Perdikis v Qantas Airways Ltd

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

Serious Injury List

Case No. CI-22-03228

DIMITRA PERDIKIS	Plaintiff
v
QANTAS AIRWAYS LIMITED	Defendant

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JUDGE:	HIS HONOUR JUDGE PURCELL
WHERE HELD:	Melbourne
DATE OF HEARING:	19 June 2023
DATE OF JUDGMENT:	28 June 2023
CASE MAY BE CITED AS:	Perdikis v Qantas Airways Ltd
MEDIUM NEUTRAL CITATION:	[2023] VCC 1076

REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords:               Serious injury – pain and suffering conceded – pecuniary loss
Legislation Cited:      Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:Yirga-Denbu v Victorian WorkCover Authority [2018] VSCA 35
Judgment:                   Leave granted to the plaintiff to commence common law proceedings for pain and suffering and pecuniary loss damages

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A Macnab SC with Ms J Frederico	Zaparas Lawyers Pty Ltd
For the Defendant	Ms S Manova	Hall & Wilcox

HIS HONOUR:

Introduction
1The plaintiff in this proceeding, Ms Dimitra (“Jenny”) Perdikis, could be said to embody the spirit of Australia. Raised and educated in Warrnambool, she moved to Melbourne, married and had two sons. Thereafter, she supported her husband while he undertook work in the mining industry on a fly in-fly out (“FIFO”) basis. Her youngest son has special needs and she ensured that his needs were met, all the while, for some 30 years, maintaining employment for the defendant, Qantas Airways Limited (“Qantas”) at Tullamarine Airport as a customer service agent, baggage services.
2She commenced the job with Qantas in June 1989, when 21 years old, and remained a loyal employee until her employment was terminated in January 2022. For the last 20 years of her employment, she worked a permanent part-time job share role, 40 hours per fortnight, so that she could juggle her career with her family responsibilities.
3On 9 May 2019, the plaintiff was working for Qantas at Tullamarine Airport when she went to sit on a chair but missed her seat and landed heavily on the floor (“the incident”).
4This is a serious injury proceeding. The plaintiff claimed that as a consequence of the incident she had suffered a “serious injury” by way of a physical injury to the spine. Specifically, she claimed to have suffered a coccygeal fracture and aggravation of lumbar spondylosis.
5The proceeding was conducted in the usual way. The plaintiff tendered two affidavits sworn by her and an affidavit from her husband, together with relevant medical reports and documents. The defendant tendered relevant medical reports and documents relied on by it. The plaintiff gave oral evidence. I have considered all of the tendered evidence and transcript of the plaintiff’s oral evidence. In addition, counsel for the defendant provided helpful written submissions, and counsel for the plaintiff provided a summary of calculations. I have considered the written submissions and the summary of calculations. However, in these reasons, I shall only refer to the evidence, transcript and submissions to the extent necessary.

Agreed facts
6The following facts are not in dispute.
7First, there is no dispute that the incident occurred and that the plaintiff suffered injury to her lumbar spine.
8Second, it is agreed that the plaintiff continues to suffer impairment and impairment consequences from the compensable injury to the lumbar spine.[1]
[1]Transcript (“T”) 6, Line (“L”) 18.
9Third, of the plaintiff’s work for the defendant, the parties agreed that it was an administrative job, but that a component of the work involved manually handling luggage.[2]
[2]T 53, L 19-21.
10Fourth, the parties agreed that after the incident and injury, the plaintiff’s duties were modified to eliminate the need for her to do the heavy manual handling, in that someone was allocated to assist with that aspect of the pre-injury work.
11Fifth, the parties agreed that at the time the plaintiff’s employment was terminated by Qantas, that was based on a decision that she was not fit for her full pre-injury duties, that she was unfit for the inherent requirements of her pre-injury role, and there was no other job available for her.[3]
[3]T 53-54.
12Sixth, it is agreed that the plaintiff’s “without injury” earnings are $44,460 gross per annum (a gross weekly figure of $855, 60 per cent of which is $513 gross per week).
13Seventh, the defendant concedes that the plaintiff has suffered a “serious injury” for pain and suffering purposes and is entitled to the leave of the Court to commence a proceeding for pain and suffering damages.

Facts and issues in dispute
14The dispute in this proceeding is the plaintiff’s “after injury” earning capacity.
15First, the defendant does not concede that the plaintiff has suffered a “very considerable” pecuniary disadvantage.[4]
[4]T 58, L 29.
16Second, the defendant contends that the plaintiff has a residual capacity for “suitable employment” such that she does not meet the legal test for pecuniary loss serious injury.

Legal principles
17Before dealing with the relevant evidence, it is convenient to set out the relevant legal principles, which are not in dispute.
18In order to establish an entitlement for leave to commence a proceeding for loss of earnings damages, the plaintiff must first establish 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”, as per the narrative test set out in s325(2)(b) and (c) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”).
19Next, upon establishing “very considerable” loss of earning capacity consequences, if she does, then she must next satisfy the statutory formula contained in s325(2)(e), (f) and (g) of the Act, namely whether she has a loss of earning capacity of 40 per cent or more.
20To satisfy the statutory formula in s325(2)(e)(i) and (f) of the Act, the measure of the claimed loss of earning capacity requires a comparison of two matters:
(a) the gross income the plaintiff is earning, or is capable of earning, in suitable employment at the date of the hearing (“after injury” earnings);
(b) 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).[5]
[5]Yirga-Denbu v Victorian WorkCover Authority [2018] VSCA 35 at [70].
21As mentioned, the parties agreed the “without injury” earnings of $44,460 gross per annum. Sixty per cent is $26,677 gross per annum ($513 gross per week). Therefore, if the plaintiff now has a capacity for suitable employment that will be productive “after injury” of earnings of $26,677 per annum, then she will fail to satisfy the statutory formula.
22Next, upon satisfying the statutory formula, the enquiry moves to s325(2)(e)(ii) and whether the plaintiff has proven a loss of earning capacity that will permanently be productive of financial loss of 40 per cent or more.
23The issue to be resolved in this proceeding is a factual dispute as to the plaintiff’s “after injury” earning capacity. The starting point is the nature of the plaintiff’s injury, the treatment she has received, and her attempts to return to work. It is also necessary to consider the evidence of her impairment and impairment consequences, and whether that evidence is reliable and accepted.
24On that note, before moving to consider her evidence, it is convenient to say a few words about the plaintiff and her credit. That is because, as has been said many times in these types of proceedings, in assessing the “seriousness” of an injury, the credit of the plaintiff is of critical importance.
25This is not a proceeding in which the defendant directly attacked the plaintiff’s credit. She impressed me as a thoroughly decent, hardworking and stoic person. Despite no direct credit attack on the plaintiff, the defendant submitted that the plaintiff’s evidence – to which I shall turn in a moment – about why she could not use a sit and stand desk to work part-time after injury was “unconvincing”, which is akin to suggesting that her evidence was unreliable.
26Contrary to the submissions of the defendant, I found the plaintiff’s evidence to be convincing and broadly consistent with the objective evidence. I am satisfied that this is a proceeding in which I can rely upon the affidavit and oral evidence of the plaintiff.

