Htwe v VWA
[2025] VCC 881
•27 June 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-24-00008
| YE HTWE | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE GINNANE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 & 5 June 2025 | |
DATE OF JUDGMENT: | 27 June 2025 | |
CASE MAY BE CITED AS: | Htwe v VWA | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 881 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – lumbar spine – aggravation injury - chronic pain – pain and suffering consequences– credibility – Loss of earnings capacity – whether no capacity of capacity for suitable employment
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013 (Vic)
Cases Cited:Barwon Spinners Pty Ltd & OrsvPodolak [2005] VSCA 33; Hunter v Transport Accident Commission & Avalanche [2005] VSCA 1; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Stijepic v One Force Group Australia Pty Ltd [2009] VSCA 181; Tatiara Wheat Co Pty Ltd v Kelso [2010] VSCA 12; Dundar v Bas [2019] VSCA 315; TTB SMS Pty Ltd v Reading [2020] VSCA 203; Haden Engineering Pty Ltd v McKinnon (2010) 21 VR 1; Richter v Driscoll [2016] VSCA 142
Judgment:The plaintiff is granted leave to pursue a common law claim for pain and suffering damages and economic loss
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P O’Dwyer KC Mr A Saunders | Shine Lawyers Pty Ltd |
| For the Defendant | Mr E Makowski | Russell Kennedy Pty Ltd |
HIS HONOUR:
1The plaintiff’s Particulars of Injury filed in support of his Originating Motion were expressed as:
(a) Injury to the low back;
(b) Production, aggravation and/or acceleration of a disc prolapse at L4/L5 and/or L5/S1;
(c) Production, aggravation and/or acceleration of an annular tear at L4/L5 and/or L5/S1;
(d) Production, aggravation and/or acceleration of lumbar spondylosis;
(e) Associated referred leg pain and/or radiculopathy; and
(f) Anxiety and depression.[1]
[1]At the commencement of the hearing, the plaintiff’s leading counsel, advised that the claim was pursued only under paragraph (a) of the definition of ‘serious injury’ and not under paragraph (c), as well as for economic loss.
2The spine injury pressed on behalf of the plaintiff focused on a specific occurrence of acute pain following on the execution of a particular task by him in 2019.
Relevant legal principles – serious injury
3The Court must not give leave to a plaintiff unless it is satisfied, on the balance of probabilities, that the “injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s325(1) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“WIRCA”).
4Paragraph (a) of the definition of “serious injury” contained in s325(1) of the WIRCA reads:
“‘Serious injury’ means –
(a) Permanent serious impairment or loss of a body function ….”
5To establish serious injury, the plaintiff must prove, on the balance of probabilities, that:
(a) “the injury” suffered by her arose out of or due to the nature of her employment with the employer on or after 1 July 2014;[2]
(b) “the injury” and resulting impairment must be “permanent” – that is, permanent in the sense that it is “likely to last for the foreseeable future”;[3]
(c) the “consequences” of the impairment in relation to “pain and suffering” must be “serious” – that is, the impairment or loss of body function “when judged by comparison with other cases in the range of possible impairments … may be fairly described as being more than significant or marked, and as being at least very considerable”.[4]
[2]Section 5(1)(a) of the WIRCA; see also Barwon Spinners Pty Ltd & Ors v Podolak [2005] VSCA 33 (‘Barwon’).
[3] Barwon [2005] VSCA 33, [33].
[4] Section 325(2)(c) of the WIRCA.
6The requirement to satisfy these elements is sometimes referred to as the “narrative test”.
7In determining the “consequences” of the injury, the Court is required to consider the consequences to this particular plaintiff, when viewed objectively, arising from the injury.
8In determining the application, the Court:
(a) must not take into account psychological or psychiatric consequences of “the injury” for the purposes of paragraph (a) of the definition of “serious injury” – these can only be taken into account for the purposes of paragraph (c) of the definition of “serious injury”;[5]
(b) must assess whether “the injury” is a “serious injury” as at the time the application is heard;[6]
(c) must give reasons that disclose the pathway of reasoning in dealing with the evidence and issues raised by the application;[7]
[5] Section 325(2)(h) of the WIRCA.
[6] Section 325(2)(j) of the WIRCA.
[7]See generally Hunter v Transport Accident Commission & Avalanche [2005] VSCA 1, [23]-[26]. See Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592, 628 (Dodds-Streeton JA); see also Sabo v George Weston Foods [2009] VSCA 242, [67].
9The question of whether an injury satisfies the narrative test is largely a question of impression or value judgement.
10In TTB SMS Pty Ltd v Reading,[8] Tate and T Forrest JJA, had occasion to emphasise the essential aspects to which consideration is to be given on a serious injury application in a pain and suffering case and these are:
(a) serious injury means permanent serious impairment or loss of a body function;[9]
(b) an impairment shall not be held to be serious unless the pain and suffering 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;[10]
(c) in assessing the seriousness of the claimed impairment consequences, a Court is required to consider both the effects of the impairment and those aspects of the affected body function which remain unaffected.[11]
[8][2020] VSCA 203.
[9]Section 325 of the WIRCA.
[10]Section 325 of the WIRCA. This formulation picked up the language in Humphries, which concerned similar provisions in the Transport Accident Act 1986.
[11]Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 (‘Dwyer’), [27] per Ashley JA; Stijepic v One Force Group Australia Pty Ltd [2009] VSCA 181, [44] per Ashley JA and Beach AJA; Tatiara Wheat Co Pty Ltd v Kelso [2010] VSCA 12, [77] per Ross AJA, quoting Dwyer [2008] VSCA 260, [27]).
The Documentary Evidence
11The plaintiff relied on substantial amounts of evidence:
(a) Affidavit of Ye Min Htwe dated 7 August 2023;[12]
[12]Exhibit P1, Plaintiff’s Court Book (“PCB”) 9-17.
(b) Further affidavit of Ye Min Htwe dated 4 July 2024;[13]
[13]Exhibit P2, PCB 18-23.
(c) Further affidavit of Ye Min Htwe dated 7 May 2025;[14]
[14]Exhibit P3, PCB 112-114.
(d) Draft Statement of Claim dated 7 August 2023;[15]
(e) Accident Incident Report dated 3 March 2015;[16]
(f) Accident Incident Report dated 26 January 2019;[17]
(g) Bundle of Radiology Reports, including:
§MDCT Scan Lumbosacral Spine dated 20 June 2018;[18]
§MRI Lumbar Spine dated 4 May 2019;[19]
§Fluoroscopy Spine dated 8 September 2020;[20]
§Fluoroscopy Spine 4 July 2020;[21]
§MRI Lumbar Spine dated 5 September 2024.[22]
[15]Exhibit P4, PCB 32-26.
[16]Exhibit P5, PCB 37.
[17]Exhibit P6, PCB 38-39.
[18]Exhibit P7, PCB 45-46.
[19]Exhibit P7, PCB 47-48.
[20]Exhibit P7, PCB 49.
[21]Exhibit P7, PCB 50.
[22]Exhibit P7, PCB 180.
(h) Report of Dr Shima Tajik dated 30 September 2019;[23]
[23]Exhibit P8, PCB 51-52.
(i) Report of Dr Shima Tajik dated 18 August 2019;[24]
[24]Exhibit P9, PCB 53-54.
(j) Report of Dr Shima Tajik dated 8 January 2025;[25]
[25]Exhibit P10, PCB 170-172.
(k) Report of Mr Patrick Chan dated 2 May 2020;[26]
[26]Exhibit P11, PCB 57-60.
(l) Report of Mr Patrick Chan dated 4 June 2023;[27]
[27]Exhibit P12, PCB 61-62.
(m) Report of Dr Nick Christelis dated 17 July 2019;[28]
[28]Exhibit P13, PCB 63-64.
(n) Dr Rajiv Chawla Operation Records and Reports;[29]
[29]Exhibit P14, PCB 70-72.
(o) Report of Dr Glareh Arfaei undated;[30]
[30]Exhibit P15, PCB 73-74.
(p) Two Reports of Professor Richard Bittar dated 8 September 2023 and 14 March 2025;[31]
(q) Two Reports of Dr Joseph Slesenger dated 24 October 2023 and 28 April 2025;[32]
(r) Two Reports of Dr Eman Awad dated 9 May 2024 and 12 August 2024;[33]
(s) Medical Panels Opinion and Reasons dated 22 January 2020;[34]
(t) Report of Flexi Personnel dated 8 May 2025;[35]
(u) Dr Terence Tan letter to Dr Shima Tajik dated 19 September 2024;[36]
(v) Dr Behrooz Maylie letter to Dr Shima Tajik dated 2 May 2025;[37]
(w) Clinical records extracted from Clayton Road Doctors for attendances between 4 March 2015 and 28 January 2019;[38]
(x) uLaunch Card;[39]
(y) Certificate of Capacity dated 13 February 2019.[40]
[31]Exhibit P16, PCB 75-81, 118-124.
[32]Exhibit P17, PCB 82-95, 125-145.
[33]Exhibit P18, PCB 96-102, 115-117.
[34]Exhibit P19, PCB 105-111.
[35]Exhibit P20, PCB 146-163.
[36]Exhibit P21, PCB 167-169.
[37]Exhibit P22, PCB 175-179.
[38]Exhibit P23, PCB 182-191.
[39]Exhibit P24.
[40]Exhibit P25, Defendant’s Court Book (“DCB”) 9-10.
12The defendant also relied on substantial evidence comprising:
(a) Certificate of Capacity dated 6 January 2022;[41]
[41]Exhibit D1, DCB 75-76.
(b) Report of Ms Rachel Tan dated 4 May 2023;[42]
[42]Exhibit D2, DCB 79.
(c) Report of Dr David Barton dated 20 June 2019;[43]
[43]Exhibit D3, DCB 88-93.
(d) Report of Dr Simon Cohen dated 13 May 2021;[44]
[44]Exhibit D4, DCB 96-104.
(e) Two Reports of Dr Majid Rahgozar dated 1 June 2021 and 23 June 2021;[45]
[45]Exhibit D5, DCB 105-117.
