McMaster v VWA
[2025] VCC 1345
•18 September 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-24-05985
| NICHOLAS McMASTER | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
---
JUDGE: | Judge Cahill | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 August 2025 | |
DATE OF JUDGMENT: | 18 September 2025 | |
CASE MAY BE CITED AS: | McMaster v VWA | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 1345 | |
REASONS FOR JUDGMENT
---
Subject:WORKPLACE ACCIDENT COMPENSATION
Catchwords: Serious injury – loss of earning capacity – credible plaintiff – limited capacity which meets threshold
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act2013 (Vic)
Cases Cited:Petkovski v Galetti (1994) 1 VR 436; Harris v DJD Earthmoving Pty Ltd [2016] VSCA 188; Barwon Spinners Pty Ltd Podolak [2005] VSCA 33
Judgment: Leave granted to the plaintiff to pursue a common law claim for pain and suffering and pecuniary loss damages
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A.D.B Ingram KC and Mr M.J. Garnham | Maurice Blackburn Lawyers |
| For the Defendant | Mr E. Makowski | Russell Kennedy Lawyers |
HIS HONOUR:
1On 13 March 2019, when the plaintiff was working as a labourer at a commercial building construction site, he injured his left ankle when he stepped out of a boom lift onto rough ground.
2It is accepted it was a workplace injury.
3The plaintiff has applied for serious injury determinations for his injury, being the impairment of the left lower limb, for both pain and suffering and loss of earning capacity[1].
[1] no paragraph (c) is advanced
4The defendant conceded there ought be a determination that the pain and suffering impairment consequences were “more than significant or marked” or at least “very considerable.”
Issues & Contentions
5The issue between the parties is whether a loss of earning determination should be made.
6The parties agree:
(a) the plaintiff is unable to perform his pre-injury duties as a labourer; and
(b) he has some capacity for sedentary light work..
7The extent of plaintiff’s capacity for such work is in dispute.
8Specifically, there is dispute as to:
(a) the quantum of the plaintiff’s before injury weekly earning capacity; and
(b) whether the plaintiff’s after injury earning capacity is no greater than 60% of his before injury earning capacity.
9The plaintiff contends his pre-tax weekly earnings, at the time of the workplace accident, namely $1187.50, most fairly reflect his earning capacity before injury.
10The defendant contends the plaintiff’s gross earnings of $53,000 for the financial year ending 30 June 2022, equivalent to $1019 a week, is the best evidence of the plaintiff’s before injury earning capacity.
11The plaintiff contends he has a work capacity, limited to 12 hours a week, as a service advisor, customer service representative or data entry operator, which would keep him below the earnings threshold.
12The defendant contends the plaintiff has a full-time work capacity as a service advisor, weighbridge operator, customer service representative, data entry operator, retail trade assistant, train driver, pick packer or warehouse assistant which would bring him above the earnings threshold, on either calculation of his before injury earning capacity.
Medical evidence
13In the evening, following the accident, the plaintiff went to the Warragul Hospital emergency department because of pain in his ankle and left foot. He was given analgesia.
14On 23 March 2019 he went to Dandenong Hospital because of continuing pain. An MRI showed a complete rupture of his ATFL and rupture of CFL. Conservative management was recommended.
15On 25 March 2019, the plaintiff commenced physical therapy.
16On 23 April 2019, an orthopaedic surgeon, Prof Tran, examined the plaintiff and recommended conservative treatment. [2]
[2] PCB 40
17Because of continuing pain and mobility problems, the plaintiff sought a second opinion from Dr Keith who performed a lateral ligament reconstruction with internal fixation on 24 January 2020.
18In September 2020[3], Dr Keith referred the plaintiff to a pain specialist, Dr John Monagle, for persisting pain.
[3] PCB 38
19Dr Monagle noted “he plays down his pain scores and calls it a 3/10 when he is walking, but his gait, posture and his response says it is significantly more than that.”[4]
[4] PCB 43
20Dr Monagle diagnosed chronic regional pain syndrome (“CRPS”) of his left ankle following the injury and surgical repair[5].
[5] PCB 58
21Because the plaintiff also presented as depressed, Dr Monagle also started him on an antidepressant and referred him to a psychologist. [6]
[6] PCB 43
22The plaintiff commenced psychological therapy in December 2020[7].