The plaintiff’s evidence
27The plaintiff swore affidavits on 30 March 2022[6] and 15 June 2023.[7] In addition, she relied upon an affidavit in support from her husband, Theo Perdikis, sworn 15 June 2023.[8]
[6]Plaintiff’s Amended Court Book (“PCB”) 15.
[7]PCB 25.
[8]PCB 32.
28In her first affidavit, the plaintiff set out her work history with the defendant, the incident and the treatment thereafter. In particular, she described a referral to the pain specialist, Dr Dan Bates, of Metro Pain Group in August 2020 and then, over an approximate 12-month period, a process of three injections and procedures that he performed on her lumbar spine. She described the use of ongoing medication, including an opioid-based analgesic, Tapentadol, as necessary, but usually a few times a week.[9]
[9]PCB 19, paragraph 22(d).
29The plaintiff then set out the symptoms and consequences of her injury. She was broadly challenged about that evidence in cross-examination, but not in a way to suggest that I should not accept her evidence of ongoing low back pain and symptoms into her left leg.
30Specifically regarding a return to work, in her first affidavit she said:
“42.As a consequence of my injury, I have lost a job that I had for over 30 years. I felt that this job was part of my identity. I enjoyed my job. I had social networks at work. I am devastated about having lost my job.

Rehabilitation, retraining and return to work
43.Since I injured myself, I have been unable to return to my pre-injury duties as a Customer Service Agent, Baggage Services.
44.I did try and return to modified duties. I struggled during this period. I work a reasonable drive away from work and found the drive difficult. It exacerbated my pain. I struggled with working an 8-hour shift but was able to get through the day as I had the flexibility to work at my own pace and sit and stand as I needed to. I found myself experiencing gradually increasing pain throughout the shift. I was keen to keep my job.
45.My employment has now been terminated because of my injuries and my incapacity to return to my old job.
46.I have undertaken a short basic computer course. I have participated with an occupational rehabilitation provider to try to get back to work. This has been unsuccessful.
47.I am not sure what I will do now. I intended to continue to work with the defendant until retirement age. I am now limited in how far I can drive without flaring up my symptoms. I would struggle to do a job that involved manual handling or lifting. I would struggle to do a job that required me to be on my feet or that required me to sit for long periods. I would struggle to be under time pressure and work at an employer's deadlines. I would struggle to work a full day. I am not sure what I can do now.”[10]
[10]PCB 23-24, paragraphs 42-47.

31In her further affidavit, the plaintiff described her ongoing symptoms. She described how she always had pain in her low back, like a dull ache which increases if she did too much. She described pain radiating into both of her legs the majority of the time, and some pins and needles and numbness in her legs the majority of the time. She said she found it difficult to sit for long periods, stand for long periods, bend over on a repetitive basis, and of struggling to lift heavy weights. She described interference in her day to day activities, housework and the like.
32Regarding her job and her current work capacity, the plaintiff said in her second affidavit that:
“21.My mood has been affected. I feel hopeless, helpless and depressed. I am in constant pain and it gets me down. I feel frustrated that I am not able to do what I used to do. I really miss my work. I was with Qantas for 33 years. I loved my job. It was my life and it was my future. It was devastating to lose my job. Since my weekly payments have ceased, I have lost my independence. My future is uncertain. I am upset that I have not lost more weight as a result of the gastric sleeve. It was a very big decision to have this surgery and it has not improved my back pain. It makes me feel like a failure.
22.I do not know what work I could do. I was with Qantas for 33 years. There are other jobs at Qantas such as working at a service desk or in the Qantas Club or on the ticket counter and Qantas did not want me because of my back injury.
23.I am now nearly 56 years of age. I feel that I am discriminated against because of my age.
24.My computer skills are limited. I am only familiar with the Qantas system. I have no Word or Excel skills. My experience in the workforce is very limited as I worked with Qantas for 33 years.
25.I struggle to sit for long periods, stand for long periods, bend over on a repetitive basis and struggle to lift any heavy weights. I struggle to walk long distances or drive long distances. I do not know what sort of work I could perform on a consistent and reliable basis. When I am sitting for a while, say at a restaurant or in a cinema, say for 2 hours, I need to take Tapentadol to manage my pain.
26.I do not believe I could manage sitting and standing as I would do with a sit/stand desk. I need to lie down to manage my pain. Getting up and down in the one spot would aggravate my pain. I need to constantly move.
27.The following roles have been suggested but I do not believe that they are suitable:
·Concierge — I am not able to sit or stand for long periods of time. I would not be able to cope with the requirements for computer skills.
·Showroom consultant — I would not be able to perform this role. It involves physical work including rearranging displays and lifting and bending.
·Customer service representative — I lack the necessary computer skills. I would not be able to sit or stand for long periods, I would not be able to do presentations, I have no skills in presenting.
·Receptionist — I do not believe I would be able to sit for the long periods of time required and I lack the necessary computer skills.
·Administration assistant — I do not believe that I would be able to sit for long periods of time and I lack the necessary computer skills.

28.When I was receiving rehabilitation assistance, I was recommended jobs which I could not contemplate, for example, as a guest service agent at Hayman Island. This was also when I was still trying to keep my job at Qantas.
29.Presently, I drive my son, Harry, to his day program in the mornings. Harry has NDIS funding for this. However, it helps me feel useful. When I get home after driving him, I have increased back pain due to sitting in one position in the car. I need to lie down to rest.
30.If I was to return to work, I would be able to put in caring arrangements for my son Harry to get to his day program.[11]”
[11]PCB 29-31, paragraphs 21-30.

33Theo Perdikis broadly described his observation of the plaintiff’s restrictions. He described how the plaintiff loved her work at Qantas and was a proud employee. He described how it is now more difficult for the plaintiff to care for their son. He said:
“It is a great loss for Jenny to no longer be working at Qantas. She worked there for 32 years. She was very disappointed to lose her job. She was proud wearing her uniform to work. She was very sad when she had to return her uniform. I believe she is still grieving the loss of job. The job gave her a real sense of identity. This was important to her as the primary carer of our son.[12]”
[12]PCB 34, paragraph 12.

