Projevski v Coles Group Supply Chain Pty Ltd
[2025] VCC 314
•31 March 2025
M
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-24-02847
| KRSTE PROJEVSKI | Plaintiff |
| v | |
| COLES GROUP SUPPLY CHAIN PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE MAGEE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 February 2025 | |
DATE OF JUDGMENT: | 31 March 2025 | |
CASE MAY BE CITED AS: | Projevski v Coles Group Supply Chain Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 314 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – pain and suffering – loss of earning capacity – impairment of function to the lumbar spine – psychological injury
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s325
Cases Cited:Giankos v SPC Ardmona Operations Ltd (2011) 34 VR 120; Richter v Driscoll (2016) 51 VR 95
Judgment:Application granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mighell KC with Mr G Smith | Zaparas Lawyers Pty Ltd |
| For the Defendant | Mr T Storey | Lander & Rogers |
HER HONOUR:
Introduction
1Mr Projevski, the plaintiff, is a thirty-three-year-old man who alleges that he injured his lower back in the course of his employment as a picker-packer for the defendant, Coles Group Supply Chain Pty Ltd, and, in particular, in the second week of November 2020.
2The plaintiff applies for leave to bring common law proceedings seeking pain and suffering damages and pecuniary loss damages pursuant to s355 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (the “Act”) in relation to a lumbar spine injury and consequential psychological injury.
3The plaintiff’s application was heard on 11 and 12 February 2025. He was represented by Mr James Mighell KC with Mr Geoff Smith of Counsel. Mr Tom Storey of Counsel represented the defendant.
4The defendant did not dispute that the plaintiff had suffered a compensable injury.
5At the commencement of the hearing, the defendant accepted that the plaintiff’s lower back injury met the pain and suffering threshold.
6After the close of the evidence and before closing submissions, Mr Mighell KC informed the Court the plaintiff no longer relied on paragraph (c) (psychological injury).
7Consequently, the remaining issue in dispute is whether the plaintiff has established the pecuniary loss claim.
8The relevant legal principles are well-known and were not in dispute.
9In this application, the plaintiff must establish that he is permanently unable to earn at least 60 per cent of his “without injury” earnings in suitable employment by reason of his compensable spinal injury. He must also establish that the loss of earning capacity consequences of the spine are “serious”.
Issues for determination
10The issues for determination are:
(a) Do the jobs identified by the defendant constitute “suitable employment”?
(b) Is the plaintiff permanently unable to earn at least 60 per cent of his “without injury” earnings in suitable employment because of the permanent impairment consequences of his compensable spinal injury?
(c) Are the loss of earning capacity consequences of the plaintiff’s compensable spinal injury “serious”?
11For the reasons that follow, Mr Projevski is granted leave to seek loss of earning capacity damages for his compensable spinal injury.
Background
12The following, I believe, are uncontroversial matters. As far as any were contested, these represent my findings unless otherwise stated.
13The plaintiff is aged thirty-three and was born in Macedonia. He is a married man with a four-and-a-half-year-old son.
14The plaintiff completed tertiary education in Macedonia and completed a Bachelor of Science in Electrical Engineering and Information Technology, majoring in Power Engineering and Management.[1] He graduated in 2016. The plaintiff struggled with studies and it took him seven years to complete the electrical engineering degree.
[1] Defendant Exhibit 4, DCB 148-149
15The plaintiff was not formally employed in Macedonia but undertook volunteer work at an electricity plant.
16The plaintiff’s degree in electrical engineering did not lead to paid employment in Macedonia or Australia.
17The plaintiff married in Macedonia in 2017. He migrated permanently to Australia in 2018 when aged twenty-seven.
18In Australia he worked as a manual labourer.
19In about November 2019, the plaintiff commenced work as a picker-packer with the defendant through an employment agency called Labour Power. He became a direct employee of the defendant in May 2020.
20The plaintiff worked as a full-time picker-packer on a permanent casual basis at the defendant’s distribution centre located at Truganina.
21He ceased work in November 2020.
What are the permanent impairment consequences of the plaintiff’s spinal injury?
22The plaintiff tendered three affidavits sworn by him in support of his application, dated 17 January 2024, 19 December 2024 and 11 February 2025.[2] He was cross-examined.
