noted Mr Farrugia had a slightly restricted range of motion in his cervical and lumbar spine. There were no neurological deficits in the upper or lower limbs. Extension of the lumbar spine was around 5 degrees. Dr Mehr noted imaging revealed multi-level degenerative changes in the cervical and lumbar spine. He ordered a SPECT/CT scan of the spine to rule out facet joint issues and sought approval to undertake a nerve conduction study of the upper limbs.
36In his second report, Dr Mehr noted the SPECT/CT revealed the following:
“In the cervical spine, the main cause of the pain was moderately severe arthritis in the left C4/5 level which matches with his complaint and also there was mild to moderate active disc degeneration and uncovertebral joint degeneration at the C6/7 level.
In the lumbar spine, there was severe active facet arthritis on the left at L3/4 as well as bilaterally at L4/5 with no other cause for lumbar pain and this explains again his symptoms. There is also low grade active degeneration at SI joint and history of fractured left anterior 6th rib.”[9]
[9]PCB 50
37Dr Mehr offered a medial branch block and radiofrequency neurotomy but noted that Mr Farrugia “prefers to avoid procedural approach for the time being”.[10]
[10]PCB 50
38Dr Mehr noted the nerve conduction study showed bilateral medial neuropathy at the wrist level consistent with bilateral moderate carpal tunnel syndrome. EMG “demonstrated chronic neurogenic motor unit action potentials in bilateral C7 myotomes more significant on the left side” which Dr Mehr opined was consistent with bilateral chronic C7 nerve root irritation.[11]
[11]PCB 50
39Dr Mehr recommended continuing hydrotherapy and a gym program to consolidate what had been learned by Mr Farrugia in physiotherapy.
Mr Kago Mantata, physiotherapist
40Mr Farrugia tendered a report from Mr Mantata dated 14 May 2024. The VWA tendered a Certificate of Capacity completed by Mr Mantata on 18 June 2024.
41Mr Mantata noted that Mr Farrugia had been attending for physiotherapy since March 2022. He opined that Mr Farrugia:
“… would not be able to cope with manual work that involves repetitive bending, prolonged standing, prolonged sitting, repetitive reaching, kneeling, long periods of walking, heavy lifting and repetitive twisting as this could aggravate his conditions leaving more loss of function.”[12]
[12]PCB 81
42Mr Mantata opined that Mr Farrugia’s condition was not likely to improve significantly “without further intervention from [an] orthopaedic specialist”.[13]
[13]PCB 81
43The Certificate of Capacity noted Mr Farrugia was fit for suitable employment from 18 June 2024 with the following restrictions:
“Sit as tolerated.
Stand as tolerated 10 mins before pain.
Avoid repetitive bending and squatting.
Avoid kneeling and twisting.
No lifting from ground to waist. Avoid repetitive lifting. Carry up to 5kg at waist height and lift maximum 5kg above shoulder height.Driving: start to feel increase in Lower back pain after about 10 mins in the car, often do multiple stops for long distance driving.”[14]
[14]Defendant’s Amended Court Book (“DCB”) 95
Medico-legal reports
Dr Ralph Poppenbeek, occupational physician
44Mr Farrugia tendered a report of Dr Poppenbeek dated 15 July 2022. Dr Poppenbeek examined Mr Farrugia on 13 July 2022 at the request of the VWA.
45On examination of the cervical spine, Dr Poppenbeek noted triggerpoint tenderness in the upper left trapezius region, and stiff lateral flexion to about 75 per cent of range bilaterally. There was stiffness in extension. In the thoracolumbar spine, extension was to about two thirds of the normal range and performed stiffly. Lateral flexion was about half the normal range performed stiffly. Straight leg raising was to about 75 degrees on each side, which Dr Poppenbeek described as “satisfactory”. There was no objective evidence of neurological deficit.
46Dr Poppenbeek opined that Mr Farrugia presented with cervical and lumbar spine disc and facet joint degenerative changes. Those changes were most marked in the cervical spine with possible nerve root compression.