The plaintiff’s oral evidence
34Consistent with the concession that the plaintiff had a “serious injury” for pain and suffering purposes, the cross-examination focused on the plaintiff’s pre and post-injury work and work capacity. There was a particular focus on an IPAR Vocational Assessment Report dated 11 May 2023,[13] and of Nabenet Return to Work Job Seeking Reports dated 3 December 2021, 27 January 2022 and 25 March 2022,[14] that were prepared when the plaintiff was referred by Qantas for job seeking assistance at a time when it was considering the termination of her employment.
[13]Defendant’s Amended Court Book (“DCB”) 86.
[14]DCB 134-148.
35The plaintiff agreed that she was initially away from work for about three months or so, that pre-injury she was in a customer service job but that it did involve some handling of heavy luggage from time to time. She described the administrative nature of that work. She worked 20 hours a week, that was permanent part-time, having resumed work after her sons were born and balancing family and other personal responsibilities.
36The plaintiff said she thought that after the incident she returned to her pre-injury hours by January 2020, and did that through until March 2020, when COVID hit.[15] She was then stood down due to the significant restrictions on travel, before returning to work again in July 2021.
[15]T 10, L 19-22.
37It was put to her that in July 2021 she returned to work for 20 hours a week until she was again stood down. She disagreed and said “It was just twice a week, four hours”.[16] She said she was stood down again in August 2021. There was then the decision by Qantas in January 2022 to formally terminate her employment, but she accepted that her personal preference would have been to continue working with Qantas.[17] She found it very hard to accept, and was very angry that Qantas let her go.[18] She agreed that after she lost the job at Qantas, she felt that she really was not in a position to be looking for other work, but said that was also as well as her back pain.[19]
[16]T 11, L 3-4.
[17]T 11, L 30.
[18]T 12, L 1.
[19]T 12, L 17-24.
38In terms of her back pain, the plaintiff agreed that the intensity of her pain reduced with the passage of time after the incident. She said she was still walking on a daily basis. She accepted that sometimes the pain is unpleasant, and other times it is very low level. When asked whether she had days when her back feels okay, she said “No”.[20] She accepted that, in terms of leg pain, it is sometimes there and sometimes not.[21]
[20]T 13, L 13.
[21]T 13, L 16.
39The plaintiff described her reluctance to take an opioid painkiller.
40She then described her tolerances. She said she could walk for probably 20 minutes,[22] but accepted that it could vary between 20 and 30. She said she could stand comfortably for probably 15-20 minutes and sitting about 15-30 minutes before she would feel like a need to stand and change her posture.[23]

[22]T 13, L 30.
[23]T 14, L 4-9.
41The plaintiff was cross-examined about meeting with Ms Chloe Mutimer, who is the author of the IPAR report. She saw Ms Mutimer on 2 May 2023. She was cross-examined about Ms Mutimer’s observation that the plaintiff stood up after 40 minutes to stretch and said “No, I was still in pain even though I didn’t get up”.[24]
[24]T 15, L 9-10.
42She was next cross-examined about a medico-legal examination with Dr Caroline Tan, neurosurgeon, in April 2023, and the doctor’s observation that she “sat continuously for at least two hours. However, she was observed to fidget in the chair”. The plaintiff said she did not recall that, but agreed that from time to time she can sit for in excess of 30 minutes.[25]
[25]T 16, L 12.
43The plaintiff agreed that the sensible thing for her to do to avoid aggravating her back pain was to sit and stand. That led to cross-examination about a potential return to work in an office environment with a sit and stand desk, or some flexibility to change her posture. It was put squarely to her that she can do an office job “after injury’, as long as she can change her posture, but she disagreed with that.[26]
[26]T 17, L 2.
44It was put to her that she could undertake office work if the role did not involve any heavy lifting and with the flexibility to change her posture. She said:
“No, I – I couldn't do that job because it would – because of my pain in my back. I wouldn't be able to sit a whole shift doing that kind of job.
But again, you're going back to the explanation that you can't sit for a whole shift?---Yes.
But what I'm suggesting to you is that there are jobs that have been identified that I will take you to in a minute – but those jobs can facilitate you sitting and standing as you need to. So you won't be required to sit for a whole shift. Do you understand that?---Yes, but – I do understand, yes.
What is the but, just so that His Honour can understand? Why do you say that even with those modifications or steps taken to accommodate you, you wouldn't be able to do an office job?---Because I – I'd probably need to rest or lie down between – that's what I do now at home. The pain is consistent.
You say, I think in your affidavit, that you lie down a couple of times a day?---Yes.
Is that right?---Yes.
When you were working on your modified duties with Qantas, prior to the first lockdown, prior to when COVID hit, and you were back at 20 hours a week – were you lying down at Qantas?---No, but I had the option to go into the back office and sit in a more comfortable chair.
So Qantas accommodated you by ensuring you could take a break if you needed to. But it didn't provide you with a facility for you to lie down during your shift, and you were able to work for the 20 hours until unfortunately COVID put you out of a job?---Correct. But I was in a lot of pain when I was doing that shift. It was - - -.”[27]
[27]T 17, L 25 – T 18, L 25.
45The plaintiff was then cross-examined about the care that she provides to her son. She was cross-examined about the relationship with her in-laws, who live next door. She accepted that she provided some assistance to them. She accepted that her youngest son had fairly significant special needs. She described the assistance from the NDIS. She conceded that she felt the weight of her family responsibilities.[28]
[28]T 21, L 7.
46It was suggested to her that those family responsibilities were a factor in whether or not she was going to push herself to get back into the workforce. She said “No”.[29]
[29]T 21, L 10.
47The plaintiff was then asked about her computer skills and the data entry aspect of her job at Qantas. She gave evidence about undergoing some retraining through basic computer courses. She gave evidence about her knowledge, or lack of knowledge, of various computer programs such as Word or Microsoft Office.
48About retraining, she was asked whether, if she was given an opportunity to undertake a more comprehensive computer course, there would be no intellectual reason she could not do that, and she said “Yes, I could that”.[30] She accepted that in a new office environment she would be able to cope with some on-the-job training.[31] She accepted that her current limited ability to use some Microsoft Office programs of itself is not a bar to undertaking office work.
[30]T 23, L 25.
[31]T 23, L 31.
49She was cross-examined specifically about jobs identified in the IPAR report. The impression from her evidence was that she accepted she would currently have the intellectual capacity, or the capacity to acquire the necessary skills, for those jobs, but that it was her physical symptoms that would prevent her from returning to work.
50The plaintiff was cross-examined about her husband’s level of earnings. It was put to her that he was a particularly high earner, having earned in excess of $350,000 in the last tax year. She explained that his job had changed and that level of earnings had dropped down to a degree, but he was still doing the same type of FIFO work. He worked three weeks away and two weeks at home. The very high earnings had been achieved during COVID when he was working overseas for three months at a time. The suggestion in the cross-examination was that there was little financial imperative for her to attempt a return to work “after injury”.
51Dovetailing on that were questions about the loss that she felt and how disappointed she was when she lost the job with Qantas.[32] She agreed it was psychologically a big step to try and reinvent herself and get some work now. She agreed her sense of identity had been taken away from her.[33]
[32]T 33, L 19-31.
[33]T 34, L 18.
52She then gave impressive evidence about how “before injury” she would arrange her shifts so that she could work and be available to care for her son.
53The plaintiff was then cross-examined about what she told a psychologist about considering some form of volunteering “after injury”. She was cross-examined about whether she had put on hold any attempts for volunteer work, or retraining, or looking for work, because she had this case coming up, and she disagreed.[34]
[34]T 37, L 3.
54In re-examination, she was asked what was stopping her from working now, and she said “[m]y chronic back pain”.[35] She said that if she did not have her chronic back pain now, she would be working. She described how she loved her job at Qantas. She loved helping people and the identity of working for a prestigious airline. She said the work was vital because “I had to have a break from my personal life, and go and just be a Qantas employee”.[36]
[35]T 41, L 18-19.
[36]T 42, L 23-25.
55She was asked questions about her work capability “after injury”, and said that her back pain would not allow her to do a sitting job. She was asked how she would go if the job required her to predominantly sit, and she said “I couldn’t cope, I would have to have breaks, and I wouldn’t cope. It would be too long, four hours”.[37]
[37]T 43, L 17-19.
56She was re-examined about jobs involving a sit/stand desk. She said that she could not do a job, even with such a desk, because “hours would be too long, and it’s not just sitting and standing. I’d have to move around, I’d have to lie down”.[38]
[38]T 43, L 26-28.
57When asked whether she could do, say, four hours on alternate days, she said “No, I couldn’t do that either … The back pain, the uncomfortableness, the commitment to committing to a job three days a week. No flexibility”.[39]
[39]T 44, L 2-7.
58The plaintiff next said that her back symptoms were unpredictable and each day was different. She gave evidence about needing to lie down at home during the course of the day. She said she would not cope if any further job training required her to sit for lengthy periods at a computer “because sitting for too long would hurt my back”.[40]
[40]T 44, L 30.
59She gave evidence about her return to work in January 2020 at her pre-injury 20 hours per week. Of that work, she said:
“I found it very hard. The drive was difficult. Um, standing on the hard concrete floors was very difficult. There as [sic] a lot of walking. Yeah, it was tiring. And by the end of the shift by the time I'd driven home I'd have to take a strong tablet because of the pain.
What sort of medication would you take when you got home?---Usually after a day of work was Tapentadol.”[41]
[41]T 45, L 6-13.
60She said she did not do consecutive days on her return to work with Qantas, and she did not now think she had the capacity to do consecutive days “because I needed to recover from the working day”.[42]
[42]T 45, L 26.