[2]Plaintiff Exhibit P1, Plaintiff’s Further Amended Court Book (“PCB”) 13-20; 21-24 and 221-222
23The plaintiff claimed that he has suffered from the following impairment consequences:
· Pain – He had ongoing pain in his lower back which fluctuated between 5/10-8/10 in severity. He said that the pain would be 8/10 on most days. He had steadily worsening constant right leg pain. If he stood for long periods of time his right leg could go numb and be painful. The right leg pain could reach 8/10 in severity.
· Medication – at the time of swearing his first Affidavit, the plaintiff said he was taking two tablets per day of Indomethacin,[3] and Lyrica[4] three or four times per week. He would occasionally take Panadol.[5] He had ceased taking Lexapro[6] and Norgesic[7] due to side effects of drowsiness and reflux.[8] In his second affidavit, sworn on 19 December 2024, the plaintiff had increased his medication use and took between four to six tablets of Indomethacin per day and Lyrica twice per day.
· Relationship with son – He was unable to undertake activities with his son such as bicycle riding or playing soccer. He was restricted going on excursions with his son. He was unable to assist bathing his son.
· Social activities – He avoided social activities.
· Self-care – He had difficulty putting on his socks and cutting toenails.
· Employment – He had not returned to work. He had attended English classes to improve his English language skills. Between July 2022 and July 2023, whilst IPAR was involved in his case, he applied for 200 jobs through Seek. He applied for full-time jobs that he was not qualified for, or which were beyond his physical capacity. He had one unsuccessful interview. He did not think he had the capacity to work because of constant low back pain and right leg pain.
· Treatment – the plaintiff was undertaking a self-managed exercise program and continued to attend the Main Road Medical Centre for GP services.
· General restrictions – he had difficulties with bending, twisting, lifting, and with any activities involving pushing or pulling. He had difficulties walking, sitting and standing for extended periods of time. Prior to injury, he was able to perform basic servicing and maintenance of his cars but was no longer able to because of the bending and manoeuvring required.
[3]A prescribed nonsteroidal anti-inflammatory drug
[4]Also known as Pregabalin - a drug prescribed for neuropathic pain
[5]Over-the-counter non-prescription medication
[6]Also known as escitalopram – a prescribed anti-depressant medication
[7]A prescribed pain medication
[8] Plaintiff Exhibit 1, PCB 18, paragraphs [42]-[43]
The Lay evidence
24The plaintiff tendered an Affidavit of his wife, Simona Projevska, sworn on 15 January 2025.[9]
[9]Plaintiff Exhibit 2, PCB 25-27
25Mrs Projevska met the plaintiff in Macedonia in 2004. They married in 2017.
26Mrs Projevska said that the plaintiff’s English skills were poor when they arrived in Australia and that they had only marginally improved since they had been in Australia, whilst her English skills had improved over time. She said that they spoke Macedonian at home because of the plaintiff’s limited English skills.
27Mrs Projevska is currently employed as an information officer.
28She deposed to her observations of the plaintiff being in pain in his lower back and right leg. She said that the plaintiff was significantly impeded in caring for their son.
29Her evidence was generally supportive of the impairment consequences described by the plaintiff. She was not cross-examined. I accept her evidence.
The Plaintiff’s medical evidence
Radiology
30The plaintiff tendered the reports of five MRI scans and a report of a CT-guided right L5-S1 epidural steroid injection.
31The first MRI scan was performed on 14 December 2020.[10] The scan was reported to show “[v]ery minimal right paracentral disc herniation at L5-S1 causing minimal indentation of the right descending S1 nerve root”.[11]
[10] Plaintiff Exhibit 3, PCB 29 and Plaintiff Exhibit 1, PCB 15, paragraph [13]
[11] Plaintiff Exhibit 3, PCB 28
32The plaintiff had a CT-guided right L5-S1 epidural steroid injection on 21 January 2021.[12]
[12] Plaintiff Exhibit 3, PCB 29
33The second MRI scan was performed on 6 March 2021 and was reported to reveal a small right paracentral disc protrusion L5-S1. The protrusion was reported to contact and mildly displace the traversing right S1 nerve root in the spinal canal.[13]
[13] Plaintiff Exhibit 3, PCB 30
34The third MRI scan was performed on 22 December 2021. The radiologist compared this scan with the first MRI scan. It was considered that there had been some progression of L5-S1 central/right-sided disc prolapse with impingement of the right descending S1 nerve root.[14]
[14] Plaintiff Exhibit 3, PCB 31
35The fourth MRI scan was performed on 15 June 2022. The radiologist reported that the MRI scan showed no change since the first MRI scan.[15]
[15] Plaintiff Exhibit 3, PCB 33
36The fifth MRI scan was performed on 1 October 2024. It was reported to reveal a small disc protrusion at L5/S1 with a right paracentral annulus tear abutting the right S1 nerve root sheath which may be irritating the right S1 nerve.[16]
[16] Plaintiff Exhibit 3, PCB 35
The Plaintiff’s treating practitioners
37The plaintiff tendered material from Dr Syed Imran, General Practitioner (“GP”), two neurosurgeons, Dr Hazen Akil and Mr Patrick Lo, and a rehabilitation physician, Dr Damien Daniel.