[7] Evergreen Psychology, Ashlee Edwards, PCB 51
23On 15 February 2021 Dr Monagle gave the plaintiff a ketamine infusion to try to treat his chronic pain. Unfortunately, it “was not well tolerated and not helpful”[8] .
[8] Monagle, PCB 58
24Consequent upon the ketamine infusion, the plaintiff reported a significant decline, which included hallucinations and nightmares, in his mental health. A psychologist, Ms Edwards, diagnosed him with major depressive disorder and generalised anxiety disorder. He had counselling to help manage his mood and pain levels.[9]
[9] Edwards, PCB 51
25Dr Monagle then recommended a trial of a spinal cord stimulator for pain relief. [10]
[10] PCB 58
26In June 2021, Dr Timothy Wood agreed the trial of a neurostimulator was an appropriate treatment. In his opinion, the plaintiff’s ability to work was then significantly compromised. [11]
[11] DCB 26
27On 29 July 2021, the plaintiff underwent a trial implantation of a spinal cord stimulator. It gave him some improvement and, in January 2022, a permanent stimulator was implanted in his left buttock. [12]
[12] Kossmann, PCB 81
28On 11 March 2022, the plaintiff returned to Dr Monagle who noted the plaintiff was getting reasonable pain relief from the simulator and his mood and sleeping were much better. He referred the plaintiff to a podiatrist to correct the position of his left foot, which had turned about 60° away from his right foot, giving him a shuffling gait which led to right hip pain. [13]
[13] PCB 44
29On 13 April 2022, the plaintiff told Dr Monagle his pain had stabilised at about 3/10 when resting and worse when moving.
30A podiatrist, Justin Bradley, gave the plaintiff some foot strengthening exercises, raised his left shoe heel and fitted some orthotics to support his left foot. [14]
[14] PCB 55
31On 2 December 2022, because of a flareup in his CRPS symptoms, Dr Monagle re-prescribed painkilling medications and turned up the plaintiff’s stimulator.
32Dr Monagle noted, “Outside of this Nick is travelling well. Married life remains exciting and he continues to look forward to his call-up to the train driver roster for VicRail.” [15]
[15] PCB 49
33On 6 February 2023, Dr Michael Lucas, consultant occupational physician, assessed the plaintiff. In his opinion the plaintiff was then capable of performing duties without “excessive ambulatory/ankle loading exposures”[16] . The plaintiff had told him his “current plan” was to obtain employment as a train driver. [17] Dr Lucas believed the plaintiff could work as a train driver “in the absence of an inherent requirement to undertake excessive ambulatory/track walking duties (such as in the presence of train breakdowns)”[18]
[16] DCB 61
[17] DCB 58
[18] DCB 61
34In May 2023 Dr Wood reviewed the plaintiff.[19] The plaintiff had told Dr Wood he had applied to become a train driver, at the beginning of 2023, and was exploring forklift driver, warehouse operator and truck driver options [20] . Dr Wood believed the plaintiff had capacity to work in those roles. [21]
[19] DCB 44.
[20] DCB 46
[21] DCB 49
35In July 2023, the plaintiff’s treating GP, Dr Kapadia, considered the plaintiff was unfit for his preinjury job but fit to resume non-physical work and recommended reskilling. The plaintiff was then being managed with analgesics and physiotherapy.
36On 18 January 2024, a specialist foot and ankle surgeon, Mr W.H.B. Edwards, examined the plaintiff.[22]
[22] DCB 66
37In his opinion the plaintiff was “greatly disabled” by his CRPS[23] . He believed, because his ability to walk and stand was very limited, the plaintiff was able to do only sedentary work.[24]
[23] DCB 73
[24] ibid
38On 3 December 2024, the plaintiff consulted Dr Kapadia in relation to continuing left ankle pain. The plaintiff told him he wanted to go on to a pension because he could find any light duty work. Dr Kapadia noted his belief the plaintiff has capacity for light duties. [25]
[25] DCB 117
39On 18 December 2024 Thomas Kossmann, orthopaedic surgeon, assessed the plaintiff. He found the plaintiff had restricted movement in his left ankle and was limping.
40He believed the plaintiff was permanently unfit for his preinjury work. In his opinion the plaintiff may have had “a very reduced work capacity for modified/light duties, depending on his pain issues.” [26]
[26] PCB 88
41On 7 January 2025 a psychiatrist, Dr Brendan Hayman, assessed the plaintiff. He diagnosed a mild adjustment disorder with depressed and anxious mood.[27]
[27] PCB 97
42On 16 January 2025 a pain specialist, Dr Clayton Thomas, examined the plaintiff.