(f) Report of Associate Professor Saji Damodaran dated 24 August 2021;[46]
(g) Report of Professor Geoffrey Littlejohn dated 18 April 2023;[47]
(h) Four Reports of Mr Michael Dooley dated 24 October 2023, 22 May 2024, 19 December 2024, 11 March 2025;[48]
(i) Three Reports of Dr Reza Sabetghadam dated 8 December 2023, 6 January 2025, 14 March 2025;[49]
(j) Workable Consulting 130 Week Vocational Assessment Report dated 17 June 2021;[50]
(k) Nabenet Vocational Assessment Report dated 10 November 2023;[51]
(l) Plaintiff’s Resume;[52]
(m) Plaintiff’s Cover Letter;[53]
(n) Lists of jobs the Plaintiff has applied for via the Seek website in the last 90 days and copies of emails and texts between prospective employers and the Plaintiff;[54]
(o) Training Certificates.[55]
[46]Exhibit D6, DCB 118-129.
[47]Exhibit D7, DCB 130-139.
[48]Exhibit D8, DCB 140-155.
[49]Exhibit D9, DCB 156-206.
[50]Exhibit D10, DCB 207-222.
[51]Exhibit D11, DCB 223-236.
[52]Exhibit D12, DCB 259.
[53]Exhibit D13, DCB 260.
[54]Exhibit D14, DCB 261-282.
[55]Exhibit D15, DCB 283-286.
13I have read and had regard to the affidavit evidence, cross-examination and re-examination of the plaintiff, and the medical and vocational evidence relied on by the parties. In the reasons that follow, I have referred to only such of the evidence that has proved necessary to explain the basis of the decision I have reached.
The Affidavits
14The plaintiff made three affidavits in support of his application and they are dated 7 August 2023,[56] 4 July 2024,[57] and 7 May 2025.[58] The plaintiff deposed that he was born in Myanmar in December 1969. He came to Australia in 1995 on a tourist visa and was later granted refugee status. He is single and lives with his brother and his wife. He resides in a single room. His first language is Burmese, however, he studied English at school. He has a working competence in English but sometimes struggles with reading and writing. He did not complete secondary education. Since coming to Australia, he has worked as a machine operator.
[56] Exhibit P1, PCB 9-17.
[57] Exhibit P2, PFFACB 18-23.
[58] Exhibit P3, PFFACB 112-114.
15It was in about 2011 that the plaintiff commenced work with Godfrey Hirst Logistics P/L as a machine operator making synthetic yarns for carpet. In about 2012, he resigned from his employment and worked for Micropallets Australia as a machine operator for approximately six months. He returned to employment with Godfrey Hirst as a machine operator immediately afterwards, and worked 12-hour days on a rotating shift (days then nights), four days on, four days off.
16The plaintiff deposed that on 3 March 2015, he needed to replace a mould on a co-worker’s machine. The mould was heavy and had to be lifted into position overhead on a stick. When engaged in the task, he felt a sharp pain in his low back. This, he said, is when he first remembers experiencing back pain. No claim for injury was made and he self-managed, although he said he reported its occurrence to his employer.
17The plaintiff further deposed that on 26 January 2019, he was required to tighten bolts on a mould. On the last bolt, he twisted awkwardly as he attempted to tighten it, and immediately felt sharp pain in his low back. He lodged a WorkCover claim for the injury. The claim was accepted.
18As to the consequences of injury relied on by the plaintiff, he said that firstly, he has not been able to return to work, and he expressed concern that he will not be able to do so. Secondly, he has ‘some difficulty with daily activities, such as showering and dressing’. Thirdly, he is no longer able to do much around the house, aside from keeping his room clean. He doubts he could live alone without considerable assistance. He explained that his domestic arrangement is that he resides with his brother and sister in law. Fourthly, he is no longer able to play badminton. He said he was a keen player before the accident. He played socially once a week and it was a pursuit he enjoyed but one that he has been unable to return to because of the injury. As well, he says that he suffers other limitations in recreational activities such as gardening.
19The plaintiff does not believe he could work. He said he does not believe that he could perform his pre-injury duties, or any kind of manual work reliably or consistently because of the regular flare-ups of pain he suffers. He said he would struggle to cope with office work even on a very part-time basis because of difficulty concentrating, and an inability to sit for extended periods.
Discussion of the plaintiff’s medical evidence
Mr Patrick Chan
20Mr Chan is a neuro and spinal surgeon. In a report to the plaintiff’s lawyers dated 2 May 2020, he recorded that the plaintiff was referred to him by his treating General Practitioner, Dr Shima Tajik. Mr Chan reviewed the plaintiff on 4 June 2019. The plaintiff said that his 2015 injury had resolved.
21Mr Chan said the plaintiff complained to him of experiencing persistent mechanical axial lower back pain since his work injury.
22Mr Chan diagnosed a chronic mechanical axial lower back pain without radiculopathy and without claudication. He referred to the presence of underlying L4-L5 and L5-S1 disc desiccation on MRI of the lumbar spine of 4 May 2019 with L4-L5 broad-based disc bulge contacting bilateral traversing L5 nerve root with a small annular fissure. There was also a L5-S1 broad-based disc bulge without neurocompression with a small annular fissure.
23Reviewing the plaintiff’s clinical and radiological findings, Mr Chan said the plaintiff did not require neurosurgical intervention and that he should be able to return to light duties work. He considered that the plaintiff had a current capacity to perform suitable employment. Mr Chan considered that suitable employment, would be work that did not involve bending or twisting. He also said that the plaintiff should refrain from heavy lifting, heavy pushing or pulling. There should be avoidance of jarring to the back. He said that if such suitable duties proved available, that the plaintiff should commence with half day half week work. He added that the recommended restrictions would be likely to last for the foreseeable future.
24Mr Chan, however, added that he considered that the medication that the plaintiff was taking was likely to restrict and to preclude him from undertaking suitable employment as some of it was sedative in its effects and could result in poor judgment and planning capacity.
25In a second report addressed to the plaintiff’s solicitors dated 4 June 2023, Mr Chan wrote that he had not reviewed the plaintiff since 2 May 2020 and, therefore, the opinion expressed proceeded on an assumption that if the facts were still as had been related to him by the plaintiff in May 2020, then his opinion remained unchanged.
Dr Glareh Arfaei
26Dr Arfaei is a Specialist Pain and Rehabilitation Physician to whom the plaintiff was referred for specialist pain management. An undated report from him was tendered by the plaintiff.[59] Dr Arfaei conducted two clinical assessments of the plaintiff on 2 August 2022 and 25 October 2022.
[59] Exhibit P19, PCB 105-111.
27At the date of his first clinical assessment, Dr Arfaei said that the plaintiff presented with a history of chronic pain following injuries sustained at work in 2015 and had been initially treated by Dr Arfaei’s colleagues for his pain and was referred to him for suitability for rehabilitation. The plaintiff reported that he had experienced a few incidents at work while using heavy machinery and performing heavy lifting with twisting motions. On two occasions he had a forceful pulling and twisting which resulted in back pain. Initially he had simple analgesia and a day off before seeing a GP and having a scan. He was reviewed by a spinal surgeon who referred to desiccation of the L4/5 and L5/S1 with annular fissure, broad-based disc prolapse contacting the bilateral L5 nerve roots. Sometime later, the plaintiff developed a left-leg radiculopathy, which manifested as pins and needles, starting from the gluteal region and passing through the lateral thigh and ending in the last two toes with some numbness. Due to the pain, and fear-avoidant behaviour, he appeared to have developed some weakness in his left leg, to the point that lifting it was sometimes difficult. This also impacted his ability to go up steps and that without a hand rail he did not have the endurance to climb more than two steps.
28Dr Arfaei noted that medial branch blocks had been performed on a few occasions by pain physicians, but had not provided any benefit, while a block at L5 and S1 and subsequent pulsed radiofrequency to the dorsal root ganglion of L5 and S1 provided some good relief. Physiotherapy had ceased, although the plaintiff continued with exercises gained from earlier sessions.
29Dr Arfaei said the employer ceased trading and the plaintiff was unemployed. He was anxious and depressed about his lack of success with job applications, while pain and intrusive thoughts at nighttime were affecting his quality and quantity of sleep. He tended to wake up feeling unrefreshed. He had not had a further psychology session after having had poor rapport with a clinician earlier on.
30Dr Arfaei said the plaintiff had undergone an assessment at Donvale with a multidisciplinary team and was due to commence a programme the following week. He was to be assessed by a physiotherapist and exercise physiologist. Dr Arfaei said he had not subsequently seen the plaintiff and therefore was unable to comment on the plaintiff’s present condition.
Dr Nick Christelis
31Dr Christelis is a Pain Specialist and Anaesthetist to whom the plaintiff was referred by Mr Chan. There is considerable evidence of various interventional procedures Dr Christelis performed on the plaintiff between 2020 and 2021. In his report back to Mr Chan dated 17 July 2019, he sketched out a suite of recommended further treatment modalities. He said that:
· I read through the MRI report but have not looked at the scan myself. There is a bit of disc desiccation at L4-L5, possibly contacting/traversing L5, but certainly, as you mentioned, nothing of significance,
· I have reassured him that his spine is essentially normal for his age and should not hamper him in anything that he chooses to do.
· I recommend continuing the Palexia 100 mg bd but not escalating that dose.
· I recommend Norflex 50 mg to 100 mg tds for myofascial cramps and pain.
· I recommend a low-dose Endep 5 mg to 10 mg nocte.
· I recommend seeing our physiotherapist and occupational therapist here for some advice, education and confidence building.
· I recommend doing two diagnostic medial branch blocks. The first one would be just to settle things down and not diagnostic but more therapeutic, local anaesthetic and steroid. The second block I would do would be diagnostic. If positive, he may be appropriate for radiofrequency ablation but I want to settle things down and get him moving first.
32The interventions foreshadowed by Dr Christelis were carried out on the plaintiff.