Dr Syed Imran, GP
38The plaintiff tendered a series of letters and reports of Dr Imran of the Main Road Medical Centre dated 13 July 2023, 20 October 2023, 4 December 2023 and 29 September 2024, together with a Work Capacity Checklist dated 4 September 2023.[17]
[17] Plaintiff Exhibit 7, PCB 62-82
39In a letter dated 29 September 2024, Dr Imran’s diagnosis was right sciatica in the context of a mild right paracentral disc herniation at L5-S1.
40In October 2023, Dr Imran considered that the plaintiff was fit for modified duties.
41Dr Imran referred to what he considered a relapse of severe lower lumbar back pain and pain in the right leg in November 2023.[18] I find this may explain why he changed his opinion about capacity for suitable employment in subsequent reports.
[18] Plaintiff Exhibit 7, PCB 81
42By December 2023 Dr Imran opined that the plaintiff’s capacity for any form of suitable employment was dependent on recovery (it is not said to what extent) of pain symptoms.
43In a document titled “Group Risk Claims Preliminary Medical Attendant’s Statement” addressed to Zurich-Australia Limited dated 4 (or 9) December 2023,[19] Dr Imran said that the plaintiff was unable to work and would need a further evaluation of suitable employment at some time in the future.
[19]Plaintiff Exhibit 7, PCB 76-80. The handwritten date is difficult to decipher
44In a report dated 29 September 2024, Dr Imran said the plaintiff was not fit for pre-injury work. Dr Imran opined that the plaintiff would be fit to perform modified duties with restrictions “when he recovers”.
45Dr Imran opined that even after recovery from current pain, the plaintiff would not be able to work more than four hours a day , four days a week(that is, 16 hours a week).
46Dr Imran was not asked to comment on the two jobs identified by the defendant. Dr Imran opined in his 2024 report that the plaintiff would need a detailed consultation with an occupational therapist to discuss the kind of work he would be able to manage both physically and mentally in future.
Dr Hazem Akil, neurosurgeon
47The plaintiff tendered three reports from Dr Akil dated 15 March 2021, 10 December 2024 and 16 January 2025.[20]
[20]Plaintiff Exhibit P4, PCB 36-44
48Dr Akil has been the plaintiff’s treating neurosurgeon since 22 February 2021. Dr Akil reviewed the plaintiff on 17 September 2024 and 10 December 2024.[21]
[21] Plaintiff Exhibit 4, PCB 41 and 43
49Dr Akil’s initial examination of the plaintiff revealed an absent right ankle jerk but no other sensory or motor deficit.
50Dr Akil said the initial MRI scan was undertaken prior to the commencement of radicular symptoms so he arranged a further MRI scan.
51In March 2021, the plaintiff reported to Dr Akil that his pain level had improved, especially in his leg. Dr Akil suggested the plaintiff continue with physiotherapy. Dr Akil advised the plaintiff that he should adhere to work restrictions and avoid repetitive pushing, pulling or lifting, as well as bending, reaching, twisting, stooping, as well as prolonged sitting, standing or walking. Dr Akil considered that in the light of reported improvement, the plaintiff might be able to perform a desk job where he could alternate between sitting and standing.
52Dr Akil diagnosed discogenic lower back pain with element of right S1 radiculopathy.
53In December 2024, Dr Akil discussed further treatment options with the plaintiff which included either persevering with physiotherapy, a right S1 nerve sheath block, or a microdiscectomy at L5-S1. The plaintiff said he wanted to discuss these options with Dr Imran.