47Dr Poppenbeek noted that Mr Farrugia had not improved in the seven months since the incident. He opined Mr Farrugia was unfit for his pre-injury duties and did not have a work capacity. He was of the view that if Mr Farrugia’s physical condition improved, he might ultimately resume pre-injury hours but had reservations about his ability to resume pre-injury duties in the future. Dr Poppenbeek opined the current treatment was not appropriate and suggested a referral to a sports physician and a multidisciplinary rehabilitation program.
Mr Stephen Doig, orthopaedic surgeon
48Mr Farrugia tendered a report from Mr Doig dated 16 May 2024. He examined Mr Farrugia that day.
49On examination, Mr Doig noted:
“Examination today of the cervical spine reveals that he has flexion to 50, extension to 45, lateral flexion on the right to 30 and left to 20, and rotation on the right to 30 and left to 15. He has 0.5cm of left lower arm wasting when compared to the right. His deep tendon reflexes are clinically normal and his power is clinically normal.
Examination of the thoracolumbar spine reveals that he has flexion to 75, extension to 20, lateral flexion on the right to 20 and the left to 25, and rotation on the right to 30 and left to 30. There were no focal neurological signs in the lower limbs although his deep tendon reflexes were difficult to obtain.”[15]
[15]PCB 104
50Mr Doig diagnosed an exacerbation of pre-existing minimally symptomatic lumbar spondylosis, and an exacerbation of pre-existing asymptomatic cervical spondylosis.
51Mr Doig opined that Mr Farrugia was unfit for unrestricted work as a boilermaker. As to other work, he opined:
“As far as realistic returning to work at this stage, I consider it is unlikely that he is going to return to work. He continues to complain of ongoing pain in the cervical and lumbar spine and that is not surprising. He has always worked as a boilermaker with the exception of the 4 years when he worked as a dump truck driver and has no other training. As a consequence of that I consider it is very unlikely that there is any sort of work that he is suited for that he is going to be able to perform secondary to the injuries to the cervical and lumbar spine.”[16]
[16]PCB 105
52Mr Doig noted that Mr Farrugia was unwilling to undergo the suggested injections, and opined that there was nothing further that could be done in terms of treatment. Mr Farrugia’s prognosis was therefore “very guarded and it is likely he is going to continue to have ongoing problems no matter what”.[17]
[17]PCB 105
Dr Kilner Brasier, occupational physician
53Mr Farrugia tendered a report from Dr Brasier dated 26 August 2024, together with an email dated 30 January 2025 clarifying Dr Brasier’s response to one question. Dr Brasier examined Mr Farrugia on 16 August 2024.
54Dr Brasier noted that Mr Farrugia completed an apprenticeship as a boilermaker and held “tickets” for structural steel/fabrication, forklift, crane, EWP, rigger and confined spaces. Mr Farrugia reported very basic reading and writing skills, basic numerical skills and few computer skills.
55Mr Farrugia complained of constant neck pain, predominantly on the left side, at “between 5 and 10 out of 10”.[18] He complained of a restricted range of movement in his neck, with extension being the most difficult. He complained of numbness in his hands. Mr Farrugia reported that he had constant lumbar pain “between 5 and 10 out of 10 in severity”.[19] He complained of a burning pain in his left thigh and pain in his left fourth toe, together with restricted movement, particularly bending, squatting or kneeling. Mr Farrugia reported poor memory, difficulty concentrating and poor sleep.
[18]PCB 109
[19]PCB 110
56On examination, Dr Brasier found that movement was globally mildly restricted in the lumbar spine. Cervical spine movement was globally restricted, with lateral and extension movement “practically nil”.[20]
[20]PCB 111
57Dr Brasier opined that Mr Farrugia suffered an aggravation of cervical and lumbar spondylosis “that has persisted and become chronically debilitating”.[21]
[21]PCB 112
58Dr Brasier was of the view that Mr Farrugia was unfit for his pre-injury duties. He further opined:
“I would apply the following restrictions to any activity he may choose to undertake:
- avoid working above shoulder height;
- avoid repetitive neck movement;
- avoid static body positions;
- avoid repetitive bending, twisting or stooping;
- avoid squatting, kneeling or crouching;
- avoid working at heights;
- avoid working in confined spaces;
- avoid prolonged standing or sitting; avoid prolonged walking;
- avoid driving a motor vehicle for periods longer than one hour;
- avoid running or jogging;
- avoid ladders.”[22]
[22] PCB 112
59Dr Brasier was asked, and answered, the following questions:
“(e) Your opinion as to whether our client is fit for unrestricted work:
In my opinion Mr Farrugia has no work capacity or fitness for unrestricted work.