The medical evidence
The plaintiff’s medical evidence – treaters
Dr George Stabelos
61Dr George Stabelos is the plaintiff’s long-term treating general practitioner, having first attended her on 7 November 2013. In respect to the incident, the plaintiff first attended Dr Stabelos on 11 May 2019. In a report dated 16 March 2023,[43] Dr Stabelos then set out the history of the plaintiff’s presentation, examination findings, symptoms and his conclusions.
[43]PCB 51.
62In his report, Dr Stabelos described his clinical impression as the plaintiff having an initial sacrococcygeal fracture and exacerbation and acceleration of pre-existing disc degenerative changes in the low back, including that of disc herniation with radiculopathy and neuropathic pain.[44] He described the management by him to include analgesic, referral for physical therapy and referral for pain management opinion and injections with Dr Bates. He also described other specialist referrals.
[44]PCB 54.
63He said that whilst the plaintiff had some improvement from the initial fracture, there were ongoing symptoms of sacral and coccygeal pain. In respect to various questions about work capacity, he said the plaintiff was not able to undertake her pre-injury duties in an unrestricted manner.[45]
[45]PCB 55.
64He then said in considering her physical and psychiatric injuries, whether the plaintiff had a realistic capacity for work, that:
“The patient has a realistic capacity for some aspect of part-time modified duties. However the concern is that prolonged sitting, standing and any form of posturally demanding activities such as bending or lifting exacerbates her symptoms. Consequently, it may be difficult for the patient to undertake any form of full time work and other forms of duties would need to be on a part-time and flexible arrangement.”[46]
[46]Ibid.
65Dr Stabelos then said that his impression was that the incapacity was likely to continue for the foreseeable future, especially “given the fact that the work related accident has resulted in exacerbation of underlying degenerative osteoarthritic changes”.[47]
[47]Ibid.
66Dr Stabelos also discussed the plaintiff’s presentation with urinary symptoms and described the exact origin of those symptoms as unclear, but did not exclude the compensable injury as a cause. The plaintiff does not press her urinary symptoms as a consequence of the compensable injury, consistent with the opinion from a urologist, Dr George Koufogiannis, dated 16 January 2023.[48]
[48]PCB 45.
Mr Jeremy Tan
67Jeremy Tan is a physiotherapist at Waverley Park Physiotherapy Centre who treated the plaintiff. Mr Tan provided a report dated 12 April 2023.[49] To describe it as a brief report would be generous. It confirmed the plaintiff attended for physiotherapy between May 2019 and April 2021.
[49]PCB 57.
Dr Dan Bates
68Dr Dan Bates is a sports and exercise physician to whom the plaintiff was referred by Dr Stabelos for pain management. Dr Bates provided a report dated 5 May 2023.[50] In that report, he detailed the presentation to him, examination findings and his conclusions based on his treatment of the plaintiff up to a review on 11 April 2023.
[50]PCB 59.
69Dr Bates diagnosed a sacral fracture and sacroiliac joint pain and dysfunction related to the incident. He said the plaintiff had ongoing pain across her lower back/buttock, and that he did not believe she had a realistic capacity to undertake her pre-injury duties in baggage handling in an unrestricted manner.[51]
[51]PCB 62.
70Dr Bates was then asked about whether the plaintiff had a realistic capacity for work in the open labour market. He responded by saying:
“Ms perdikis has ongoing pain accross her lower back/buttock. I do not believe she has a realistic capacity fro work in the open labour market” [sic][52]
[52]PCB 63.
71Dr Bates said the plaintiff’s incapacity was likely to continue for the foreseeable future.
Dr Alex Adamides
72Mr Alex Adamides is a neurosurgeon to whom the plaintiff was referred by Dr Stabelos. He attended the plaintiff on 23 May 2019. In a report dated 31 May 2023,[53] Mr Adamides then set out his examination findings, review appointments and conclusions based on his last teleconference with the plaintiff on 6 August 2020. He said that, based on the last attendance, his recommendation was a referral to a chronic pain specialist for further management and continuing conservative treatment.[54]
[53]PCB 64.
[54]PCB 65.
Dr Joyce Lee
73Dr Joyce Lee is a clinical and forensic psychologist to whom the plaintiff was referred for treatment. Dr Lee provided a report dated 28 February 2023.[55] That report provides evidence of the plaintiff’s psychological reaction to the injury to her low back, noting that she does not claim to have suffered a “serious injury” based on any psychiatric reaction. The report is otherwise of little assistance, and Dr Lee notes that she could not comment on the plaintiff’s capacity for work as she does not conduct specialised vocational assessments.[56]
The plaintiff’s medico-legal material
[55]PCB 47.
[56]PCB 49.
Mr Raf Asaid
74Mr Raf Asaid is an orthopaedic surgeon who assessed the plaintiff on 28 March 2023 and provided a report.[57] Mr Asaid set out in his report the history of presenting complaint, current symptoms, his consideration of investigations, physical examination and his opinion in response to specific questions.
[57]PCB 68.
75Mr Asaid diagnosed a coccygeal fracture and aggravation of lumbar spondylosis. He said the plaintiff would be likely restricted in relation to activities involving bending, twisting, lifting, pushing and pulling, as well as standing and sitting for extended periods, and that those restrictions were likely to last for the foreseeable future.[58]
[58]PCB 72.
76Mr Asaid was then asked whether the plaintiff had a capacity for her unrestricted pre-injury duties which he answered as follows:
“Ms. Perdikis was previously employed as a customer service agent with Qantas. She reports that her primary responsibility was within the baggage services department, where she frequently lifted between 20 to 50 suitcases per day, and loaded and unloaded them off luggage carousels. She also reported that her role was at times physically demanding and labour intensive. Given the nature of her pre-injury injury role, as well as her current described levels of pain and physical restrictions, I do not believe that she has the capacity for unrestricted pre-injury duties. This is likely to persist for the foreseeable future.”[59]
[59]Ibid.
77Mr Asaid was then asked questions about employment options in the Nabenet material, which he answered as follows:
“6. Taking into account the back injury, whether our client has a capacity to perform the following employment options as listed in the Defendant’s Nabenet Vocational Assessment Report dated 15 September 2021, noting her age, education, skills, work experience, and any restrictions identified in point (3) and your opinion in point (4) above:
• Concierge
• Showroom Consultant
• Customer Service Representative
• Receptionist
• Administration Assistant
This question is best put to an Occupational Physician.
7. If you are of the view that our client has a capacity for any of the employment options listed above, what is the maximum number of hours per week our is client able to work in such employment on a permanent, reliable, sustained and consistent basis and without the risk of re-injury – also noting the factors listed in point (3) and (4) above;
Please see my response to question 6.”[60]
[60]PCB 73.
Dr Kilner Brasier
78Dr Kilner Brasier is an occupational and environmental specialist physician who examined the plaintiff on 20 April 2023 at the request of her solicitors and provided a report dated 12 June 2023.[61]
[61]PCB 103.
79Dr Brasier obtained a history of the injury and the plaintiff’s progress post-injury, as well as her relevant personal history. Dr Brasier conducted an examination and concluded the plaintiff was a good historian. Lumbar spine movements were restricted globally, particularly for extension. Dr Brasier then reviewed various investigations and, in respect to diagnosis, said the plaintiff had suffered a fracture of the coccyx that had subsequently healed, but that it had led to mechanical low back pain associated with chronic lumbar spondylosis and sacroiliitis.[62]
[62]PCB 107.
80Dr Brasier then said the plaintiff had no capacity for unrestricted pre-injury duties and that incapacity was likely to persist into the foreseeable future.[63]
[63]PCB 108.
81Dr Brasier was then asked questions about work capacity and job options as follows:
“6. Taking into account the back injury, whether our client has a capacity to perform the following employment options as listed in the Defendant’s Nabenet Vocational Assessment Report dated 15 September 2021, noting her age, education, skills, work experience, and any restrictions identified in point (3) and your opinion in point (4) above:
• Concierge
• Showroom Consultant
• Customer Service Representative
• Receptionist
• Administration Assistant
Taking into account Ms Perdikis’ lumbar spine injury/condition, her age, education, skills, knowledge and work experience and her limitations/restrictions she would in my opinion be unable to work full-time in the abovementioned occupational roles. However it is my opinion that she has a work capacity for part-time work provided her limitations/restrictions can be catered, that she is able to self-pace, regularly alter posture and particularly avoid prolonged sitting.
7. If you are of the view that our client has a capacity for any of the employment options listed above, what is the maximum number of hours per week our is [sic] client able to work in such employment on a permanent, reliable, sustained and consistent basis and without the risk of re-injury – also noting the factors listed in point (3) and (4) above.
In my opinion Ms Perdikis has a work capacity within the restrictions I have outlined for a maximum number of 12 hours per week preferably non-consecutive days without a risk of re-injury.
8. Whether as a consequence of our client’s injury, and excluding any other physical conditions and/or any psychiatric condition, our client is likely to be precluded or restricted in relation to social, domestic and/ or recreational activities, and if so:
• The specific activities;
• The extent of the incapacity; and,
• Whether the incapacity will continue for the foreseeable future;
Please refer to the body of my report. In my opinion these restrictions I have referred to will continue for the foreseeable future.”[64]