54In his report dated 16 January 2025, Dr Akil opined that the plaintiff was restricted in his ability to push, pull, repetitively bend, twist or stoop. These restrictions could affect his ability to sit or stand for a prolonged period or drive a car.
55Dr Akil opined that it was likely that the plaintiff would be precluded from returning to manual labour for the foreseeable future. It was his opinion that the plaintiff’s incapacity for physically demanding employment “was likely to continue”.
56Dr Akil said he did not discuss alternative suitable employment with the plaintiff as he was not fully aware of the plaintiff’s educational background, place of residence and work experience.
Mr Patrick Lo, neurosurgeon
57The plaintiff tendered a series of letters from Mr Lo dated 21 July 2021, 3 November 2021, 2 February 2022, 9 March 2022 and 22 June 2022.[22]
[22]Plaintiff Exhibit P5, PCB 45-51
58Mr Lo’s letter to Dr Imran dated 21 July 2021 referred to a telephone consultation with the plaintiff. Mr Lo agreed with Dr Akil’s recommended conservative approach.
59Mr Lo’s letter to Dr Imran dated 3 November 2021 noted the plaintiff seemed to have stabilised to a degree and was beginning modified duties at work. Mr Lo wanted an updated MRI scan to check the status of the L5/S1 disc prolapse. He considered himself and Dr Imran could “really ramp up” the plaintiff’s physical activity if the plaintiff’s condition remained stable. Mr Lo also stressed that he wanted the plaintiff to return to hydrotherapy once pools opened up again after the COVID-19 restrictions.
60By 2 February 2022, Mr Lo was concerned that the analgesia the plaintiff was taking was masking “the real problem”. Mr Lo reduced the plaintiff’s Lyrica to 1 x 75 milligrams on alternate days.
61On 9 March 2022, Mr Lo opined he would be happy for the plaintiff to start a return-to-work program with reduced hours, regular rest breaks, and no lifting, bending or twisting of the back, and that if the pain resurfaced, he should rest.
62In his letter dated 22 June 2022, Mr Lo opined that the June 2022 MRI scan showed no progression of the L5/S1 broad based disc bulge and there was no neural compression. There were no neurosurgical options. He suggested referral to a multidisciplinary pain management team.
63Mr Lo opined that the plaintiff did not have the capacity to return to pre-injury work. It was his view that the plaintiff may be retrained to work in an office-based environment.
64No further attendances were scheduled with Mr Lo.
Dr Damien Daniel, specialist rehabilitation physician
65The plaintiff tendered reports of Dr Damien Daniel of Advance Healthcare dated 31 August 2022 and 8 August 2023.[23] The plaintiff attended Dr Daniel as part of a pain management program which took place between August 2022 and July 2023.
[23]Plaintiff Exhibit P6, PCB 62-67
66On clinical examination on 31 August 2022, Dr Daniel observed the plaintiff was able to walk unaided with a slightly stiff back. Apart from some limitation of flexion of the lumbosacral spine, the plaintiff had an excellent range of motion. There was no tenderness to palpation and no peripheral neurology in his lower limbs. There were no positive results on provocation of his sacroiliac joint on the right side. He was slightly limited in straight leg raise on the right side due to pain.
67In August 2023, Dr Daniel diagnosed “a mix of pain types, with features of nociceptive and neuropathic pain”. He said there was chronic secondary musculoskeletal pain of moderate-marked severity which was most likely due to the L5-S1 intervertebral disc protrusion.
68Dr Daniel said that after speaking with the plaintiff’s treating physiotherapist,[24] he formed the view the plaintiff had the capacity for light modified duties (for example administrative/desk-based duties) at reduced hours. Dr Daniel qualified this opinion, as he had not seen the plaintiff for some time. He did not have any occupational rehabilitation material before him or any assessments of suitable duties/employment options.
[24]No material from the plaintiff’s treating physiotherapist was tendered
69Dr Daniel’s reports predated the tendered vocational material.
The Plaintiff’s medico-legal reports
70The plaintiff tendered medico-legal reports from Dr Eman Awad, occupational physician; Professor Richard Bittar, consultant neurosurgeon, and Dr Meena Mittal, pain medicine specialist and anaesthetist.