Dr Rajiv Chawla
33Dr Chawla is a Pain Specialist & Anaesthetist. He reported to the plaintiff’s GP, Dr Tajik on 8 November 2020 and said:[60]
I reviewed Mr Ye Min Htwe over a telephone consultation who reported to me that his left leg pain is much worse now. I understand he had an MRI scan which has shown broad based disc at L4/5 level which is compressing the left nerve root and it is in keeping with his left leg pain. I understand that he had been advised to increase the dose of Endep but he did not have much on him; hence I have given him a new script today. He is currently using gabapentin 100 mg twice a day and I have asked him to increase it as well. In agreement with Mr Htwe I shall organise for him to have a pulsed radiofrequency of L5 and S1 DRG which I understand he had a similar done in March this year which gave him good benefit.
[60] Exhibit P14, PCB 71.
34An operation record dated 16 March 2020 recorded that Dr Chawla performed a pulsed radiofrequency DRG/nerve roots lumbar spine, L5, S1 Left side.
Dr Shima Tajik
35The plaintiff’s treating General Practitioner, Dr Tajik, in a report dated 8 January 2025 prepared at the request of the plaintiff’s solicitors said that the plaintiff should avoid any lifting above 5 kg. He should avoid bending, lifting, twisting, or a combination of these movements. He should minimize activities that strain the lower back.
36Dr Tajik thought that the plaintiff’s prognosis remained guarded due to the chronic nature of his condition and that although improvement is possible with ongoing conservative management, his capacity for heavy physical work will remain permanently impaired. He said that he considered the work activities to have been a significant contributing factor to the plaintiff’s ongoing spinal impairment and chronic back pain.
37The single certificate of capacity tendered by the plaintiff from his treating doctor from January 2022 was a capacity for suitable employment with accommodations and restrictions in the nature of those that have been commented on and advised by others who have examined him. The balance of the plaintiff’s medical evidence comprised medico-legal reporting.
Medico-legal reports
Professor Richard Bittar
38Professor Bittar provided a medico legal opinion at the request of the plaintiff’s solicitors dated 8 September 2023. He said that when he examined the plaintiff on 8 September 2023, he complained of:
Lower back pain. He experiences intermittent lower back pain which occurs around once or twice a day, typically lasting around an hour or so on each occasion. His lower back pain varies in character between sharp, stabbing and aching. It is left-sided and is located in the lower lumbar region. It has an average severity of 7-8/10. It is precipitated and exacerbated by twisting, lifting more than around 5 kg, pushing or pulling, sitting for more than 20 minutes, and standing or walking for more than around 40 minutes. It improves with recumbency, heat packs and medications.
39Professor Bittar addressed the plaintiff’s left leg pain and said:
He experiences intermittent pain radiating into his left leg. His leg pain radiates from his lower back through his left hip and buttock to his anterolateral thigh and also hamstrings, but generally not beyond his knee. He experiences tingling and numbness through the anterolateral thigh. His leg pain is of similar character but is slightly less severe than his lower back pain. His leg pain and back pain tend to occur at the same time.
40Professor Bittar said that the plaintiff’s treatment consisted of daily medications of Palexia, Norflex, paracetamol and Endep. He was taking nonsteroidal anti-inflammatory medications as required.
41Professor Bittar described the plaintiff as socialising “moderately less than he did previously due to frequent back pain and difficulty sitting for long periods”. I interpolate that this characterisation by Professor Bittar of ‘moderately less socialising’, fairly accords with the plaintiff’s oral evidence in the course of the hearing.
42Professor Bittar reported that the plaintiff said his sleep is severely disrupted and he often experiences daytime tiredness. His recreational activities are affected. The plaintiff told Professor Bittar that he previously enjoyed playing badminton but no longer participates in any significant sporting activities. He can do limited shopping and cooking but is unable to do any gardening or cleaning. He relies on his brother and sister-in-law for these activities. Overall he described a quality of life that is significantly diminished.
43Professor Bittar referred to the plaintiff’s initial treatment following the January 2019 incident that included analgesic medications and physiotherapy. The plaintiff returned to work after around five weeks on light duties part-time; however, his lower back pain deteriorated. The factory closed in mid-April 2019, and he has not worked since.
44Professor Bittar related that the plaintiff had consulted with Dr Patrick Chan, in June 2019, who recommended a nonsurgical approach and referred him to a pain specialist. The plaintiff then came under the care of Pain Specialists, Dr Nick Christelis, and Raja Chawla. He underwent lumbar medial branch blocks in July 2020 and control blocks in September 2020. He underwent further nerve blocks (L5 and S1) in October 2020 and with control nerve blocks being performed in January 2021. He underwent pulsed radiofrequency neurotomies of the dorsal root ganglia of L5 and S1 on the left-hand side in March 2021.
45The plaintiff told Professor Bittar that he obtained a significant benefit from the injections, and so underwent repeat procedures, in November 2021 and March 2022. With the passage of time, however, he has lost some of the benefit from the recent injection. Professor Bittar also said he understood that the plaintiff had completed a pain management program at Dorset Rehabilitation Centre in late 2022 and/or early 2023.[61]
[61]The evidence revealed that the plaintiff did not complete the rehabilitation program at Dorset.
46Professor Bittar said that the plaintiff’s ongoing treatment is of analgesic medications and a self-supervised program of regular gentle exercise. He continues to experience ongoing lower back pain with flare-ups of pain around once a week. Flare-ups of pain can last several days and they tend to occur unpredictably.
47Professor Bittar addressed various radiological investigations that he viewed, including a CT lumbar spine performed at Capital Radiology on June 20, 2018, that demonstrated a broad based disc bulge at L4/5 without neural compression. MRI of the lumbar spine performed on May 4, 2019, at iMed demonstrated a broad-based disc bulge at L4/5 contacting the L5 nerve roots. Degenerative disc disease was seen at L5/S1. Annular tears were seen at L4/5 and L5/S1. There was straightening of the normal lumbar lordosis. MRI of the lumbar spine performed at iMed on 3 November 2021, demonstrated persistent straightening of the normal lumbar lordosis with disc desiccation and annular tears at L4/5 and L5/S1. There was bilateral subarticular narrowing at L4/5 with compression of the left L5 nerve root. There was disc bulging but no neural compression at L5/S1. There was no foraminal stenosis.
48In Professor Bittar’s opinion the plaintiff presented with L4/5 intervertebral disc prolapse and aggravation of lumbar spondylosis.
49Professor Bittar addressed treatment recommendations. He said that given the plaintiff’s failure to respond to a prolonged period of conservative treatment, consideration should be given to “a more aggressive treatment approach. One treatment option would be a left L4/5 decompression and microdiscectomy. This would be likely to improve his leg symptoms; however, may not improve his back pain. Otherwise he should continue with his current treatment regime. Prior to considering surgical intervention, I would recommend an up-to-date left L5 nerve block. If this offers him a significant benefit, the abovementioned surgical procedure should be considered. Otherwise he should continue with his current treatment regime”.
50Responding to the plaintiff’s prognosis, Professor Bittar thought that he is likely to continue to experience significant pain and disability into the foreseeable future. He had also developed a significant chronic pain condition.
51Professor Bittar considered the plaintiff as incapacitated for his full pre-injury duties as a result of his work-related lumbar spine condition. Taking into account his age, education, training skills and work experience, as well as the nature and severity of his work-related lumbar spine condition, he thought that the plaintiff does not possess a realistic capacity for suitable employment and that a total incapacity for work is permanent. He noted that the plaintiff was taking significant medications on a daily basis including Palexia, Norflex and Endep, which medications are likely to impact his work capacity as they have a number of side-effects, including drowsiness, lethargy and difficulty concentrating.
52Professor Bittar said that the plaintiff has a compressed left L5 nerve root which is almost certainly the cause of his left leg pain and probably causes much of his back pain. He thought consideration should be given to decompression of that nerve root.
53Lastly, Professor Bittar said that injuries to the L4/5 and probably the L5/S1 intervertebral disc, were likely to degenerate faster than they otherwise would with the ordinary aging process, however, he acknowledged the difficulty in quantifying this risk.
54In a supplementary report dated 14 March 2025, Professor Bittar said that he had further examined the plaintiff. He said that the plaintiff walked with a slightly antalgic gait. He exhibited severe restriction of lumbar spine flexion with more severe restriction of lumbar spine extension. Extension was more painful for the plaintiff than was flexion. He had bilateral lumbar paravertebral muscle spasm and left-sided lumbosacral tenderness. Straight leg raising was normal. Neurological examination of the lower limbs did not reveal evidence of radiculopathy or myelopathy. He did not identify evidence of abnormal illness behaviour.
55Professor Bittar maintained his diagnosis of L4/5 intervertebral disc prolapse and aggravation of lumbar spondylosis.
56Professor Bittar said that given the chronicity of the plaintiff’s condition and the lack of any significant ongoing neural compression on MRI, he would not recommend surgical intervention but that the plaintiff continue with his current treatment regime.
57Addressing prognosis, Professor Bittar said the plaintiff is likely to continue to experience significant pain and disability into the foreseeable future. He noted the development of a significant chronic pain condition.
58Professor Bittar said that he remained of the opinion that the plaintiff is incapacitated for his full pre-injury duties as a result of his work-related lumbar spine condition. Taking into account his age, education, training, skills, and work experience, as well as the nature and severity of his work-related lumbar spine condition, he thought that the plaintiff does not have any realistic capacity for suitable employment and that his total incapacity for work is permanent.
Dr Joseph Slesenger
59Dr Joseph Slesenger is an Occupational Physician who provided a medico legal report dated 24 October 2023. He addressed the various affected components of the plaintiff’s spine, and said of them as follows:
Lower back
His lower back pain has persisted despite treatment and he advised of residual severe lower back pain with pain radiating into his left leg. The pain is dull in character and sharp. The pain is aggravated by standing for more than 20 minutes, walking for more than 20 minutes and sitting for more than 20 minutes.
Fatigue
He advised that he is fatigued during the day. He lies down regularly for 6-7 hours during the course of the day in order to manage his symptoms, including his lower back pain and fatigue. He attributes this to a combination of medication side effects, chronic pain and poor sleep. The plaintiff said that during the course of his recovery, he developed depression and anxiety and has been seen by a psychologist.