(f) If our client is not fit for unrestricted work, your opinion regarding how many hours per week (if any) our client can realistically and reasonably and reliably work in suitable work – noting the pain and restrictions he is experiencing;
After considering his cervical and lumbar spine injury/conditions, age, place of residence, skills, knowledge and experience in my opinion Mr Farrugia has no realistic capacity for unrestricted work.”[23]
(emphasis in original)
[23]PCB 113
60During the hearing, Mr Farrugia’s solicitors contacted Dr Brasier’s rooms by email to clarify Dr Brasier’s response to question (f) above. Dr Brasier was asked to confirm that in paragraph (f) of his report he meant “suitable employment” not “pre-injury employment”. Dr Brasier responded in an email a short time later, stating, “Yes the response in paragraph (f) refers to Suitable Work”.[24]
[24]Exhibit P2
Dr Majid Rahgozar, occupational physician
61The VWA tendered two reports from Dr Rahgozar, dated 1 February 2024 and 5 August 2024. Dr Rahgozar examined Mr Farrugia on 31 January 2024.
62In his first report, Dr Rahgozar noted that Mr Farrugia reported suffering from constant pain in his lower back and neck, with some radiation into his upper limbs. His lower back pain radiated into his left leg. Mr Farrugia reported a deterioration in pain with prolonged standing, sitting, bending, twisting, kneeling and squatting. He attended for physiotherapy three times a week which included gym exercises, hydrotherapy, and occasional “hands-on” treatment.
63On examination, Dr Rahgozar noted Mr Farrugia walked slowly but without abnormal gait. He was able to sit during the thirty-minute consultation. Mr Farrugia was able to unilaterally weightbear on right and left, stand on tiptoes and on his heels but was unable to fully squat due to pain in his lower back and knees. Range of motion of the cervical spine was mildly reduced in lateral flexion and rotation. Range of motion in the lumbar spine was restricted in all planes. Dr Rahgozar noted generalised weakness in the upper and lower limbs without myotomal or peripheral nerve pattern. There were sensory abnormalities in the left upper limb and left lower limb without dermatomal or peripheral nerve pattern. Straight leg raising test was negative.
64Dr Rahgozar opined that Mr Farrugia had multi-level degenerative changes in his cervical and lumbosacral spine. He said the findings on MRI were not consistent with acute injury. Dr Rahgozar opined:
“… considering the mechanism of injury he could have experienced a musculoligamentous injury and/or aggravation of these degenerative changes of the cervical and lumbosacral spine.”[25]
[25]DCB 22
65Dr Rahgozar said Mr Farrugia was not likely to benefit from invasive procedures, surgeries, nerve blocks, facet joint injections and the like. He would benefit from gym or pool exercises and simple analgesia as needed. He opined: “As such his current management is not inappropriate.”
66As to work capacity, Dr Rahgozar opined:
“In my opinion he is not fit for pre-injury work and this lack of capacity is long-term. However commenting on his physical and musculoskeletal health in my opinion he has capacity for work subject to avoidance of frequent lifting, pulling and pushing more than 5 to 10 kg when the load is close to the body and no more than 5 kg when the load is away from the body at or above shoulder level. He should refrain from activities that can cause whole-body vibration such as operating cars or machineries on uneven surfaces or static postures such as prolonged sitting or static standing.”[26]
[26]DCB 23
67Dr Rahgozar was asked whether the claimed injury still materially contributed to Mr Farrugia’s condition and incapacity. Dr Rahgozar said:
“A degree of ongoing mechanical dysfunction of the cervical spine and lumbosacral spine could not be ruled out. Nonetheless given the fact that he has not been working for over two years, does not take regular analgesics and does not report significant disability for activities of daily life and leisure in my opinion his injuries have now resolved and he has returned to his preinjury state of spondylosis of cervical and lumbosacral spine.”[27]
[27]DCB 24
68Dr Rahgozar was asked to provide a supplementary report commenting upon the suitability of various roles, including relevantly welding inspector, TAFE teacher and non-destructive testing technician. Dr Rahgozar stated that each of the roles had light physical demands, with no requirement for frequent bending, twisting, lifting, and carrying heavy loads or activities that could cause whole body vibration. He was of the view that, unless Mr Farrugia’s condition had deteriorated since he was last examined, “from a physical and musculoskeletal health view point [Mr Farrugia] has capacity for all these roles on a full time basis”.[28]
[28]DCB 27
Findings
69Leading Counsel for the VWA did not challenge Mr Farrugia’s credibility or reliability.