Dr Eman Awad, occupational physician
71Dr Awad assessed the plaintiff on 14 November 2024 with a Macedonian interpreter.[25]
[25]Plaintiff Exhibit P8, PCB 99-106
72Dr Awad was provided with the radiology discussed above, as well as a right lower limb venous Doppler ultrasound dated 18 August 2021, and an MRI scan of the brain and cervical spine dated 1 March 2022.
73Dr Awad diagnosed a prolapsed intervertebral disc at L5-S1 and “chronic pain”. Dr Awad opined the plaintiff’s pain was discogenic and organic.
74The plaintiff reported constant back pain with a severity of 9/10 in the mornings, reducing to 5-6/10. He reported throbbing, radiating right leg pain with numbness.
75On clinical examination, the plaintiff displayed full extension. He was able to flex his knees with pain, stand on his toes and squat. Standing on his heels was painful. He had good lateral extension and rotation.
76Dr Awad opined that the plaintiff was permanently restricted from undertaking any roles that required him to push, pull, lift, carry more than 10 kilograms, work at heights, or repetitively bend. In addition, the plaintiff could not work in a job which required prolonged standing or sitting, walking on uneven surfaces or being exposed to whole body vibration.
77Dr Awad opined that the plaintiff had retained a residual partial capacity for 20 hours per week, taking into account his age, injuries, ongoing sequalae, education level, qualifications, occupational history, language skills/command of English and length of time out of employment.
78Dr Awad noted that despite the fact that the plaintiff had completed a Certificate III in English, he had very little direct communication with her during the consultation and he relied on the interpreter.
79Dr Awad expressed the view that the plaintiff required upskilling/retraining. She said his command of English may be a barrier to employment.
80In addition, she considered that the plaintiff was likely to experience repetitive flare ups, leading to recurrent absences which may impact on the plaintiff’s ability to work in a reliable and sustained manner.
81Dr Awad was asked to consider the CoWork Report. Relevantly, Dr Awad opined:
· Administrative Officer – Appointment Setter/Scheduler: He did not have the level of English required for his role. He had no capacity for this role.
· ICT Customer Support Officer: He did not have the level of English required for this role as he would need to liaise with customers. He had no capacity for this role.
82It is unclear from Dr Awad’s reports whether, when she commented on the suitability of the roles of Administrative Officer and ICT Customer Support Officer, she was basing her opinion on the plaintiff’s English capacity only, or whether she considered that the plaintiff did not have the physical capacity to perform the roles.
Professor Richard Bittar, consultant neurosurgeon
83The plaintiff tendered a report from Professor Bittar dated 22 November 2024. Professor Bittar assessed the plaintiff on 22 November 2024, with the assistance of an interpreter.
84Professor Bittar was not provided with the MRI scan of the lumbar spine performed on 6 March 2021 or its report. Professor Bittar was provided with MRI scans of the brain and cervical spine dated 1 March 2022 which have not been tendered.
85On clinical examination, the plaintiff walked with a non-antalgic and non-myelopathic gait. There was no muscle wasting, swelling or discolouration in the lower limbs. There was moderate restriction of lumbar spine flexion but no restriction of lumbar spine extension. Flexion was more painful than extension. There was no evidence of radiculopathy or myelopathy.
86Professor Bittar diagnosed lower back pain and right sciatica secondary to a right L5-S1 intervertebral disc prolapse. The plaintiff’s clinical presentation was consistent with the radiology. Professor Bittar said he did not observe any abnormal illness behaviour.
87Professor Bittar opined that it was likely that the plaintiff would continue to experience significant pain and disability into the foreseeable future.
88Professor Bittar recommended the plaintiff have a standing MRI scan of the lumbar spine and right S1 nerve sheath injection with local anaesthetic and steroids. There is no evidence that either of these have been carried out.
89Professor Bittar opined the plaintiff should be permanently restricted from:
· Repetitive or forceful pushing or pulling
· Repetitive lifting or carrying and heavy lifting
· Repetitive or sustained bending, reaching or stooping
· Prolonged sitting, standing or walking
· Driving for long periods (he can drive for up to one hour, but if driving for longer, would need to take additional medications).
90Professor Bittar was asked to comment on the suitability of the five jobs set out in a CoWork report dated 28 July 2024, as well as the jobs set out in IPAR vocational planning reports dated 28 July 2022 and 16 December 2022 ( which are not before the Court).