43He confirmed the diagnosis of complex regional pain syndrome. He noted the plaintiff’s primary problem to be limited mobility. He also noted the stimulator had allowed the plaintiff to wean off his medication.
44In his opinion the plaintiff could not perform any work that is “beyond very part-time, close to home, sedentary to semi-sedentary with minimal standing and walking”[28]
[28] PCB 104
45An orthopaedic surgeon, Michael Dooley, examined the plaintiff on 18 March 2025. The plaintiff told him he continued to suffer significant pain and disability in his left ankle. In Mr Dooley’s opinion the plaintiff has a capacity for light physical work and clerical type work . He noted, “return to such work would need to be on a graduated basis but, ultimately in time, I believe that Mr McMaster would have the ability to return to full-time work.” He believed the plaintiff had the capacity to work as a workshop administrator, weighbridge operator, customer service representative, data entry operator or retail trade assistant as had been suggested in a vocational assessment.[29]
[29] DCB 81 and 83 – 97
46On 20 May 2025 an occupational physician, Dr Eman Awad, assessed the plaintiff.
47In her opinion the plaintiff is permanently unfit for his pre-injury duties or any duties which “require him to push, pull, lift, carry above 10 kg, prolonged stand, prolonged walk, walk on uneven grounds, kneel, squat, climb, work at heights, run or move at speed” .[30]
[30] PCB 111
48Dr Awad believes, considering, inter-alia, his age, the nature of his injuries, level of education and qualifications and the length of time he has been out of work, the plaintiff has capacity for a sedentary role for 12 hours a week. She believes the plaintiff is unlikely to ever return to full-time employment.[31]
[31] PCB 111
49Specifically, she believes he has capacity for 12 hours work a week as a service advisor/workshop administrator, customer service representative or data entry operator[32] which are sedentary roles.
[32] PCB 112
50She believes the plaintiff does not have capacity for work as a weighbridge operator[33], retail trade assistant[34], pick packer[35], production roles/warehouse assistant[36] or train driver.[37]
[33] because it requires prolonged standing, bending and looking under vehicles and squatting
[34] because it requires lifting and carrying
[35] because it requires prolonged standing, walking and lifting
[36] because it requires lifting and prolonged standing
[37] because he would not pass the requirement to be trackside
Plaintiff’s evidence
51The plaintiff swore three affidavits and gave evidence.
52He is a 36-year-old married man who has a one-year-old daughter.
53He deposed :
(a) he completed year 10 at school;
(b) he then completed an automotive mechanic’s apprenticeship;
(c) he had mechanic’s and labouring jobs until he injured his left ankle;
(d) he suffers constant pain in his left ankle and foot;
(e) he can walk for only about 20 minutes and standing for more than 20 minutes is difficult; [38]
(f) he walks with a limp and has been getting right hip pain;
(g) he gets back soreness at the site of his spinal cord stimulator and cannot kneel or squat properly; and
(h) his driving time, in an automatic vehicle, is limited to about 45 minutes
[38] I note he was seated for an hour in the witness box while he gave evidence
54He also deposed:
(a) he has been unable to work since the accident;
(b) in 2023, he obtained a forklift license and applied to join Metro rail as a train driver but, after a telephone interview, was unsuccessful;
(c) in July 2025 he completed a job seeking course which included preparation of resumes and covering letters;
(d) he has applied unsuccessfully for other jobs including warehouse worker, forklift driver and store manager [39]; and
(e) he is looking to do an online drafting course with a view to working in his family’s structural steel fabrication business, if only on a limited casual basis.
[39] PCB 119 – 139
55In evidence, before me, he said:
(a) he has stopped pain medication and managed the pain by raising the stimulator output;[40]
(b) his ankle pain is manageable so long as he does not do anything silly;[41]
(c) he wants to return to work to support his family;
(d) he believes he has a limited work capacity; and
(e) he got to the interview stage of a train driver application.[42]
[40] T 16
[41] T 17
[42] T 18
56When he was asked about his injury, he was told he was not suitable for the job because the work involved track walking [43] over ballast when the driver needs to get a train which is parked at the depot.[44]
[43] T 20
[44] T 32
57He agreed in December 2024 he told his doctor he wanted to go on to a disability pension because he could not find light duty work.