70I found Mr Farrugia a straightforward witness. He made several concessions against interest. I generally accept that he suffers from the impairment consequences which he described.
71I find that Mr Farrugia suffered an aggravation of pre-existing cervical and lumbar spondylosis in the incident.
72I find that Mr Farrugia experiences constant pain in his neck and lower back and symptoms of numbness and pain in his arms and left leg. The pain varies in intensity and is at times severe. I accept that there are often days when he wakes up in significant pain in his neck and lower back. The pain is generally aggravated by activity.
73I find that Mr Farrugia declined to undergo medial branch blocks and a radiofrequency neurotomy. I accept Mr Farrugia’s explanation that he did so because he was concerned that such treatments would mask what was going on with his spine, and he was fearful of the proposed treatments. It follows that I reject the VWA’s submission that the reason was that Mr Farrugia’s pain was not troubling him sufficiently to proceed.
74The VWA did not dispute the issue of permanence. I am satisfied that Mr Farrugia’s spinal impairment consequences are permanent in the requisite sense.
Is Mr Farrugia permanently unable to earn at least 60 per cent of his “without injury” earnings in suitable employment because of the permanent impairment consequences of his compensable spinal injury?
75For Mr Farrugia to succeed in his claim for the loss of earning capacity consequence, he must establish:
(a) his loss of earning capacity consequence is, when judged by comparison with other cases in the range of possible impairments or losses of a body function, “fairly described as being more than significant or marked, and as being at least very considerable” (the narrative test);
(b) he has a loss of earning capacity of 40 per cent or more measured as set out in s325(2)(f) of the Act; and
(c) after the date of the hearing, he will continue permanently to have a loss of earning capacity productive of a financial loss of 40 per cent or more.
“Without injury” earnings
76The parties disputed the “without injury” earnings figure.
77Mr Farrugia contended it was $5,038 per week gross, or at least $3,000 per week gross. The relevant 60 per cent figure in each instance is $3,022, and $1,800.
78The VWA contended for $79,248 per annum, $1,524 per week gross, being Mr Farrugia’s gross earnings in the 2017/2018 tax year. The relevant 60 per cent figure is $914.
79To determine the plaintiff’s “without injury” earnings, I am required to decide which of the following four scenarios most fairly reflects the plaintiff’s earning capacity if the injury had not occurred:
(a) the gross income that the plaintiff was earning during the period of three years before the injury;
(b) the gross income that the plaintiff was capable of earning from personal exertion in the three years before the injury;
(c) the gross income the plaintiff would have earned in the three years after the injury, if the injury did not occur;
(d) the gross income the plaintiff would have been capable of earning from personal exertion in the three years after the injury if the injury did not occur.
80I approach the assessment of the plaintiff’s “without injury” earning capacity on the basis that it represents a capital asset which, when exercised, produced income from personal exertion, as discussed in The Herald & Weekly Times Limited and Victorian WorkCover Authority v Jessop:[29]
“… It follows that a worker’s ability to earn income through personal exertion depends on the nature and quality of the worker’s capital asset and his or her capacity and willingness to use it to earn income. Thus, the worker’s physical and mental capacities to work are relevant, as are the type of work the worker is able to perform, the remuneration for the work and the hours that the worker is willing to work.