60Dr Slesenger recorded that the plaintiff was taking:
(a) Norflex twice a day;
(b) Palexia 100 mg twice daily;
(c) Endep two at night;
(d) Mobic 15 mg;
(e) Panadol two tablets four times daily.
61The plaintiff told Dr Slesenger that his medications are associated with drowsiness, nausea, fatigue and confusion.
62The plaintiff said that he is able to dress, wash, shower and toilet himself but does so slowly. He wakes at around 7 am and retires around 11 pm. He said that that he sleeps poorly at night and sleeps for no more than a few hours. He spends his days at home using the internet, using his phone and occasionally walking short distances. He can perform light shopping, cooking and cleaning, although his housemates perform all other domestic duties.
63The plaintiff said that he used to enjoy badminton, but ceased playing prior to the accident. He said that he is able to drive for up to 20 minutes in an automatic car.
64Dr Slesenger described the plaintiff’s thoracolumbar spine in the following terms:
· Inspection: there was evidence of eczema on the lumbar spine and the plaintiff advised that this was the site of his use of a heat plaster.
· Palpation: there was tenderness on deep palpation over the lumbar spine and the paraspinal musculature.
· Range of movements:
§Flexion: 40 degrees.
§Extension: 10 degrees.
§Right rotation: 20 degrees.
§Left rotation: 20 degrees.
§Right lateral tilting: 10 degrees.
§Left lateral tilting: 10 degrees.
· Tests:
§Axial loading: negative.
§Truncal rotation: negative.
Lower limb measurements:
· Calf circumference:
§Right: 33 cm.
§Left: 32.5 cm.
Lower limb neurological examination:
· Power:
§Right: 4/5.
§Left: 2-3/5.
· Tone: normal bilaterally.
· Sensation: normal bilaterally.
· Reflexes:
§Ankle reflexes: normal bilaterally.
§Knee reflexes: dull bilaterally.
§Plantar reflexes: down going bilaterally.
· Tests: straight leg raise test:
§Right (supine): 30 degrees.
§Left (supine): 30 degrees.
§Seated: 90 degrees bilaterally.
65Dr Slesenger diagnosed the plaintiff with a soft tissue injury to the lumbar spine and an aggravation of degenerative disease and chronic lower back with left leg radiating features, without evidence of radiculopathy.
66Dr Slesenger said that taking into account the plaintiff’s current symptoms, his functional limitations, the variable nature of his symptoms, his daytime fatigue, his medication side effects, his past employment history, his qualifications, his literacy and computer skills, he did not anticipate him returning to performing suitable alternative duties on a consistent and reliable basis. He said he also entertained some concerns with regard to the plaintiff’s medication, noting their side-effects, particularly causing nausea, fatigue and confusion, and accordingly, he anticipated this as is likely to impact on his ability to return to work.
67In a supplementary, but undated report, Dr Slesenger wrote that he examined the plaintiff on 11 March 2025, and that in the interval since his first evaluation, the plaintiff said that his symptoms had not improved, and that he had been seen by a pain specialist. He had undergone multiple interventional procedures, including radiofrequency denervation on two occasions, as well as another five diagnostic procedures but nevertheless, advised of residual, moderate to severe pain at a level of 6-7/10. The pain was dull, as well as sharp in character, with radiating pain throughout the left leg to the level of the ankle. The plaintiff said that his symptoms were managed with medication and rest.
68The plaintiff told Dr Slesenger that his symptoms are aggravated by activity, particularly walking, standing and sitting for more than 20 minutes, and are also noticeably worse in cold weather.
69The plaintiff told Dr Slesenger that he had been attending a business course online which he had completed.
70Dr Slesenger said that clinical records confirmed a past history of lower back pain described as chronic, and he also noted that the clinical records confirmed that the plaintiff’s symptoms had been aggravated by the work accident and that they confirmed the continuum of symptoms since the injury and for which he sought treatment.
71With regard to alternative duties, when taking into account the plaintiff’s current symptoms and functional limitations, his past employment history, his literacy skills, his computer skills, his residential location [Springvale] and his driving capacity, Dr Slesenger did not anticipate the plaintiff returning to work in a role for which he has suitable training and experience on a consistent and reliable basis.
Dr Eman Awad
72Dr Awad is a Consultant Occupational Medicine Physician to whom the plaintiff was sent for examination and from whom a medico legal report was requested and which she furnished dated 9 May 2024.
73Dr Awad came to provide two reports. In the first of them, Dr Awad related that the plaintiff complained of variable pain in his lower back, with a severity score of 5-6/10, and with a superimposed pinching type pain, which elevated his pain scores to 10/10. The pain is intermittent, but present most of the day. He also described radiation to his left leg on the lateral aspect, stopping before his knee, associated with paraesthesia and numbness in the same distribution. He reflected that his leg pain, however, was improving ‘somewhat’. He told Dr Awad that his pain is sufficient to disturb his sleep, and that he is tired all the time and experienced non-refreshing sleep.
74The plaintiff’s functional tolerances were recorded as an ability to sit for 15 minutes, stand for 40 minutes, walk for 40 minutes, drive for 20 minutes. He is able to wash and dress himself with modifications, to reach his lower limbs. In terms of domestic chores, he reported living with his brother and sister-in-law in a small room that he is able to keep relatively clean and tidy. He chooses to buy takeaway meals rather than cook for himself as standing to cook can be aggravating. He can carry light bags of grocery shopping. He does not undertake DIY, whereas previously he had been able to service his own car, but he can no longer do so.
75The plaintiff said that his previous hobbies included badminton and bicycle riding, both of which he can no longer do. He related that prior to his injury, he enjoyed venturing out every day for walks, and to maintain his well-being, but that since his injury, he is less likely to leave the house, spending more and more time in bed. He no longer walks the dog. He has occasional cannabis to aid his sleep.
76In Dr Awad’s opinion, the plaintiff has no capacity for his pre-injury duties, and there are no workplace adjustments that would facilitate his return to work. She recommended that he should be permanently medically restricted from undertaking any manual physical roles that require him to push, pull, lift, carry above 10 kg, bend repetitively, prolong stand, climb, crouch for the foreseeable future and exposure to whole body vibration. She described the plaintiff as suffering with a permanent partial incapacity. Dr Awad said that after taking into consideration the plaintiff’s age, the nature of his injuries, his persistent pain, fatigue, lack of education and qualifications, his occupational history which had been low skilled manual labour for which he was now medically restricted, his poor English language skills, and his functional capacity and the likelihood of recurrent flare ups, these would impact on his ability to work in a reliable and sustained manner despite him presenting with a theoretical capacity to work in a sedentary role. Essentially, Dr Award concluded that the plaintiff has no real-world capacity for work.
77In a supplementary report dated 12 August 2024, Dr Awad responded to a request from the plaintiff’s solicitors to comment on a report of Dr Sabetghadam dated 8 December 2023, and reports of Dr Rahgozar dated 1 June 2021 and 23 June 2021, and to offer her opinion of the suitability for the plaintiff to work in a variety of roles that had been identified in vocational reporting obtained by the defendant and that had been addressed by them.
78Dr Awad pointed out that Dr Sabetghadam reported that based on available imaging, the plaintiff is likely to have degenerative changes, with which Dr Awad agreed. However, Dr Awad emphasised that the fact of degenerative changes should not exclude employment as a factor in the development of the changes observed on imaging, and relevantly, the plaintiff’s history was that he had been asymptomatic prior to injury. In Dr Awad’s opinion, a work aggravation of the plaintiff’s underlying lumbar spondylosis gave rise to his symptoms and that his employment, in which he undertook heavy repetitive physical work, sufficiently explained his presentation and imaging.
79Dr Awad did not agree with Dr Sabetghadam’s evaluations of the plaintiff’s fitness to work, and in her opinion, each of the roles that had been identified as suitable employment, would be likely to cause exacerbations of the plaintiff’s underlying symptoms. As to the proposed suitable employment which the defendant had identified, Dr Awad addressed them as follows:
(a) Driver. Dr Awad said she believed the plaintiff has no capacity for this role as it would expose him to whole body vibration and which need for avoidance he considered to be a long term restriction.
(b) Store person. Dr Awad said she assessed this to be an active role where employees have to lift often in a medium to high physical demand and the plaintiff has no capacity for this role as it exceeds his medical restrictions.
(c) Picker packer. Dr Awad said that the role involves prolonged sitting and standing which exceeds the plaintiff’s medical restrictions and hence did not regard him as possessing a capacity for this role.
(d) Product assembler. Dr Awad regarded this role as also involving prolonged sitting and standing and which exceeded the plaintiff’s medical restrictions and, accordingly, the plaintiff did not have the capacity to perform such work.
(e) Delivery driver. Dr Awad considered the proposed employment in such a role for the plaintiff as a poor choice, and one for which he has no capacity as it would necessitate the plaintiff repetitively getting in and out of a van and carrying items for delivery and would exceed his medical restrictions.
(f) Machine operator. Dr Awad observed that this is the same as the plaintiff’s pre-injury role and for which he has been medically restricted.
(g) Production team leader. Dr Awad said that the physicality of the role exceeds the plaintiff’s restrictions and he lacks capacity for it.
(h) Sewing machinist. Dr Awad assessed the suggested role to involve prolonged sitting which is likely to cause an aggravation of the plaintiff’s symptoms and for which he has no capacity.
(i) Assembler. Dr Awad assessed this position as an active physical role and one that exceeds the plaintiff’s restrictions and for which he has no capacity.
(j) Weighbridge operator. Dr Awad said that the plaintiff’s English skills are insufficient to allow him to input the data entry as is required for this role[62].
(k) Quality controller. Dr Awad said that the job requires prolonged standing to inspect the products for the entirety of the shift and exceeds the plaintiff’s recommended restrictions.
(l) Car park attendant. Dr Awad observed that the description entailed the role requiring prolonged standing and usually a requirement to walk the perimeter of the car park to ensure safety and that fell outside the plaintiff’s capacity.