58He agreed his doctor said he should be able to find work[45] so he tried to look for work.[46]
[45] T 25 – 26
[46] T 26
59He said:
(a) there is no presently suitable role for him in the family steel fabrication business so he is looking at drafting courses, for which he will need some further education before he can apply to do such a course[47] , so he might be able to work from home preparing drawings for the manufacture of parts;
(b) he is getting some help from his brother but had not found the right course yet;[48]
(c) he believed he could do light work, largely seated, so long as he could get up and move around to move his foot;
(d) when he did his recent course he had the computer next to his bed so he could lie on the bed, which is his most comfortable position, and then get up and sit on the chair to use the computer;[49]
(e) he got his forklift license; however, he can only drive a one pedal forklift because he cannot put pressure on his left foot;[50]
(f) he might be able to do service advisor, workshop administrator or data entry type work [51]if the job did not require physical work; however, he could not work for very long because of pain when sitting [52] ; he would need to get up and walk around, or lie down, even better;[53]
(g) he could sit for possibly an hour and ½ but would then need to lie down for half an hour because of pain; [54]
(h) he did not believe he could work as a retail trade assistant because it requires standing and walking and he cannot walk for very long because it hurts; and[55]
(i) His pain is constantly at 4/10 since he stopped the medication. [56]
[47] T 26
[48] T-28
[49] T 29
[50] T 30
[51] T 38
[52] T 36 – 37
[53] T 37
[54] T 38
[55] T 38
[56] T38 – 39
60When asked about his future he said he would like to help in the family business if he is smart enough to do further study. [57]
[57] T 43
61He agreed he could do light physical work so long as it is very limited; he doubted he could return to full-time work.[58]
[58] T 44
62He disagreed he could work as a weighbridge operator because it involves climbing trucks and inspecting trailers.[59]
[59] T 44
63He doubted he could do pick/packing work because of the volume of picking things up and loading them onto pallets.[60]
[60] T 45
64In re-examination he said:
(a) he could sit for an hour to an hour and ½ maybe then, because of pain, he needs to put his foot up or lie down for half an hour;[61]
(b) he gets random flareups of burning pain in toes and leg which can take the pain up to 7/10;[62]
(c) he discloses his ankle condition in job applications and does not receive a reply to most job applications; sometimes he is asked for further details but then gets no follow-up; [63]
(d) he hopes he could do a drafting course to work in the family business, on his computer at home where he would be able to lie down when he needed; and
(e) He thinks he could work for probably an hour and ½ before he would need to lie down to calm his foot down. [64]
[61] T 47 – 48
[62] T 48
[63] T49 – 50
[64] T 51
Defendant’s contentions
65The defendant contended the “most beneficial” measure of the plaintiff’s without injury weekly earnings is $1019 based on his gross earnings for the 2022 financial year. 60% of that figure is $611.
66The defendant contended the plaintiff has failed to prove a permanent loss of earning capacity which produces a financial loss of 40% or more.
67Relying on the opinions of the plaintiff’s general practitioner and physiotherapist, and Dr Wood, Dr Dooley and Dr Lucas, the defendant contends the plaintiff is fit for full-time light physical and clerical work, including service advisor/workshop administrator, weighbridge operator, customer service representative, data entry operator and retail trade assistant with gross weekly earnings ranging from $982-$1886[65].
[65] see "Workable Consulting" vocational assessment DCB 91 – 97
68More, the defendant contends the plaintiff has capacity to work as a Metro train driver earning $2134 a week.
69The defendant contends the plaintiff has demonstrated that capacity by getting to interview stage and I should reject, as a recent invention, his evidence Metro told him, when they interviewed him, he was not suitable for the position because of his injury.
70The defendant also contends I should reject Dr Awad’s opinion the plaintiff has capacity for only limited work, because “it’s not well reasoned”.[66]
[66] T 60
Plaintiff’s contentions
71The plaintiff contends the plaintiff’s weekly pay of $1187.50[67], immediately before his injury, is the best measure of his without injury earnings.
[67] Claim form PCB 115
72The plaintiff contends his long-standing diagnosis of CRPS, the need for surgical intervention and stimulator implant, with his lasting limp, demonstrate the plaintiff has a severe persisting disability.