The facts of each case and the manner in which the worker presents his or her case will influence which factors are relevant to the application of s 134AB(38)(f)(ii) of the Act and the relative importance of those factors. The availability of work at the worker’s pre-injury place of employment will not necessarily be relevant to an assessment of a worker’s earning capacity for the purposes of s 134AB(38)(f)(ii). It may, however, have probative value in some cases. For example, it may inform an assessment of a worker’s willingness to work where, over many years, work has been plentiful but the worker has always refused to accept offers to work beyond a certain number of hours per week. Availability of overtime work at the worker’s pre-injury place of employment may also be relevant where the worker seeks to include a particular level of overtime in his or her calculations of without injury earning capacity.”
(emphasis added)
[29][2014] VSCA 292 at paragraphs [53] and [54]
81As J Forrest J summarised in Acir v Frosster Pty Ltd:[30]
“The essence … of the inquiry is to fix a figure which ‘most fairly’ reflects the earning capacity of the injured worker, absent the subject injury.”
[30][2009] VSC 454 at paragraph [167]
82The pattern of Mr Farrugia’s earnings in the three years preceding his injury was that he worked on discrete shutdown and maintenance project contracts and covered permanent workers who were on leave. Those contracts were not available all the time. Generally, Mr Farrugia accepted a contract if it was offered to him. When working on a contract, the hours were very long, and Mr Farrugia would generally be required to work thirteen days per fortnight. Mr Farrugia deposed, and I accept, that he intended to keep working in that manner until at least 2028. He told Dr Rahgozar, and I accept, that he generally worked for about six months of the year.[31]
[31]DCB 20
83Mr Farrugia’s actual gross earnings from personal exertion in the three taxation years prior to injury were: [32]
· Year ending 30 June 2019 - $71,538
· Year ending 30 June 2020 - $63,766 (excluding a Co-Invest payment of $28,366)
· Year ending 30 June 2021 - $75,751
[32] PCB 115
84In the 2021/2022 tax year, Mr Farrugia earned $75,829 gross in the three-month period from 20 September 2021 up to and including his last day of work in December 2021.[33]
[33]PCB 129
85It can be observed that Mr Farrugia’s best gross earnings from personal exertion in the three tax years prior to injury were $75,751. He earned a similar amount working for only three months in the first half of the tax year in which he was injured.
86Mr Farrugia deposed that he was contacted by the employer after December 2021, asking if he was available to work but he had to decline because of his spinal injury.[34] In addition, Mr Farrugia tendered a text from his employer dated 24 August 2022 asking if he was available for work.[35] It was not apparent on the evidence whether Mr Farrugia was offered a further contract by the employer during the 2021/2022 tax year.
[34]PCB 26
[35]PCB 152
87I am not persuaded that a figure of $5,038 multiplied by say 48 weeks (that is $242,000) ‘most fairly’ represents the gross income that Mr Farrugia was capable of earning from personal exertion without injury. The evidence does not support a finding that the shutdown and maintenance project work Mr Farrugia was prepared to perform was available all the time, nor that Mr Farrugia was willing or able to perform it on anything other than a periodic short-term contract basis.
88I find that the figure of $79,000 does not most fairly reflect the gross income that Mr Farrugia was capable of earning without injury. Mr Farrugia earned a similar figure in a three-month period within the first six months of the 2021/2022 tax year. I accept his evidence that, but for his injury, he would have accepted further contracts from the employer. That is, I find that it is more likely than not that Mr Farrugia had the capacity and was willing to perform further work.
89In my view, the figure of $150,000 ‘most fairly’ reflects Mr Farrugia’s “without injury” earning capacity. This represents approximately six months’ earnings during the 2021/2022 tax year, based on his demonstrated capacity and willingness to earn $75,000 in three months. I acknowledge that figure is considerably higher than Mr Farrugia had earned in the three years prior to injury but, in my view, it most fairly reflects the nature and quality of Mr Farrugia’s work capacity as a capital asset. This figure also better reflects Mr Farrugia’s demonstrated willingness to exercise his capacity to the extent of about six months a year.
90Having found that $150,000 represents the appropriate “without injury” earnings, the relevant 60 per cent figure is $90,000 per annum or $1,730 per week.
“With injury” earning capacity
91Mr Farrugia submitted, based principally on the evidence of Mr Doig, Dr Poppenbeek and Dr Brasier, that he has no capacity for suitable employment on a reliable and consistent basis.