(m) Ticket collector. Dr Awad described the suggested employment as a customer facing role and one that would require a good command of English language and falls beyond the plaintiff’s suitability and capacity.
[62] The plaintiff would testify that he had prior experience with data entry.
80Dr Awad said that in her opinion, whilst the suggested roles may contain elements of duties that the plaintiff would be able to undertake, however, when considering the role as a whole, he would not be able to undertake any of them on a regular, reliable and consistent basis. They are likely to cause aggravation of his symptoms and he would likely have a higher than average sickness absence rate.
Medical Panels Opinion and Reasons
81The plaintiff tendered a Medical Panel Opinion and Reasons dated 22 January 2020.[63] The plaintiff was examined by the Panel on 13 January 2020. The Panel concluded that the plaintiff is suffering from persisting lower back dysfunction, without radiculopathy, as a consequence of a soft tissue injury of the lumbar spine. With respect to work capacity, the Panel considered that the plaintiff’s preinjury duties as a machine operator and that the nature of the plaintiff’s lower back condition is such that he has an incapacity for work. The Panel noted the nature of the plaintiff’s current lower back condition and considered the condition may be exacerbated or aggravated if he were to return to his preinjury duties at the present time and he cannot return to his pre-injury employment and this had been the case since he ceased work. The Panel ultimately concluded that the plaintiff does have an incapacity for work and that his incapacity was and still is materially contributed to the claimed lower back injury occurring on 26 January 2019.
[63] Exhibit P19, PCB 105-111.
The Defendant’s Medical Evidence
David Barton
82Dr Barton is a Consultant Occupational Physician. He provided a report to the defendant insurer dated 20 June 2019. In his report, Dr Barton said he accepted that the plaintiff had developed a mild mechanical lower back problem but with no clear red flags to suggest more significant issues or problems. He thought that the plaintiff’s problem should have physically resolved. He said that although accepting that the plaintiff’s initial problem was caused by his work, he believed the plaintiff’s ongoing problems to have more to do with his lack of a job, illness belief and motivational factors.
83Dr Barton said he saw no reason why the plaintiff could not undertake ‘essentially normal work’ in a variety of positions consistent with his vocational experience.
Dr Simon Cohen
84Dr Cohen is a Consultant Pain Specialist Physician. He provided a report to the defendant insurer dated 13 May 2021. He was prepared to accept that the plaintiff sustained an injury to his lower back at work and that his pain would be consistent with the development of chronic lower back pain following a work-related soft tissue injury. He also noted the plaintiff had developed marked dysfunction with chronic pain and with fear avoidance.
85Dr Cohen said although the plaintiff would not be able to return to work in his previous heavy manual labouring positions he would be suitable to a largely sedentary role and that it should be work that would commence at less than 40 hours per week.
Dr Majid Rahgozar
86Dr Rahgozar is a Consultant Occupational Physician who provided two reports to the defendant insurer dated 1 June 2021 and 23 June 2021. In his first report, he assessed the plaintiff’s likely diagnosis to be a musculoligamentous injury or an exacerbation of degenerative changes of the lumbosacral spine. He observed that such injuries tend to resolve themselves but in the plaintiff’s case, they have become chronic due to a number of psychosocial factors including the following:
(a) a concurrent mental health condition;
(b) likely opioids dependence;
(c) stresses associated with the Workers' Compensation system, conciliation and Medical Panel processes;
(d) fear avoidance of further injury;
(e) lack of significant transferable skills;
(f) prolonged period of disability and inability to return to pre-injury work;
(g) elements that cannot be explained by a physical or a musculoskeletal pathology raising the possibility of non-organic component to his presentation and illness behaviour.
87In his second report Dr Rahgozar assessed the plaintiff to have a work capacity, but that he would need to avoid frequent bending and twisting of his back, lifting, pulling and pushing more than 10 kg when the load is close to the body and no more than 5 kg when the load is away from body at or above shoulder level. He said that the plaintiff is not fit for his pre-injury work.
88Dr Rahgozar commented on the Workable Consulting 130-week Vocational Assessment Report dated 17 June 2021, and thought that the plaintiff has capacity for the following jobs:
(a) light product assembler;
(b) weigh bridge operator;
(c) quality controller;
(d) car park attendant;
(e) ticket collector.
Associate Professor Saji Damodaran
89Associate Professor Damodaran is a Consultant Psychiatrist who provided a report to the defendant insurer dated 24 August 2021. He said the plaintiff was suffering from an adjustment disorder with depressed mood of mild severity that was further complicated by traumatisation features from non-work related trauma the plaintiff had been exposed to in his personal life. A/Prof Damodaran said that the plaintiff was significantly traumatised at a young age while in Burma where he was exposed to torture, trauma and civil strife which has an ongoing impact on the plaintiff’s recovery.
90A/Prof Damodaran agreed with the diagnosis of a chronic pain disorder associated with the plaintiff’s general medical condition. He said the plaintiff “has a capacity for modified or alternative duties from a psychiatric point of view up to his pre-injury hours”.[64]
[64] Exhibit D6, DCB 124.
Dr Reza Sabetghadam
91Dr Sabetghadam is an Occupational Physician who provided three reports to the defendant dated 8 December 2023, 6 January 2025 and 14 March 2025.
92In his first report, Dr Sabetghadam said that having regard to the plaintiff’s previous medical history that the degenerative changes to the lumbosacral spine developed as a result of the plaintiff’s age and genetic predisposition over a period of time but was irrelevant to his occupational duties. Dr Sabetghadam said he regarded the plaintiff’s heightened pain and disability perception and poor tolerance as “psychosocial reinforcers”. He said that in his opinion, although the plaintiff has suffered an injury to the lumbar spine including a disc prolapse, his disability is subjective and changes on a daily basis.
93Dr Sabetghadam said he did not believe the plaintiff required surgery but surgery may be needed in the future as there is a probability of him developing objective radiculopathy or cauda equina syndrome that would warrant surgical intervention.
94Dr Sabetghadam diagnosed the plaintiff with a non-specific lower back pain and non-verifiable radicular type pain which had developed on a background of degenerative changes, specifically disc prolapses. He thought the plaintiff’s work was ‘probably not’ a material contributing factor to his current condition, although it ‘was probable that the plaintiff’s occupational duties contributed to the exacerbation of his symptoms but that have subsided to the residual level’.
95Dr Sabetghadam thought the plaintiff was able to return to his pre-injury duties and hours and that modifications could be implemented depending on each day, and depending on how active the plaintiff was feeling. He said that the plaintiff would also be able to work in full-time hours in any of the roles identified by Nabenet report and the 130 week Vocational Assessment report.
96Dr Sabetghadam’s subsequent reports dated 6 January 2025 and 14 March 2025, are largely consist of confirmation of the opinions expressed in his initial report.
Professor Littlejohn
97Professor Littlejohn is a Rheumatologist, and in a report dated 18 April 2023, he expressed the opinion that the plaintiff has clinical features of persisting low lumbar pain and dysfunction, without radiculopathy, following a soft tissue injury to his lumbar spine from which he considers the plaintiff continues to suffer and, moreover, that the plaintiff’s medical condition does impact on occupational and daily living activities. He regarded the plaintiff’s clinical presentation to be consistent with the workplace incident.
Michael Dooley
98Mr Dooley, orthopaedic surgeon, provided four reports to the defendant dated 24 October 2023, 22 May 2024, 19 December 2024 and 11 March 2025.[65]
[65] Exhibit D7, DCB 140-155.
99In his report of 24 October 2023, Mr Dooley said that the plaintiff has naturally occurring and age-related degenerative disc change affecting the low lumbar spine, mainly at the L4/5 level. The plaintiff described the onset of low back pain during the course of his work in 2015, while lifting and manoeuvring. He also described the onset of more significant pain in January 2019, after tightening bolts on a mould. Mr Dooley thought that the plaintiff had sustained a soft tissue injury to his lumbar spine that involved some aggravation of underlying degenerative disc change. The plaintiff reported constant ongoing low back pain in time but Mr Dooley said there was no ‘true sciatica’. The plaintiff had undergone a wide range of conservative treatment including spinal injections but no lasting improvement in his symptoms with treatment. He had become relatively inactive. Clinical examination revealed moderate restriction of active range of motion of the lumbar spine. There was no evidence of objective neurological deficit affecting the plaintiff’s lower limbs.
100Mr Dooley noted that in excess of four years had passed since the plaintiff’s work-related episode, and although he accepted that he had sustained a soft tissue injury to his lumbar spine, he considered that the constancy and intensity of the plaintiff’s reported ongoing pain, and his described disability, are greater than one would expect to see for his organic condition. Mr Dooley said he thought that the plaintiff had a psychological reaction to his situation with that reaction influencing the ongoing symptoms.
101Mr Dooley said that from an orthopaedic point of view, the plaintiff should increase his activity in general. He ought to undertake regular low impact exercise. He rejected the notion for ongoing injections as they would not assist the plaintiff and he said that there was no indication to consider surgical intervention in his management.
102Mr Dooley wrote that the incident in March 2015 probably caused the plaintiff’s underlying condition to have heightened effect and may have involved some aggravation of it, but he did not believe that it continues to be a materially contributing factor to his current condition. He said that from an orthopaedic point of view only, the plaintiff has a physical capacity to carry out light physical work and clerical type work. A return to suitable work would need to be on a graduated basis but ultimately, he thinks that the plaintiff would have a physical capacity to increase his hours towards full-time.
103In his report dated 22 May 2024, Mr Dooley wrote that he believed that the plaintiff possessed a physical capacity to carry out all of the proposed suitable employment occupations except for that as a sewing machinist. He reiterated that a return to suitable work should be on a graduated basis, but, in time, over a period of around six months, the plaintiff would be able to work on a full-time basis.
104In his report dated 19 December 2024, Mr Dooley said the plaintiff told him that he had ceased taking Norflex for pain, and that he engages in meditation and takes interest in flower and vegetable pots. The plaintiff said he had completed a business course and had applied for a position as a customer contact officer with NDIS. Mr Dooley thought that all these things had led to an improvement in the plaintiff’s mental health as well as some improvement in his pain.