73The plaintiff contends, because the assessments of Dr Wood and Dr Lucas are dated, their opinions the plaintiff has some capacity for full-time work, should not be accepted.
74The plaintiff contends should reject Dr Dooley’s opinion because it is against the weight of the specialist evidence.
75The plaintiff contends I should accept the opinions of Dr Edwards[68] , because he is a specialist foot and ankle surgeon, and Dr Awad[69], because hers is the only current occupational assessment, and, in relation to both, because Dr Kossmann[70] and Dr Thomas[71] have given similar opinions, namely that the plaintiff has capacity for only part-time, sedentary work.
[68] DCB 72 – 73
[69] PCB 106
[70] PCB 79
[71] PCB 101
76The plaintiff contends these opinions are consistent with his evidence and, in combination, they establish he cannot work full-time and has only limited work capacity which brings him below the earnings threshold.
77The plaintiff contends I should reject Dr Dooley’s opinion because it is against the weight of the evidence.
78I find there is force to the plaintiff’s contentions.
Analysis
79I assess the plaintiff to have been a credible and reliable witness.
80He has a solid work history before the injury. I accept his evidence he is trying to get back to work because of his desire to support his wife and young daughter.
81He suffered an injury which, as the defendant accepted, was serious within the meaning of the Workplace Injury Rehabilitation and Compensation Act 2013 (“WIRCA”).
82He underwent an ankle reconstruction, a failed ketamine infusion and has a permanent spinal cord stimulator implant to manage his chronic pain.
83He is permanently incapacitated for his pre-injury work.
84I accept his evidence:
(a) he applied for a train driver’s position because he likes trains[72] and he had heard Metro looks favourably on applicants with a disability;[73]
(b) he was told he was unsuitable for the position because of the requirement for track walking;
(c) he has applied unsuccessfully for many jobs and is hopeful of reskilling as draftsman with a view to working in the family engineering business where he can work from home at reduced capacity; although the availability of suitable course may be a barrier; and
(d) he has chronic pain, from time to time elevated by random flareups, which severely restricts his capacity to lift items or to stand or sit for any lengthy period without the extended breaks.
[72] T 18
[73] T 33
85In all the circumstances I must consider what work the plaintiff might, in the foreseeable future, be able to do on a regular and consistent basis.[74]
[74] Harris v DJD Earthmoving Pty Ltd [2016] VSCA 188, [49].
86For the reasons the plaintiff advanced, I accept;
(a) Dr Thomas’s opinion, which is supported by Dr Kossmann’s assessment[75], that the plaintiff cannot perform any work that is beyond very part-time, close to home, sedentary and semi sedentary with minimal standing and walking[76]; and
(b) Dr Awad’s opinion the plaintiff has capacity only for 12 hours a week work in the sedentary roles of service advisor/workshop administrator, customer service representative or data entry operator[77]
[75] PCB 88
[76] PCB 104
[77] PCB 112
87As a service advisor his earnings, for 12 hours work, would be $309.64, for customer service, $307.80 and for data entry, $298.44[78].
[78] see "Flexi Personnel" earnings report PCB 116 and 117
88Overall, I am satisfied the plaintiff, regardless of which of the three positions may be suitable, meets the threshold test, whether his without injury earning capacity is $1187.50, as the plaintiff contended, or $1019, as the defendant contended.
89Were it necessary to decide, following the Victorian Court of Appeal’s guidance in Jessop[79] and Yirga-Denbu[80] I would determine his gross weekly earnings, at the time of the accident, of $1187.50,[81] most fairly reflect his before injury earning capacity.
[79] The Herald & Weekly Times Limited and VWA v Jessop [2014] VSCA 292
[80] Yirga-Denbu v VWA (2018) 57 VR 545
[81] stated in the injury claim form PCB 115
Conclusion
90I am satisfied the plaintiff has met the narrative test[82] for serious injury.
[82] WIRCA s 325 (2) (b) and (c)
91I am also satisfied the plaintiff has established he has suffered:
(a) a loss of earning capacity of 40% or more as at the date of the hearing, and
(b) a permanent loss of earning capacity which produces a financial loss of 40% or more. [83]
[83] WIRCA s 325 (2) (e) (i) and (ii)
Disposition
92Accordingly, I grant the plaintiff leave to commence common law proceedings for pain and suffering and loss of earning capacity damages.
93I will make the consequential orders.
0
5
0