[64]PCB 108.
Flexi Personnel
82The plaintiff tendered into evidence a report from Flexi Personnel dated 15 June 2023.    It is described as an earnings report prepared by Ms Sue Webster, whose expertise is as a human resources consultant. The report provides evidence of gross hourly rates for various employments obtained pursuant to various awards. I shall return to the Flexi Personnel report in due course.
The defendant’s medico-legal evidence
Dr Timothy Wood
83Dr Timothy Wood is a sports and exercise medicine physician who examined the plaintiff on 20 December 2021 and provided a report.[65] He obtained a history of the incident, symptoms, treatment and the like. He said the plaintiff had persisting pain affecting her coccyx and surrounding areas.[66] He said her ongoing symptoms and restrictions were consistent with his diagnosis, and there was no exaggeration of restrictions or symptoms.
[65]DCB 10.
[66]DCB 15.
84Dr Wood then said the plaintiff was unable to complete her normal pre-injury duties. He noted she had been capable of her pre-injury hours in early 2020 with restrictions. He said he thought the main barrier to returning to work was the available suitable, modified or alternative employment.[67] He then said:
“From a physical perspective, in my opinion Ms Perdikis can return to modified preinjury duties and hours in customer service with a lifting restriction of up to 20kg on a non-repetitive basis. She can alternate between sitting and standing. If this return to work does not proceed smoothly over a 2-3 month period, then alternative duties in the Qantas Club or another customer service area which do not require excessive repetitive lifting or regular pushing passengers in wheelchairs should be arranged.”[68]
[67]DCB 17.
[68]Ibid.
85Dr Wood said the plaintiff did have a capacity for suitable employment. He was asked about the Nabenet jobs and said as follows:
“Nabenet identified the following potential suitable employment options.
·    Concierge
·    Show room consultant
·    Customer service representative
·    Receptionist
·    Administration assistance.
In my opinion all these roles have similar physical demands to the current customer service role that Ms Perdikis is employed in with Qantas. The role of an administration assistant may involve more sitting.
Therefore, in my opinion Ms Perdikis is suitable for all these roles depending on the demands of the administration role.
However, the best form of employment will be for Ms Perdikis to continue with Qantas as discussed above.”[69]
[69]DCB 10.