105Mr Dooley said that no further radiological images had been made available for him to review, however, in documentation provided to him, he understood that the plaintiff had undergone a CT scanning of his lumbar spine in January 2024 which reported some degeneration at the L4/5 level. Mr Dooley otherwise adopted his previously expressed opinions.
106In his fourth and final report dated 11 March 2025, Mr Dooley said that radiological reports that had since been provided to him did not cause him to alter his previously expressed opinions or the answers given by him to the specific questions he had responded to of diagnosis, management, prognosis and/or work capacity. Mr Dooley maintained his view that the radiological reports outline naturally occurring and age-related degenerative disc change affecting the plaintiff’s low lumbar spine area and is not traumatic in nature and has not caused structural change.
Workable Consulting 130 Week Vocational Assessment Report
107I have noted that various medicos in their reporting have referred to a 130 week report dated 17 June 2021 in which the following jobs were identified as proposed suitable employment for the plaintiff:
(a) Product Assembler
(b) Weighbridge Operator
(c) Quality Controller
(d) Car Park Attendant
(e) Ticket Collector
Nabenet Vocational Report
108In a Vocational Assessment Report dated 10 November 2023, and prepared at the request of the defendant’s solicitors, the author reported that taking account of the plaintiff’s physical restrictions, and based on worksite assessments conducted with various employers, that the plaintiff presented with the skills to consider the following roles:
(a) Machine Operator;
(b) Production Team Leader;
(c) Packer;
(d) Sewing Machinist;
(e) Assembler.
Analysis and findings - the claim under paragraph (a)
109The plaintiff experienced injury in his employment in 2015 and from which he was able to return and continue to work although he attended from time to time for treatment on his doctor. He then suffered injury in 2019 from which he managed a return to work on modified duties and for a limited number of hours. The employer subsequently ceased trading. It was put to the plaintiff in cross-examination that had the employer continued operations that he would have expected to increase his hours and return to full time hours and duties. Given the evidence of the plaintiff’s ongoing functional limitations, I do not accept that proposition advanced by the defendant. In cross-examination the plaintiff said that at the time the employer closed down he had been on light duties of “Three or four hours a day every second day; about 12 or 13 hours a week”.[66]
[66]T17, L23-24.
Identification of injury and impaired body function
110On the matter of the identification of work injury, a contest was joined by the parties on the competing medical opinions. The contest is that between a resolved soft tissue injury as the defendant would have it, or a more significant injury, in line with the plaintiff’s medical reporters by way of an aggravation of degenerative changes to the lumbar spine and chronic pain.
111Notably, Professor Bittar maintained a diagnosis of L4/5 intervertebral disc prolapse and aggravation of lumbar spondylosis. Mr Makowski submitted that I should discard Professor Bittar’s opinion because he received an incorrect history that the plaintiff had completed a rehabilitation programme. That incorrect history does not undermine the Professor’s diagnosis. Dr Slesenger in his updated report dated 28 April 2025,[67] said he remained of the opinion that as far as the lumbar spine is concerned, the plaintiff had sustained a soft tissue injury and an aggravation of degenerative disease and chronic lower back pain with left leg radiating features, but no confirmed evidence of radiculopathy.
[67] Exhibit P17, PCB 125-145.
112Mr Chan diagnosed chronic mechanical axial lower back pain without radiculopathy and without claudication. He found underlying L4-L5 and L5-S1 disc desiccation with L4-L5 broad-based disc bulge contacting bilateral traversing L5 nerve roots with a small annular fissure and an L5-S1 broad-based disc bulge without neurocompression with a small annular fissure. The diagnoses that I have referred to, would be consistent with the plaintiff’s account of a history of heavy work.
113Because the defendant medico-legal treaters have assessed and diagnosed the plaintiff’s observable disc degeneration as consistent with age related deterioration rather than a condition accelerated by and/or aggravated by the work the plaintiff performed and the 2019 incident, and a soft tissue injury that should have resolved, it is unsurprising that that their opinions contain scepticism of his account of ongoing pain or of it being disproportionate to such type of an injury. Suffice it to say, I prefer the plaintiff’s reporting and the plaintiff’s medicos injury diagnosis in preference to the defendant’s thesis. The 2015 incident resolved to the extent that the plaintiff was able to execute his work duties and hours but following the 2019 injury he was not. He was thereafter significantly restricted in work and hours and continuous ability to work.
114It was contended for by the defendant that functional or psychological overlays drive the plaintiff’s pain and that I should accept the defendant’s reporters who had said so and that I should not be satisfied that his pain is due to an organic injury to the function of the spine. Because I prefer the opinions on which the plaintiff relies, the contention that the account of pain is due to a functional overlay as opposed to an organic condition is rejected. I regard Professor Bittar’s opinion on diagnosis as the most probable account and explanation.
Is the paragraph (a) injury a serious injury?
115In assessing the plaintiff’s claim under paragraph (a), I have commenced by considering the degree with which I can feel confident about the plaintiff’s evidence. He testified via an interpreter. He acknowledged that he has a working grasp of spoken English and he agreed that he communicated in English at his old job. I accept that his spoken English is functional and sufficient at least to not act as a barrier to suitable employment. However, I do not regard the use of an interpreter was a device but rather was a helpful facility to the taking of his evidence in court.
116The plaintiff was questioned by Mr Makowski whether he had completed certain programmes of rehabilitation and of study to obtain certain qualifications since he stopped work. The plaintiff said he completed the latter, but not the former, and he said that he found that the rehabilitation had not provided him with assistance. Mr Makowski fairly asked the plaintiff why he did not think to compete the program before assessing its efficacy. The plaintiff did not really explain his rush to judgment.
117In the end, I am required to make a value judgment as to whether the impairment consequences are serious, when judged objectively in comparison with other cases in the range of possible impairments or losses. Taking into account all the evidence, I am satisfied that the pain and suffering consequences of the injury to the plaintiff’s lumbar spine from the work claimed injury are at least “very considerable” and certainly more than “significant” or “marked”. I am satisfied that they meet the threshold test for a serious injury under the WIRCA. My reasons follows.
118In Haden Engineering Pty Ltd v McKinnon,[68] Maxwell P set out various principles to which recourse is often had in serious injury applications in an effort to assist in evaluating the “pain and suffering consequences” in a given set of circumstances and these may include:
(a) disturbed or interrupted sleep;
(b) mobility;
(c) cognitive functioning (whether directly because of the pain or indirectly because of the effects of pain-relieving medication);
(d) capacity for self-care and self-management;
(e) performance of household and family duties;
(f) recreational activities;
(g) social activities;
(h) sexual life; and
(i) enjoyment of life.[69]
[68] (2010) 21 VR 1.
[69] Ibid [16].
119Of course, the matters adumbrated in Haden are not prescriptive, and do not intend to define the statutory test under the WIRCA, but they are of assistance in an overall evaluation of the evidence, and also in assessing the plaintiff’s enjoyment of life before injury, and in a consideration of the extent of what has been retained in the wake of and because of the same.
120I accept that the plaintiff has suffered and continues to experience disturbed and interrupted sleep. He candidly accepted that nightmares from his traumatic past interrupt his sleep but that the predominant cause of nighttime disturbance is his lumbar pain. I see no reason to doubt the plaintiff’s veracity.
121I accept that the plaintiff’s mobility has been adversely affected.
122The aggravation of the plaintiff’s lumbar injury and resulting pain has certainly impacted his ability to drive in an unrestricted manner, and for unlimited periods of time, and that is a consequence that was reflected in his oral evidence and one that is consistent with the medical reporting. He also testified to a near miss and avoiding a traffic accident while driving to a doctor’s appointment in October 2023 due to the effect of medication he had taken.
123I accept that the plaintiff’s cognitive functioning has been affected directly because of his pain, and consequentially because of the effects of pain-relieving medication. A number of doctors have spoken of the side effects of the medication as relevant to the plaintiff possessing a realistic prospect of maintaining a consistent and reliable employment in suitable employment. I accept that lethargy is a side effect from medication required by the plaintiff to address his pain.
124I accept that the plaintiff’s injury has affected his capacity for self-care and management, but only to some, and not any great extent.
125The plaintiff’s reduced performance of household tasks was not a matter of consequence of any measurable degree relied upon. He described his domestic living arrangements as residing in a single room of a house occupied by his brother and sister in law.
126The evidence addressed to some extent the plaintiff’s recreational activities and the way in which they have been adversely affected by the injury. The evidence is not that the plaintiff’s sporting or recreational interests were substantial prior to his injury, however, he deposed that he had very much enjoyed playing badminton socially. The defendant suggested to the plaintiff that he had last played before his 2019 injury because the venue he had attended shut down.[70] The plaintiff explained that he stopped playing with his partner who was also Burmese but was not asked, and did not say, that had he retained his playing partner, that he otherwise would have been or could participate in the pursuit.
[70]T45, L1-19.
127The plaintiff appears to have enjoyed gardening prior to injury and it was a pursuit from which he derived enjoyment as was bike riding and walking. He was cross-examined at some length about the extent to which he has resumed gardening, and why he had not thought fit to mention that development in his most recent affidavit, but instead refer to it only by way of further evidence in chief for which leave was granted the commencement of the hearing. There was much back and forth about when the plaintiff resumed gardening and what the plaintiff’s activities comprised. The plaintiff spoke of have purchased potting mix that he transferred from the boot of his car into pots to grow strawberries and lychees. All told, the evidence was fairly insipid in suggesting the plaintiff has a retained or recovered capacity for gardening, and instead it struck me that the extent of the plaintiff’s capacity is very much that of an ability to ‘potter about’.