92In accordance with its evidentiary onus,[36] the VWA submitted that Mr Farrugia had the capacity to work full time as a welding supervisor, a non-destructive testing technician or TAFE teacher.
[36]Giankos v SPC Ardmona Operations Ltd (2011) 34 VR 120 (“Giankos”) at 144-145, paragraph [115]
93The VWA submitted, in reliance upon a CoWork Vocational Assessment and Labour Market Analysis Report dated 20 July 2024, that each of the roles for which Mr Farrugia had capacity would produce gross full-time earnings in excess of the relevant 60 per cent threshold as follows:
(a) Welding inspector - $1,854;
(b) Non-destructive testing technician - $2,152;
(c) TAFE teacher (boilermaking) - $1,873.
94Mr Farrugia tendered a Potential Earnings Report from Erin W Consulting dated 7 October 2024.[37] Relevantly, the weekly full-time earnings for the proposed roles were as follows:
(a) Welding inspector - $31.78 gross per hour, $1,208 per week for 38 hours;
(b) Non-destructive testing technician - $27.17 gross per hour, $1,032 per week for 38 hours;
(c) TAFE teacher (boilermaking) - $30.55 gross per hour, $1,161 per week for 38 hours.
[37]PCB 130
95Neither counsel made any submissions about the different figures provided for the relevant jobs as between the CoWork Report and the Potential Earnings Report.
96In considering whether employment represents “suitable employment”, I must consider the nature of Mr Farrugia’s incapacity, the nature of his pre-injury employment, his age, education, skills and work experience, his place of residence, any return-to-work plan and any occupational rehabilitation services provided.[38]
[38]Section 3 of the Act
97I am required to take a “real world” approach to the plaintiff’s employment capacity. It requires more than a physical capacity to engage in a task or tasks.[39]
[39]Richter v Driscoll (2016) 51 VR 95
98I bear in mind that this is a gateway application.
99Leading Counsel for the VWA submitted that Mr Farrugia was not motivated to work. It was submitted that this was partly because Mr Farrugia had been receiving weekly payments in excess of his pre-injury earnings until weekly payments ceased in June 2024. Further, it was submitted that Mr Farrugia had not taken any steps to retrain or rehabilitate himself. Additionally, he had refused treatment he was offered. Finally, it was submitted that Mr Farrugia held the unreasonable belief that he should not have to work if he had any pain at all by reason of his spinal injury.
100Mr Farrugia is now sixty-one years of age. He has not worked in any capacity since December 2021.
101Mr Farrugia’s working life has principally been spent working as a boilermaker. He has not taken on higher or supervisory duties during his working life. I accept that Mr Farrugia has a basic education. He has limited computer skills. He has relied upon his manual skills to earn an income. I accept his evidence that he prided himself on his reliability as an employee.
102I find that each of the proposed roles of welding supervisor, TAFE teacher and non-destructive tester have light physical demands.
103Given his prior work experience, I find Mr Farrugia would likely be able to complete the relatively modest retraining required for the roles of welding supervisor and non-destructive tester. I find that he likely has the aptitude and skills for the testing role. Whilst Mr Farrugia possesses significant welding skills, I find that the necessary supervisory and administrative aspects of a welding supervisor role are not within his capability.
104To work as a TAFE teacher Mr Farrugia would likely be required to obtain a Certificate IV in Training and Assessment. Typically, this is a six-month to two-year course.[40] I find that Mr Farrugia does not have the aptitude to undertake the training required to qualify for the role of a TAFE teacher given his level of education, literacy, numeracy and computer skills. Whilst he is a very experienced boilermaker, I find that he does not have the skills, aptitude or experience to teach and manage students.
[40]DCB 886
105Dr Saadzadah and Dr Harkin were of the view that Mr Farrugia may be able to perform light work in the future.
106Dr Akil was of the view that Mr Farrugia was unfit for pre-injury duties. His report does not exclude a capacity for suitable employment.