Dr Caroline Tan
86Dr Caroline Tan is a neurosurgeon who examined the plaintiff on 30 March 2023 at the request of the defendant and provided a report dated 15 April 2023.[70] Like the other doctors, Dr Tan also obtained a history from the plaintiff, reviewed various diagnostic investigations and answered questions.
[70]DCB 44.
87Dr Tan said that she did not observe any deliberate exaggeration of symptoms and restrictions during her time with the plaintiff, but said:
“Ms Perdikis’ chronic symptoms likely include a major component of somatic pain arising from degenerative disease of the lower lumbar spine and sacroiliac joints, with concomitant central sensitization. This is probably compounded by a milieu of significant psychosocial factors including anxiety, depression and low self-esteem.”[71]
[71]DCB 49.
88Dr Tan was asked a question whether employment continued to materially contribute to the claimed compensable low back injury, which she answered as follows:
“a) What evidence is there;
There is clinical evidence in terms of the episode of lower back/sacral pain in 2014 for which she sought physical therapy from April to July 2014. There is radiological evidence because there were well-established degenerative changes on the very first lumbar spine MRI conducted on 28 May 2019, which would have taken many years to develop.
b) Please provide your opinion regarding the natural course of the Plaintiff's pre-existing condition without the effects of the particular incident on 9 May 2019;
The natural history of degenerative spinal disease is one of inexorable but slow deterioration. In the absence of the work incident on 9 May 2019, I would have anticipated that she would have experienced further episodes of low back pain necessitating physical therapy. However, if not for the work incident, she would probably still be working now, as she had done for the 20 or so years prior to May 2019.
and
c) Did the alleged injury on 9 May 2019 aggravate a pre-existing condition? Please explain your answer.
Yes, I believe that it did. As I have said above, were it not for the work incident on 9 may 2019, I would not expect that she would have stopped working in 2021 due to intractable pain.
d) If yes, was the incident on 9 May 2019 a significant contributing factor?
The incident on 9 May 2019 was a significant contributing factor.
e) Does employment continue to materially contribute to the claimed injury? Please explain.
I doubt if employment continues to materially contribute to the claimed injury as sufficient time has passed to allow for the injury to subside. I believe that significant psychological and social factors are now playing a bigger role in perpetuating the claimed physical incapacity.”[72]
[72]DCB 50.
89Dr Tan said further that:
“My opinion is that the work-related aggravation should have subsided considerably, if not ceased, by now. The pre-existing condition has not obviously worsened and if it were not for the significant psychological and social factors at play, her condition should have improved.”[73]
[73]DCB 51.
90Pausing here, I note the defendant does not rely upon that part of Dr Tan’s opinion that the plaintiff’s work-related aggravation has now subsided considerably, if not ceased.
91The defendant cross-examined the plaintiff and submitted that part of her failure to return to work was due to her loss of identity upon the withdrawal of the Qantas job. I note the defendant did not submit that significant psychological and social factors were now preventing the plaintiff’s condition from improving, consistent with its concession that the plaintiff had a “serious injury” for pain and suffering purposes.
92I consider that Dr Tan’s opinion about the cessation of any work aggravation, and Dr Tan’s opinion that significant psychological factors were preventing the plaintiff’s condition from improving, to be against the weight of the medical evidence. I do not accept her opinions in regard to those issues.
93Next, in respect to capacity to return to suitable employment, Dr Tan said:
“I consider that she has a capacity to return to suitable employment although she would naturally need to have the motivation to do so.. I do not consider that she has immediate capacity for pre-injury work hours. Reasonable restrictions to enable her to be able to return to work are: flexibility to alternate working in seated or standing position as desired, no lifting of more than 3 kilograms, ability to pace herself, no long commutes to get to work.”[74]
[74]DCB 51.
94Dr Tan then said that she did not consider the current incapacity was still materially contributed to by the injury on 9 May 2019.[75] I assume Dr Tan considers that the physical restrictions she described as lifting no more than 3 kilograms, and the ability for the plaintiff to pace herself, are due to an underlying physical condition. Dr Tan does not provide a path of reasoning to understand why she has placed physical restrictions on the plaintiff if she considers that the work incapacity has ceased. It may be that she considers the restrictions are due to an underlying degenerative condition in the lumbar spine but, again, she provides no path of reasoning as to how and when that underlying condition became symptomatic in the context of the work injury running its course.
[75]Ibid.
95It may also be that Dr Tan considers the plaintiff’s psychological symptoms are the cause for her incapacity, although why that would cause her to place physical restrictions on the plaintiff is hard to understand.
96Dr Tan said, regarding the plaintiff’s prognosis, that:
“It is unrealistic to expect the Plaintiff to reach a pain-free state. Given that she has now been suffering from chronic pain since May 2019 and reports no change in pain levels for the vast majority of that time, her domestic situation with her younger son and an often absent husband and questionable determination to learn the skills to better manage her condition, I think she is unlikely to achieve any substantial recovery.”[76]
[76]DCB 53.
97Pausing again, overall, I am unimpressed by Dr Tan’s opinions, in part for the reasons already expressed. Dr Tan also appears to consider that the plaintiff’s main problem lies in the psychiatric province, or is caused by the fact of her domestic situation with her younger son and the nature of her husband’s employment. However, that completely ignores the fact that pre-injury the plaintiff more than coped with her youngest son’s situation and the fact that her husband was a FIFO worker. I consider Dr Tan’s opinion to be lacking in proper analysis of the plaintiff’s situation pre- and post-injury.
98In any event, Dr Tan then provided a further report dated 30 May 2023 regarding the IPAR jobs. She said as follows:
“From a physical perspective, can the Plaintiff perform the roles identified in the enclosed vocational assessment report, namely:
1. Customer Service / Inquiry Clerk
I consider that this would be a suitable employment option in terms of the physical aspects of the anticipated work duties. To do this work as comfortably as possible, she would need to have the use of a sit-stand desk and liberty to walk around the office area, which many employers should be able to accommodate. However, the commute to and from work could present difficulties. Both of the potential employers identified by IPAR would require her to travel to locations in the western or northwestern [sic] side of greater Melbourne, with estimated one way travel times of 38 to 42 minutes that seem optimistic but are still longer than Ms Perdikis is likely to tolerate. The IPAR Vocational Assessment has identified that Ms Perdikis does not feel capable of driving for more than 30 minutes.

2. Administration Assistant
This should be a suitable job option in terms of the physical aspects of the anticipated work duties. To do this work as comfortably as possible, she would need to have the use of a sit-stand desk and liberty to walk around the office area, which many employers should be able to accommodate. The means and duration of travel to and from potential workplaces also needs to be considered as she has a car but does not feel capable of driving for more than 30 minutes.

3. Receptionist
A receptionist role is likely to be more sedentary than the other two employment options, which makes it more likely to exacerbate her symptoms. Her limitations in terms of travelling to and from work would need to be factored in, when considering potential employers.”[77]
[77]DCB 54.