91Without commenting on any of the roles individually, Professor Bittar opined the plaintiff would not have capacity to perform any of the roles on a reliable and consistent basis, when having regard to the consequences of the plaintiff’s back injury, functional limitations identified, as well as his education, training, skills (including limited English skills) and work experience.
92Professor Bittar opined that there was no work for which the plaintiff was currently suited on a consistent and reliable basis.
Dr Meena Mittal, pain medicine specialist and anaesthetist
93The plaintiff tendered a report of Dr Mittal dated 11 November 2024. The plaintiff attended for assessment with Dr Mittal on 11 November 2024 with a Macedonian interpreter.
94Dr Mittal reviewed the (tendered) radiology as well as a right lower limb venous Doppler ultrasound dated 18 August 2021, and an MRI scan of the brain and cervical spine dated 1 March 2022.
95On clinical examination, there was normal lumbar lordosis. There was evidence of bilateral paravertebral muscle spasm, which was observed to be worse on the right. Flexion was restricted to 30 degrees and extension was restricted to 5 degrees. There was increased tenderness in the paravertebral and midline regions of the lower lumbar spine. The right S1 reflex was absent. The straight leg raise test was positive at 60 degrees on the right-hand side. There was no evidence of muscle wasting or fasciculations. Power was normal. There was no sensory abnormality to light touch and pinprick.
96Dr Mittal diagnosed:
· Aggravation of lumbar spondylosis.
· Lower back pain secondary to myofascial spasm. There may be an underlying element of facet joint pain.
· Right lower limb pain secondary to right S1 radiculopathy due to an L5/S1 disc prolapse with impingement on the right S1 nerve root.
97Dr Mittal recommended that the plaintiff be reviewed by a pain management specialist to address:
· Analgesic medications, particularly considering the adverse effects of long-term use of NSAIDs.
· Interventional pain management in the form of neuromodulation or pulsed radiofrequency denervation.
98Dr Mittal opined that the plaintiff’s presentation was consistent with the examination and radiological findings.
99Dr Mittal opined the plaintiff would be permanently precluded from returning to manual work and would need to avoid:
· Prolonged sitting, standing or walking
· Prolonged driving
· Lifting or repetitive lifting
· Carrying or prolonged carrying
· Twisting, turning, stooping, squatting
· Climbing up and down stairs
· Climbing up and down ladders
· Pushing or pulling activities.
100Dr Mittal opined that all of the roles in the Co-Work report were unsuitable for the plaintiff, taking into consideration:
· The plaintiff had not worked as an electrical engineer for more than six months[26]
· The plaintiff completed his education in electrical engineering several years ago
· He had poor English skills
· He had difficulty in engaging in activities such as prolonged sitting, standing, walking and driving
· He had high levels of baseline pain, exacerbated by activities such as sitting, standing, walking or bending
· He is on medications that are sedative in nature and affect cognition
· He has not worked as an electrical engineer in Australia.
[26]The plaintiff had never worked as an electrical engineer
101Dr Mittal was unable to comment on whether the plaintiff’s incapacity would be likely to continue for the foreseeable future. She considered that given the plaintiff’s young age and the fact there was further treatment that can be offered, there was a possibility for some improvement in the foreseeable future (with further training in English skills).
The Defendant’s medical evidence
Medico-legal reports
102The defendant tendered medico-legal reports of Dr Joseph Slesenger, occupational physician.
Dr Joseph Slesenger, Occupational Physician
103The plaintiff attended Dr Slesenger for assessments on 9 March 2023 and 30 September 2024 with a Macedonian interpreter. Dr Slesenger prepared reports dated 10 March 2023 and 1 November 2024.
104Dr Slesenger reviewed the (tendered) radiology, apart from the MRI of the lumbar spine dated 1 October 2024 which came into existence after his second examination. Dr Slesenger also had the report of an MRI scan of the brain and cervical spine dated 1 March 2022 which is not before the Court.
105In his first report, Dr Slesenger diagnosed a soft tissue injury to the lumbar spine, presenting with chronic lower back pain. In his second report, Dr Slesenger diagnosed the plaintiff with a soft tissue injury, aggravation of degenerative disease of the lumbar spine, and chronic lower back pain with radiating features.
106In his first report, Dr Slesenger opined there was a functional element to the plaintiff’s presentation which contributed to his impairment. Dr Slesenger referred to inconsistences between the seated and supine straight leg raise. He also noted the absence of wasting, despite complaints of weakness and a demonstrated restricted range of movement. He considered that there was an improved range of lumbar spinal movements upon distraction, particularly flexion.