128All told, I am satisfied that the plaintiff’s enjoyment of life since the injury is greatly diminished. This is not an evaluation I have arrived at so much because the ledger of the plaintiff’s life shows many and varied reductions or losses in his pleasures but more so by reason that what limited enjoyments of life he had before injury have been substantially reduced, and accompanying those reductions, is the constant companion of pain for which medications are required as prescribed and that in turn have their own side effects on the plaintiff’s energy and concentration. I have taken into account that the plaintiff has undergone a significant number of interventions including denervation in an effort to interrupt pain signals along with medial branch blocks but ultimately to no meaningful or lasting beneficial effect. The plaintiff’s loss of the capacity to engage in full time employment is also a matter that properly may be brought into consideration under the claim pursuant to paragraph (a).
129In final address, Mr Makowski enlarged upon a claimed inadequacy in the plaintiff’s claim under paragraph (a) because of the absence of corroboration that he submitted should reasonably have been anticipated as forthcoming from the plaintiff’s brother and or his sister in law with whom he resides. Mr O’Dwyer suggested that there may be countless reasons why neither of them made affidavits. That might be so, but it is the plaintiff who carries the burden to discharge his proof, and he is his only direct witness in his cause as to his daily life and the attendant restrictions and limitations on which he relies. One or other of his brother or sister in law may have been able to speak to such matters. Nonetheless, it is also the case, that a plaintiff seeking relief in an Originating Motion may succeed on a combination of his own evidence and medical evidence. I have been able to arrive at my findings on the existence and seriousness of the consequences of the plaintiff’s injury under paragraph (a) adopting such an approach, and I have not felt a lesser degree of confidence in my conclusion because of an absence of affidavit evidence by the plaintiff’s brother and or sister in law.
130I am satisfied that the prognosis for the plaintiff’s lumbar spine is poor with such interventions as have been carried out, not providing lasting benefit. The need to for surgery, although not yet suggested by anyone, is not entirely a remote risk, according to Professor Bittar. I am satisfied that the injury is stable and is likely to be permanent.
131For the reasons expressed, I am satisfied that the plaintiff is entitled to the grant of a certificate under paragraph (a) in respect of an impaired function to the spine. I am satisfied the aggravating effect to pre-existing his lumbar spine is itself serious. Despite the plaintiff having experienced some previous back pain the evidence is that it did not impede his work or his life in the way that has arisen since the 2019 injury.
The plaintiff’s claim for loss of earning capacity
Without or Pre-Injury Earnings
132Because the plaintiff seeks leave for the grant of a certificate to enable him to sue for pecuniary loss damages resulting from his work injury, I need to be satisfied that he has proved that the consequences of his injury are serious with respect to a loss of earning capacity.
133I am required to determine the pre-injury earning capacity of the plaintiff, calculate the amount that represents 60 per cent of his pre-injury earning capacity and then determine if he has proved that his post-injury earning capacity is no greater than 40 percent of his pre-injury earning capacity. If I am satisfied of the plaintiff’s claim of a permanent loss of earning capacity of 40 per cent or more, then it will follow that he will be entitled to receive leave to bring proceedings for both pain and suffering damages and loss of earning capacity damages because to lose 40 percent of an already reduced work capacity is a consequence that is very considerable.
Pre-Injury Earnings
134When determining pre-injury earning capacity of a non-prescribed worker such as the plaintiff, it is necessary to choose from one of the following four scenarios, as 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; or
(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.
135In the course of final address, Mr Makowski helpfully addressed the matter of the plaintiff’s without injury earnings capacity, and he submitted that the appropriate amount is the sum of $70,508. Mr O’Dwyer did not make a contrary submission, and I have proceeded to a determination of the matter based on that figure. The threshold figure, therefore, is $42,034.80.
Subsections 325(2)(b) and (c) of the WIRCA
136In order to establish an entitlement for leave to commence a proceeding for loss of earnings damages, the plaintiff must first prove that the loss of earning capacity consequences from the compensable injury, when judged by comparison with other cases in the range of possible impairments or losses of a body function, are fairly described as being “more than significant or marked”, and at least “very considerable”, in accordance with the narrative test set out in subsections 325(2)(b) and (c) of the WIRCA.
137I am satisfied that the plaintiff cannot return to his pre-injury work. The inability to return to this type of employment without more obviously limits the job options open to the plaintiff and justify a conclusion of a “very considerable” consequence, such that I am satisfied the narrative test requirement is satisfied. The contest is, therefore, narrowed to whether or not, and to what extent, the plaintiff has a retained capacity for suitable employment.
Subsections 325(2)(e), (f) and (g) of the WIRCA
138Returning to the legal principles, satisfied as I am that the plaintiff has established a “very considerable” loss of earning capacity consequence according to the narrative test, he must next satisfy the statutory formula contained in subsections 325(2)(e), (f) and (g) of the WIRCA , namely, that he has a loss of earning capacity of 40 per cent of gross earnings, measured as set out in section 325(2)(f), and will permanently have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more of his gross earnings, as required by subsection 325(2)(e)(ii).
139Subsection 325(2)(e) of the WIRCA provides:
if a worker relies upon paragraph (a), (b) or (c) of the definition of serious injury in subsection (1), the Authority or self-insurer must not issue a certificate under section 335(2)(c), and a court must not grant leave under section 335(2)(d), on the basis that the worker has established the loss of earning capacity required by paragraph (b) unless the worker establishes in addition to the requirements of paragraph (c) or (d), as the case may be, that—
(i) at the date of a decision under section 335(2)(c) or at the date of the hearing of an application under section 335(2)(d), the worker has a loss of earning capacity of 40 per cent or more, measured (except in the case of a worker referred to in item 1 of Schedule 2 or a worker under the age of 26 years at the date of the injury) as set out in paragraph (f); and
(ii) the worker (including a worker referred to in item 1 of Schedule 2 or a worker under the age of 26 years at the date of the injury) will, after the date of the decision or of the hearing, continue permanently to have a loss of earning capacity which will be productive of financial loss of 40 per cent or more;
140Subsection 325(2)(f) of the WIRCA stipulates:
for the purposes of paragraph (e)(i), a worker's loss of earning capacity is to be measured by comparing—
(i) the worker's gross income from personal exertion (expressed at an annual rate) which the worker is—
(A) earning, whether in suitable employment or not; or
(B) capable of earning in suitable employment—
as at that date, whichever is the greater,
and—
(ii) 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 during that part of the period within 3 years before and 3 years after the injury as most fairly reflects the worker's earning capacity had the injury not occurred;
141To satisfy the statutory formula expressed in subsections 325(2)(e)(i) and (f), the measure of the claimed loss of earning capacity requires a comparison of two matters:
(a) first, the gross income the plaintiff is earning, or is capable of earning, in suitable employment at the date of the decision or of the hearing (“after injury earnings”); and
(b) second, the gross income the plaintiff was earning, or was capable of earning, “during that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity had the injury not occurred” (“without injury earnings”).
142For the purposes of the determination required by subsection 325(2)(e)(i) of the WIRCA, subsection 325(2)(f)(ii) expresses gross income at an annual rate that the worker “was earning” or “was capable of earning” from personal exertion in the past, that is, within three years before, and three years after the injury, that most fairly reflects the worker’s earning capacity had the injury not occurred.
Current Earning Capacity
143Because the plaintiff is not earning, the question that needs to be asked is reduced to, what if at all, the plaintiff is capable of earning in suitable employment. The fact of the plaintiff being unable to return to his pre-injury employment because of the consequences of his organic injury, invites the question what residual work capacity, if any, he possesses. Mr Makowski submitted that the plaintiff possesses a full time post injury earnings capacity in suitable employment. If I was persuaded by Mr Makowski’s submission, then the plaintiff would fail to establish the threshold test of $42,034.80 for pecuniary loss in any of the jobs identified by the defendant and specifically in each of the jobs of:[71]
· Packer
· Machinist
· Product Assembler
· Production Team Leader
· Quality Controller.
[71] This is so whether one adopts the summary wage rates provided by Flexi Personnel or Nabenet.
What is the Plaintiff’s “After Injury” Earning Capacity in “Suitable Employment”?
144The term “suitable employment” is defined by section 3 of the WIRCA as:
suitable employment, in relation to a worker, means employment in work for which the worker is currently suited—
(a) having regard to the following—
(i) the nature of the worker's incapacity and the details provided in medical information including, but not limited to, the certificate of capacity supplied by the worker;
(ii) the nature of the worker's pre-injury employment;
(iii) the worker's age, education, skills and work experience;
(iv) the worker's place of residence;
(v) any plan or document prepared as part of the return to work planning process;
(vi) any occupational rehabilitation services that are being, or have been, provided to or for the worker;
(b) regardless of whether—
(i) the work or the employment is available; or
(ii) the work or the employment is of a type or nature that is generally available in the employment market;
and, for the purposes of Part 4, includes—
(c) employment in respect of which the number of hours each day or week that the worker performs work, or the range of duties the worker performs, is suitably increased in stages in accordance with return to work planning or otherwise; and
(d) employment the worker is undertaking or that is offered to the worker, regardless of whether the work or the employment is of a type or nature that is generally available in the employment market; and
(e) suitable training or vocational re-education provided by the employer, or under arrangements approved by the employer (whether or not the employer also provides employment involving the performance of work duties), but only if the employer pays an appropriate wage or salary to the worker in respect of the time the worker attends suitable training or vocational re-education;
145The application of “suitable employment,” is to be applied objectively and when looking at the worker’s current suitability for work (including alternative work), by reference to the nature of the worker's incapacity and the details provided in medical information and not limited to a certificate of capacity but also by taking into account matters such as age, education, experience and whether the work is a reasonable distance from the plaintiff’s place of residence.
146I have kept in mind that in Barwon Spinners,[72] the Court of Appeal said that the term “suitable employment” looks at the physical capacity of a plaintiff to work, rather than whether, for example, employers, due to risk management concerns, would employ the plaintiff. Also, in addressing broader concepts that might have been thought to be relevant to a determination of suitable employment, in Richter v Driscoll it was said:[73]
Third, we agree with the applicant’s submission that return to work in employment, so understood, requires more than that a physical capacity to engage in a task or tasks. That is because there is more to an ability to work in employment— ‘ability’ being converse of ‘inability’, which appears in the definitions of ‘no current work capacity’ and ‘current work capacity’—than the ability to perform a task that happens to be required in that employment. The definition of ‘suitable employment’, which falls for consideration in the context of ‘no current work capacity’, plainly shows that physical capacity to perform a particular task does not mean that an employment requiring that task thereby becomes suitable employment. If it were otherwise, paragraphs (a)(ii), (iii) and (iv) would have no work to do.