99Finally, Dr Tan provided a third report dated 8 June 2023 in which she answered a question about hours of work as follows:
“1.How many hours could the Plaintiff work each week performing these roles? Noting that the Plaintiff only worked 20 hours per week prior to her injury, could the Plaintiff perform the roles for 20 hours per week?
Ms Perdikis was working up until January 2022, but her rehabilitation was significantly impacted by Covid-19 lockdowns and she was repeatedly stood down. When she last worked in January 2022, she was working only 8 hours per week- much less than her pre-injury 20 hours per week. From what Ms Perdikis has told me, at the time she ceased work, she was beset by anxieties, low mood and significant adverse social factors. It is unlikely that the psychosocial factors that discouraged her from working have all resolved. In my view, it would be unrealistic to expect her to immediately return to working 20 hours per week. To improve the likelihood of a successful return to work, it is more realistic to start her off with 8 hours of work per week and gradually increase the working hours as tolerated.
2.If not 20 hours per week, how many hours per week could she perform the roles? Could the Plaintiff increase her hours up to 20 hours per week over time? If so, how long?
Please see my answer to question 1. I would allow Ms Perdikis to gradually increase her working hours to the target of 20 hours per week over a 10-12 week period.”[78]
[78]DCB 56.

Dr Joseph Slesenger
100Dr Joseph Slesenger is an occupational physician who examined the plaintiff on 13 April 2023, and provided a report dated 26 April 2023.[79]
[79]DCB 58.
101Dr Slesenger also obtained a history of the plaintiff’s injury, progress, symptoms and treatment. He had a history of her return to work. He then conducted a physical examination, reviewed documents and expressed his opinion in answer to various questions.
102Dr Slesenger said there was no evidence of a functional element to the plaintiff’s presentation, consistent with the overall comments by medical examiners, save for perhaps Dr Tan. In fact he said there was no evidence of a non-physical basis to the plaintiff’s somatic symptoms.[80] He said the plaintiff suffered a soft tissue injury, coccygeal fracture, aggravation of degenerative disease of the lumbar spine, and chronic low back pain with radiating features. I accept that diagnosis, and it is consistent with the balance of the medical evidence as set out.
[80]DCB 73.
103Dr Slesenger then said he did not anticipate a significant alteration to the plaintiff’s presentation in the foreseeable future.[81] He said he was satisfied that employment continued to materially contribute to the injury, and he noted the continuous symptoms subsequent to the injury.[82]
[81]DCB 74.
[82]DCB 75.
104In respect to a return to work, Dr Slesenger said as follows:
“7. Does the Plaintiff have a capacity to return to work in her pre-injury duties and hours (20 hours per week)?
I am of the opinion that Mrs Perdikis could return to work, performing duties with restrictions, namely:
● No push, pull, carry and lift over 5 kg.
● No repetitive bending and twisting.
● No prolonged static postures.
● No exposure to whole body vibration.
● 4 hours a day, 5 days per week.

8. If not, does the Plaintiff have a capacity to return to suitable employment performing 20 hours per week? If yes, specify any restrictions that are required to enable the Plaintiff to be able to return to employment.
At this stage, I am of the opinion that Mrs Perdikis cannot return to pre-injury duties as the job demands lie outside her capacity limits. I am of the opinion that she retains capacity for work.”[83]
[83]DCB 75.

105Dr Slesenger was then asked to provide a supplementary report. In a supplementary report dated 22 May 2023,[84] he repeated much of his earlier report, but then answered specific questions regarding Dr Tan’s opinion. He disagreed with Dr Tan’s opinion and said he remained of the opinion that the work-related impairment had not resolved.[85]
[84]DCB 78.
[85]DCB 85.
106Dr Slesenger was then asked questions about jobs as follows:
“2.From a physical perspective, can the Plaintiff perform the roles identified in the enclosed vocational assessment report, namely:
a) Customer Service / Inquiry Clerk
b) Administration Assistant
c) Receptionist

Please note any restrictions and how many hours the Plaintiff could work each week. Noting that the Plaintiff only worked 20 hours per week prior to her injury, could the Plaintiff perform the roles for 20 hours per week?
I have been provided with a vocational assessment report, noting recommendations for Mrs Perdikis to return to work in the following roles:
·Customer Service/Inquiry Clerk: I am of the opinion that she could return to work in this role with the restrictions outlined above.
·Administration Assistant/General Clerk: I am of the opinion that she could return to work in this role with the restrictions outlined above.
·Receptionist: I am of the opinion that she could return to work in this role with the restrictions outlined above.

I am of the opinion that she could return to work, 4 hours a day, 5 days a week (i.e. she could return to work working pre-injury hours).”[86]
[86]DCB 85.

IPAR
107As already mentioned, Ms Chloe Mutimer is an occupational rehabilitation consultant who met with the plaintiff on behalf of IPAR and provided a vocational assessment report dated 11 May 2023.[87] There was considerable cross-examination based on that report, in particular, of the employment options and actual jobs identified in the report.[88] For present purposes, it is sufficient to note that I have considered the report, the identified jobs in it, and the hourly rates of pay.
[87]DCB 86.
[88]DCB 102-109 inclusive.
Nabenet
108Towards the end of the plaintiff’s employment with Qantas, and seemingly at a time when it was anticipated that she would be made redundant, the plaintiff was referred for assessment with Nabenet.
109Ms Ruby Pritchard, occupational rehabilitation and vocational adviser, provided three reports detailing the job seeking assistance provided to the plaintiff. Similar to the IPAR material, I have considered the Nabenet reports. I note that material concludes with a report dated 25 March 2022,[89] at which time various retraining options were discussed with the plaintiff as well as roles identified as customer service officer/account manager, concierge attendant and receptionist.[90]
[89]DCB 144.
[90]DCB 145.
110I note the report concluded by saying that the plaintiff would continue identifying suitable employers and would submit applications, and that she would benefit from undertaking further computer retraining.

The parties’ contentions
The defendant’s contentions
111The defendant contended that the plaintiff now had a capacity to work 20 hours per week in suitable employment. It contended that she had transferable skills in administrative or customer service-type employments. It submitted that the medical evidence did not support a conclusion that she now had no capacity for work.
112By reference to the “without injury” figure of $44,460, the defendant referred to the IPAR reports. It noted that if the plaintiff was limited to 12 hours per week, then she would satisfy the test for pecuniary loss serious injury based on the hourly rates of pay and jobs in the IPAR report, save for the casual job at the Moreland City Council.
113The defendant further identified that at either 16 or 20 hours per week then, save for a receptionist position,[91] in the other jobs the plaintiff would also fail to satisfy the test for pecuniary loss.
[91]DCB 107.
114The main thrust of the defendant’s submission was that the plaintiff is now fit for 20 hours per week.
115It was submitted that the evidence from Ms Mutimer (IPAR) carried greater weight than that of the plaintiff’s vocational material (Flexi Personnel) because of the comprehensive nature of the IPAR report and the effort to identify actual jobs, rather than simply extracting material from the internet or awards, without any explanation as to how that material related specifically to the plaintiff.
116There is merit in the submissions of the defendant that Ms Mutimer’s report carries greater weight than that of Flexi Personnel because of the comprehensive nature of it. However, there is also merit in the submission of the plaintiff that Ms Mutimer’s report is unsatisfactory to the extent that some of it is hearsay. At the end of the day, for the reasons I shall briefly give, nothing turns on this.