107In his second report, Dr Slesenger did not comment on functional elements, but he acknowledged his earlier comments regarding functional elements.
108On clinical examination in 9 March 2023, Dr Slesenger found no tenderness upon palpation of the lumbar spine, extension of the lumbar spine reached 30 degrees, and right and left rotation each reached 70 degrees. Power was reduced in the lower limbs and ankle and knee reflexes were normal bilaterally.
109On clinical examination on 30 September 2024, Dr Slesenger found tenderness over the lower lumbar spine and the paraspinal musculature, and restrictions in the range of movement in flexion, extension, bilateral rotation and titling. Dr Slesenger said that the plaintiff’s lumbar spinal movements improved upon distraction. On neurological examination, Dr Slesenger found globally reduced power with collapsing weakness noted, dull ankle and knee reflexes bilaterally, and plantar reflexes down going bilaterally. The straight leg raise tests achieved a range of 20 degrees on the right (supine), 30 degrees on the left (supine) and 90 degrees bilaterally when seated.
110Dr Slesenger opined the plaintiff was approaching a position of maximum medical improvement. He noted the length of the impairment and disability, the limited response to treatment to date and the comprehensive nature of the treatment received. Dr Slesenger noted a number of other negative prognostic indicators including his psychological comorbidity and his current job detachment.
111Dr Slesenger opined that the plaintiff could not return to his pre-injury job.
112Dr Slesenger opined the plaintiff maintained a capacity for work with restrictions. The restrictions were:
· No push, pull, carry or lift over 5 kilograms on a repetitive basis and 7.5 kilograms on an occasional basis
· Avoid repetitive bending and twisting
· Avoid prolonged static postures
· Avoid exposure to whole body vibration.
113Dr Slesenger opined the plaintiff could return to work on a graduated return-to-work plan, commencing work four hours a day, four days a week, graduating back to pre-injury hours over six to eight weeks. Dr Slesenger recommended this graduated return to work in both of his reports.
114Dr Slesenger was asked to comment on the suitability of the roles set out in a CoWork report dated 28 July 2024.
115Dr Slesenger opined the plaintiff could return to work on a graduated basis, adhering to the restrictions set out above, in the roles of Administrative Officer (Appointment Setter/Scheduler) and IT Technical Support Officer (presumably Dr Slesenger was referring to the role of ICT Customer Support Officer) and Desktop Support Engineer and Service Desk Support (which appear to be examples of jobs under the umbrella description of IT Customer Support Officer).
Findings
116Counsel for the defendant did not challenge the plaintiff’s credit.
117Senior Counsel for the plaintiff submitted that the plaintiff gave evidence in a clear and unequivocal manner, noting that there was no attack on his credit and no extraneous material such as surveillance or significant medical evidence to suggest that the plaintiff was presenting in a functional manner.[27]
[27] Transcript (“T”) 104, Lines (“L”) 29-31; T105, L1
118I have had the benefit of observing the plaintiff while he was giving evidence to the Court. I formed the view that he tended to exaggerate or overstate things. At one stage, he described the English course he studied as not a professional course. He quickly resiled from that description.[28]
[28]T58, L1-7
119Despite his tendency to exaggerate, I formed the view that he was an honest witness who appeared to be doing his best to provide accurate responses to the questions asked of him.
120The plaintiff’s account of his impairment consequences is corroborated to a degree by his wife, who was not required to attend for cross-examination.
121In addition, the medical reports of the treating medical practitioners and the bulk of the medico-legal experts of both parties, contained accounts of his injuries and consequences which were supportive of the plaintiff’s evidence about his experience of pain in his back and right leg and the consequences for him.
122After a consideration of all of the evidence, particularly the evidence of the plaintiff, as corroborated by the evidence of his wife, and the medical reports tendered to the Court, I generally accept that he suffers from the impairment consequences which he has described.
123I find that the relevant compensable injury is a right L5-S1 intervertebral disc prolapse which causes right-sided sciatica.
124I find that the plaintiff experiences constant pain in his lower back and symptoms of numbness and pain in right leg. The pain varies in intensity and is at times severe. I accept that the plaintiff’s pain is generally aggravated by activity.