[72][2005] VSCA 33.
[73]Richter v Driscoll [2016] VSCA 142 [76].
147Richter v Driscoll concerned a claim of statutory benefits and a Medical Panel’s reasons, and was not a claim for “serious injury”. However, the Court of Appeal has subsequently affirmed in Dundar v Bas,[74] that while Richter v Driscoll involved a Medical Panel’s reasons, its conclusions about the assessment of work capacity and suitable employment are of general application and are to be applied in all cases.
[74]Dundar v Bas [2019] VSCA 315.
148Therefore, in determining whether the plaintiff has established the requisite loss of earnings, due to his organic impairment, I have approached the matter on the basis of considering his physical incapacity and physical restrictions for work, as well as matters set out in the definition of “suitable employment” including his age, education, skills and work experience in the sense of his capacity for “suitable employment” but not the broader concept of his employability.
149In so far as section 325(g) of the WIRCA requires the Court to consider both the worker’s capacity for “suitable employment” after the injury, and the reasonableness of the worker’s attempts to participate in rehabilitation or retraining, in assessing if a worker has a capacity for any employment, I am satisfied that the plaintiff has tried to obtain further skills and to find employment, however, his efforts have proved futile.
150I regard the plaintiff’s account of his pain and limitations, and his capacity for work, although not determinative on the question before me, to be a relevant part of the overall exercise in assessing his capacity. In his second affidavit, the plaintiff deposed that he did not believe that he could do his pre-injury duties, or any kind of manual work reliably or consistently to which he attributed his regular experience of flare-ups of pain and that he believes that he would struggle to cope with office work due to a difficulty concentrating, and because he cannot sit for extended periods of time.
151Mr Makowski emphasised the fact of the plaintiff having undertaken training and that he proved capable of doing so in terms of a 6 month course of study. The evidence is that the course was conducted online and was at the initiative of Centrelink.
152The course was identified as a business course with a component called ‘Assist with maintaining workplace safety’. The plaintiff said the course ran over 5 or 6 months with material being sent to him in his native Burmese language and he was telephoned once a month by a tutor with whom the plaintiff said he had been able to speak in English.[75] He said he spent a “few hours a week” studying the course material.[76]
[75]T29, L3.
[76]T26, L24-25.
153The plaintiff was also cross-examined about the way in which he had applied for a number of jobs. For example, the plaintiff was directed to an email he sent in October 2023 where he wrote:[77]
'Thank you for your response. I have previous injured and can't do normal jobs. I'm just looking for modified jobs part-time, under 10 to 15 hours a week. I'm really sorry for your time and other hands. I have to fill in job sheet, 12 jobs a month for Centrelink. You might see my application in the future.'
[77]Exhibit D14.
154The job the subject of the email was for the position of a machine operator. The plaintiff said that despite having applied for it and the number of hours sought, that he did so because it was a requirement of his ongoing entitlement to receipt of Centrelink benefits.[78] The plaintiff was also taken to his application for machine operator roles in a supervisory capacity with it being suggested to him by Mr Makowski that this was in line with his experience. Moreover, according to the author of the Nabenet report, he had been offered ‘several supervisory roles’ within a machine operator setting, however, because he disclosed his injury, the offers of employment were apparently rescinded.
[78]T29, L23-24.
155Mr Makowski sought to narrow the focus of the plaintiff’s work capacity by suggesting to him that he presents with a suitability in a ‘supervisor’s role’ in a machine operator setting. The plaintiff agreed with Mr Makowski that he has ‘very good’ experience in machine operation.[79] When asked whether, although bearing in mind he has not undertaken an OH&S course, but that if one was not required for such a job, and if the plaintiff’s former employer had not ceased trading he would have accepted a supervisor job with it if offered, the plaintiff said “yes, of course”.[80] Despite the question asked of the plaintiff being laden with hypotheticals, his answer seems to me very obviously not intended to be so all encompassing in light of his further evidence on the point. The plaintiff said that on the previous occasion he had performed the role of a supervisor when working for Micro Pellet Australia, he needed to lift 25 kilogram bags and he disputed that such role he had performed previously had not involved manual handling. When it was then suggested to him that he could perform the role of a supervisor in a factory that did not require heavy manual handling the plaintiff disputed that he could do so because of his poor concentration and effects of medication.[81]
[79]T33, L25.
[80]T34, L27.
[81]T35, L3-4.
156On the basis that the plaintiff possesses a skill set for a number of the jobs that have been identified by Nabenet, Mr Makowski put to him that he has taken a set against trying to return to any work, or to test his capacity to do so, and he proceeded to suggest to the plaintiff that he could perform a number of the functions attendant a suite of jobs identified as suggested suitable employment.
157The job of Packer was identified as a proposed suitable employment. Mr Makowski told the plaintiff that the job would permit of sitting and standing as required and so be able to accommodate his back pain. The plaintiff agreed but said that he is unable to stand and lift repetitively.[82]
[82]T35, L27-29.
158Mr Makowski questioned the plaintiff about the role of a Light Product Assembler, and which was a type of job the requirements of which the plaintiff said he understood. The constituent features of the role were identified to include the carrying of boxes of parts of less than 5 kilograms and sitting at a desk to perform the assembly of light components and which tasks the plaintiff agreed he could perform.
159Mr Makowski questioned the plaintiff concerning job of a Quality Controller, and suggested to him that it was work he would be able to undertake at full time hours. However, the plaintiff said that having worked in such a role many years previously, he did not think he could undertake it, although he agreed that he knew how to use a data entry program and had done as much with his former employer.[83]
[83]T41, L13-14.
160The plaintiff was questioned about the job of Car Park Attendant, a role described in the defendant 130 Week Vocational Assessment report as sedentary to light. Mr Makowski put to the plaintiff a number of the constituent features of the job that included: answering customer enquiries; accepting money and making change, collecting tickets; directing drivers to parking space bays; keeping watch on vehicles in parking areas; ensuring vehicles display tickets; sitting or standing at sales counters; the need for light stretching and/or twisting movements; bending, squatting, crouching not being significant; and lifting, pulling, carrying not significant. The plaintiff did not agree that this was a light role that he could undertake on a full time basis.
161Mr Makowski questioned the plaintiff as to his capacity to perform the job of a Ticket Collector that was characterized by the reporting author as sedentary to light physical work. Aspects required of the position and put to the plaintiff included the issuing tickets to patrons, accepting payments and making change; keeping a daily balance sheet of cash received and tickets sold; stores – distributing programs, checking tickets; storing clothing, luggage and other articles for patrons and issuing claim checks or tickets for their return. When it was put to the plaintiff that he could discharge such a role on a full-time basis, he said he could not.
Analysis and findings
162I am not persuaded that the fact, for example, that the plaintiff has made many applications for jobs because the receipt by him of Centrelink benefits imposes certain requirements to prove attempts to secure employment, should be interpreted as him possessing a realistic capacity to acquit himself in suitable employment. One proposition put to the plaintiff in cross-examination was that applications for work and the hours he expressed in them was not reflective of the true extent of his retained capacity but rather only expressed hours that would not impact his ongoing receipt of benefits, and that at any rate, by disclosing his impairment injury in each application, he anticipated his candidature for jobs would fail.
163I do not accept that the plaintiff is choosing not to work. I am fortified in my assessment of his genuineness by his efforts in completing the on line business course but that he was able to undertake at his own pace from home. That output and effort is something quite different from the ability to work consistently and reliably in employment. In my judgment, the plaintiff lacks the capacity to earn income from selling his labour because of his incapacity and its limitations on function. I do not think poorly of the plaintiff’s attitude because he disclosed his injury in employment applications required to be pursued as part of his social security entitlements.
164Overall, therefore, I consider that it would be unfair to the plaintiff to treat his applications for work and his completion of the online course of study, as constituting good evidence that he possesses the physical capacity to sell his labour in the open market on a reliable and consistent basis in employment. Moreover, not all of the features of the various proposed suitable employment were put to the plaintiff to comment on. The car park and ticketing roles, for example, require rubbish collection and banking to be undertaken and an adeptness in calculating sums of money. The plaintiff’s physical limitations and pain including flare ups of pain and side effects from medication are all permanent aspects consequential to his work injury I am satisfied that the plaintiff has proved that he has no capacity for suitable employment. I prefer the detailed reasoning expressed in the reporting by Dr Awad.
165I note that Mr Makowski separately submitted that the plaintiff’s claim for economic loss was an ‘all or nothing’ proposition by which he intended to convey that the plaintiff could not succeed and meet the threshold for a loss of earnings claim if, contrary to my findings, I was satisfied he had a work capacity but for something less than full time hours because in the absence of a finding of no capacity for suitable employment, it would be impermissible in the absence of evidence to surmise what residual capacity for hours of work the plaintiff might have.
166Mr O’Dwyer argued that the opposite might apply, and that it is not an ‘all or nothing’ case. As it turns out, that is not a matter I have needed to decide. However, I do note that when the defendant ceased trading the plaintiff had not managed to exceed 12 hours in the work accommodations made by his employer because of his injury. Had the proposed jobs amounted to suitable employment for the plaintiff, then there would have existed a basis to have contended that a retained capacity was no greater than those hours, and which would have in any event, satisfied the threshold for an earning loss claim.
167I am satisfied and find that the plaintiff’s physical impairment is permanent and in consequence of the same that he will continue permanently to have a loss of earning capacity which will be productive of 40 per cent or more as required by subsection 325(2)(e)(ii) of the WIRCA.
168Accordingly, for the reasons given, the plaintiff is entitled to the grant of relief pursuant to paragraph (a), and is entitled to the leave of the Court to commence a proceeding for loss of earning capacity damages.
169I will hear the parties on the form of final orders.
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