The plaintiff’s contentions
117The plaintiff first contended that a proper consideration of the medical evidence should lead to a conclusion that she now has no “after injury” capacity for suitable employment. The plaintiff submitted that the opinion from her long-term treating pain specialist, Dr Bates, should be preferred and that he had correctly concluded that the plaintiff “after injury” had no realistic capacity for “suitable employment”.
118In the alternative, the plaintiff contended that she had a capacity for no more than 12 hours per week as per the opinion of Dr Brasier.[92] She identified the rates of pay in the Flexi Personnel report and highlighted that at 12 hours per week in any of those jobs, then she satisfied the test for pecuniary loss serious injury.
[92]PCB 103.
119Further, the plaintiff contended that even at 20 hours per week, if the Flexi Personnel jobs were accepted as appropriate rates of pay, she still satisfied the test for pecuniary loss serious injury. The highest rate of pay in the Flexi Personnel report was $24.76 per hour for an administration assistant. This amount per hour by 20 hours per week equated to $495 gross per week, and so the test for pecuniary loss serious injury was made out.

Analysis
120As should be clear, I was impressed by the plaintiff as a stoic and thoroughly decent person. For many years she juggled what was no doubt a difficult situation with a special needs child, an absent husband, and a job assisting customers of Qantas who had lost their baggage. I consider the comments by Dr Tan to be unfair, and I reject any suggestion that the plaintiff has now collapsed under the weight of her family responsibilities and that is the reason she is not attempting alternate employment.
121I also reject the submission that the plaintiff had failed to make any reasonable effort to look for work. She did not hesitate to participate in return to work with Qantas post-injury, and the tenor of her evidence was that, notwithstanding significant low back pain, she would have continued to make efforts to return to work with Qantas had they offered work to her. It is relevant, in my opinion, that they considered her unfit for the inherent requirements of her pre-injury employment.
122The resolution of this application boils down to a consideration of whether the plaintiff now has a residual capacity for “suitable employment” in an environment where she has access to a flexible workstation, such as a sit and stand desk, and an ability to change her posture as needed.
123Despite the defendant’s submission that the plaintiff’s evidence about why she could not use a sit and stand desk was unconvincing, I consider that in fact her evidence was convincing. I accept her evidence that she could not work consecutive days. I accept her evidence that even with a flexible workplace and workstation, she would have significant increase in her pain with a need to lie down and an unpredictability in her symptoms such as to make her unreliable for work.
124I consider there is force in the opinion from Dr Bates that the plaintiff now “after injury” has no capacity for suitable employment.
125However, on a consideration of the whole of the evidence, including the plaintiff’s evidence about her return to work in July 2021 at eight hours per week, I conclude that “after injury” she has a capacity for “suitable employment” for 8-12 hours per week.
126Turning then to the legal analysis, in my view, an inability to return to her pre-injury employment, and a permanent restriction “after injury” for no more than 8-12 hours per week of modified duties, is a “very considerable” pecuniary loss consequence.
127Accordingly, the plaintiff has satisfied the first step.
128Next is a consideration of whether the plaintiff has satisfied the statutory formula to demonstrate the requisite 40 per cent loss. At the upper end of my assessment of her residual capacity, that is at 12 hours per week, it does not matter whether I use the IPAR or Flexi Personnel figures as, with one exception, the plaintiff satisfies the statutory formula.
129The one exception is the job identified by IPAR at the Moreland City Council.[93] It appears to be an administration officer or general clerk-type role. It is described as a role to ensure quality data entry of vaccines provided to clients, to assist in logistics management of immunisation clinics and to advise an immunisation nurse of matters requiring attention, as well as other duties, including accurate and accountable receipt service for payments. It is noted to be a casual role, with hours to be determined. IPAR were not able to confirm whether work/role modifications were available, and made assumptions that such a role is typically sedentary in nature and therefore not likely to require excessive walking or heavy lifting.
[93]DCB 106.
130In my view, the evidence of the job at the Moreland City Council is so vague as to discount it as potential “after injury”, “suitable employment”. First, it is a casual role, but the number of hours that would be available is not given. It is unclear whether the role would even be available for 8-12 hours per week. Second, it requires a range of skills that the plaintiff simply does not have. She was not cross-examined about whether she could achieve appropriate skills to receive payments or to maintain or assist in the logistics of vaccination clinics. She has no knowledge of the National Immunisation Program. I note the particular job requires administration officer experience in a similar environment, which the plaintiff does not have. Third, it requires flexibility to work around planned immunisation sessions, which the plaintiff also may not have because of her chronic pain and the unpredictable nature of her pain. In my view, the identified job at the Moreland City Council is simply not “suitable employment”.
131Accordingly, there is no need to resolve the debate as to whether the evidence from IPAR should be preferred over Flexi Personnel. In my view, there are limitations with all of that evidence but, regardless, the hourly rates for jobs – excluding the Moreland City Council job – but my conclusion that the plaintiff can do no more than 12 hours per week means that, regardless of which report is preferred, the plaintiff satisfies the test for pecuniary loss serious injury.
132For completeness, I note the specialist occupational physician, Dr Brasier, supports my conclusion of no more than 12 hours per week. I prefer Dr Brasier’s opinion over that of Dr Slesenger although, on one view, there is not a great deal of difference between their opinions. The difference is that Dr Slesenger opined that the plaintiff could return to work for four hours a day, five days a week. I consider the whole of the evidence to lead to the conclusion that the plaintiff could not reliably work consecutive days. Therefore, I reject Dr Slesenger’s opinion that the plaintiff could work four hours a day, five days a week. I consider a more realistic assessment is that she could work four hours a day on non-consecutive days, namely Monday, Wednesday and Friday, which equates to 12 hours.

Conclusion
133Therefore, for the reasons given, I conclude that the plaintiff’s current “after injury” capacity is for no more than 12 hours per week.
134For completeness, there is no suggestion in the medical material that the plaintiff’s condition is likely to improve. I consider, therefore, that her condition is permanent and that she will permanently have a greater than 40 per cent loss of earning capacity that will be productive of financial loss of 40 per cent or more.
135Therefore, the plaintiff has satisfied the test and is entitled to leave to commence a common law proceeding for pecuniary loss damages.
136Accordingly, the plaintiff has the leave of the Court to commence a proceeding for pain and suffering and pecuniary loss damages.
137I shall hear from the parties as to consequential orders.

[2023] VCC 1076

28 June 2023