107Mr Farrugia’s physiotherapist, Mr Mantata, is the practitioner who provided his certificates of capacity. I accept that Mr Mantata has certified Mr Farrugia fit to undertake suitable employment from June 2024; however, the restrictions noted are considerable. Indeed, Leading Counsel for the VWA conceded they are significant.[41]
[41]T74 and T77
108Mr Doig opined that Mr Farrugia likely had no work capacity.
109The opinions of the occupational physicians are of the most assistance in determining this issue given their speciality.[42]
[42] Giankos at paragraph [96]
110I accept the opinion of Dr Poppenbeek that Mr Farrugia had no work capacity as of July 2022. Whilst that report is dated, I find that there has not been any significant change in Mr Farrugia’s symptoms and impairment in the intervening period.
111I accept the opinion of Dr Brasier that Mr Farrugia does not have a realistic capacity to perform any suitable employment on a reliable and consistent basis. In my view, his opinion better accords with the impairment consequences which I have accepted.
112The timing and manner in which clarification was sought from Dr Brasier regarding his answer to question (f) was most unsatisfactory. However, I am satisfied, even absent that clarification, that Dr Brasier’s opinion was that Mr Farrugia did not have a realistic capacity for suitable employment. I make that finding because question (f) specifically asked Dr Brasier to identify the extent (in terms of hours per week) of Mr Farrugia’s reliable capacity for suitable employment. His answer to the question only makes sense if Dr Brasier was opining that there was no capacity for suitable employment.
113I prefer the opinions of Dr Poppenbeek and Dr Brasier to that of Dr Rahgozar. I note that Dr Rahgozar was of the view that the aggravation injury had likely ceased. I do not accept that opinion given the continuing symptoms experienced by Mr Farrugia since the incident. Further, his opinion does not sufficiently grapple with each of the factors relevant to a consideration of capacity for suitable employment, particularly the capacity to work on a consistent and reliable basis.
114During cross-examination, Mr Farrugia agreed that he did not feel that he should have to work with any pain. He said he would return to work if he was pain free but not otherwise.[43] Given my findings as to Mr Farrugia’s impairment consequences, those beliefs are not relevant to my consideration of Mr Farrugia’s capacity to work.
[43]T30
115Further, Mr Farrugia agreed in cross-examination that he had told the CoWork assessor that he did not believe he should have to do work he did not really want to do, and did not want to perform lower paid work. Again, given my findings as to Mr Farrugia’s work capacity, those beliefs are not relevant.
116I find that Mr Farrugia does not lack motivation to work in suitable employment but believes he lacks the capacity to do so on a reliable basis and in fact does lack the capacity to do so. I accept his evidence that he made enquiries about work as a hire controller but believed he was unfit to perform the required cleaning of cars by reason of his spinal injury. I do not accept that the receipt of weekly payments led to a lack of motivation to work.
117Leading Counsel for the VWA submitted that Mr Farrugia has unreasonably failed to engage in rehabilitation by not having the treatment recommended by Dr Mehr, not undertaking training and not applying for work.[44] I do not make that finding. As articulated, I do not find Mr Farrugia’s refusal to undergo the treatment recommended by Dr Mehr to be unreasonable. Further, in light of my findings regarding Mr Farrugia’s ongoing pain and impairment, in my view, he does not have a capacity for suitable employment on a reliable and consistent basis. He has not unreasonably failed to engage in rehabilitation.
[44]Weldemichael v ID Sales & Repairs Pty Ltd [2019] VSCA 68
118I find that Mr Farrugia has satisfied his onus to establish that he is permanently unable to undertake suitable employment in which he could earn at least $90,000 per annum.
Is the loss of earning capacity consequence of Mr Farrugia’s compensable spinal injury “serious”?
119I find that the loss of capacity to undertake his pre-injury employment or suitable employment now and into the foreseeable future is a consequence that can be “fairly described as being more than significant or marked, and as being at least very considerable”. Mr Farrugia therefore satisfies the narrative test.
Conclusion
120Given my findings with respect to the application for leave to claim loss of earning capacity damages with respect to Mr Farrugia’s spinal impairment, it is unnecessary to consider the claim with respect to the claimed psychological disturbance.
121Mr Farrugia has leave to issue common law proceedings claiming both pain and suffering and loss of earning capacity damages.
122I will hear the parties on the issue of costs.
- - -
0
7
0