125I note that all the medical evidence supports the proposition that the plaintiff is prevented from returning to his pre-injury work because of his compensable lumbar spine injury.
126The defendant did not dispute the issue of permanence.
127I am satisfied that the plaintiff’s spinal impairment consequences are permanent in the requisite sense.
Is the Plaintiff permanently unable to earn at least 60 per cent of his “without injury” earnings in suitable employment because of the permanent impairment consequences of his compensable spinal injury?
128For the plaintiff to succeed in his claim for the loss of earning capacity consequence, he must establish:
· his loss of earning capacity consequence is, when judged by comparison with other cases in the range of possible impairments or losses of a body function, “fairly described as being more than significant or marked, and as being at least very considerable” (the narrative test);
· he has a loss of earning capacity of 40 per cent or more measured as set out in s325(2)(f) of the Act; and
· after the date of the hearing, he will continue permanently to have a loss of earning capacity productive of a financial loss of 40 per cent or more.
“Without injury” earnings
129The parties agreed that the “without injury” earnings figure was $105,976 per annum or $2,038 per week.
130The relevant 60 per cent figure is $63,586 per annum or $1,222 per week.
“With injury” earning capacity
131The plaintiff submitted that he has no capacity for suitable employment on a reliable and consistent basis.
132In accordance with its evidentiary onus,[29] the defendant submitted that the plaintiff had the capacity to work full time as an Administrative Officer (Appointment Setter/Scheduler) or an ICT Customer Support Officer.[30]
[29]Giankos v SPC Ardmona Operations Ltd (2011) 34 VR 120 (“Giankos”) at 144-145, paragraph [115]
[30] Defendant Exhibit D2, DCB 67-131
133The defendant submitted, relying on a CoWork vocational assessment and labour market analysis report dated 28 July 2024, that each of the jobs for which the plaintiff had capacity would produce gross full-time earnings in excess of the relevant 60 per cent threshold as follows:
· Administrative Officer (Appointment Setter/Scheduler): $1,337
· ICT Customer Support Officer: $1,392 to $1,871.
134The plaintiff tendered a vocational assessment report of Ms Katrine Green, dated 20 January 2025[31] and a Flexi Personnel earnings report dated 19 November 2024.[32]
[31]Plaintiff Exhibit P11, PCB 128-157
[32]Plaintiff exhibit P12, PCB 153 -157
135Relevantly, according to the Flexi Personnel earnings report, the weekly full-time earnings for the proposed roles were as follows:
· Administrative Officer (Appointment Setter/Scheduler): $24.87 per hour, which would equate to $945 for a 38-hour week.
· ICT Customer Support Officer: $31.09 per hour, which would equate to $1,181 for a 38-hour week.
136Neither counsel made submissions about the different figures provided for the relevant jobs as between the CoWork report and the Flexi Personnel earnings report.
The vocational evidence
137In order to understand the medical opinions regarding suitable employment evidence, it is convenient to summarise the vocational material at this point.
Administrative Officer (Appointment Setter/Scheduler Information Officer
138The physical demands for this role were described as sedentary.
139The CoWork report noted that this type of job required “Good communication skills along with sound computer skills … . Multi-tasking is required to book appointments whilst talking with customers. This occupation usually requires a medium level of digital literacy.”[33]
[33] Defendant Exhibit D2, DCB 91
140No Worksite assessment was provided for this job.
ICT Customer Support Officer
141The physical demands of this job were assessed as light. It was said to be generally a desk-based job. Extensive digital literacy was required for this job.
142Ms Joanne McLeod, occupational therapist, of Co-Work, thought the plaintiff had downplayed his computer skills and said that completing a degree in any field of engineering was not possible without high-level computer skills. It was asserted that the plaintiff would not have obtained his degree without highly developed computer skills. Ms McLeod did not provide any reasons for reaching such a conclusion with respect to a course undertaken in Macedonia.
143An unidentified person from CoWork conducted a worksite assessment for the position of an IT technical support officer on an unspecified date at a computer business in Hawthorn. It was noted that the position required the ability to listen and question people carefully, good memory and concentration, the ability to deal with stressful and high-pressure situations within tight timeframes, the ability to communicate complex skills and ideas with clarity, and required a self-motivated independent thinker with good problem-solving skills. It was noted that a typical day would require the worker to log onto the computer system, start to take calls at the beginning of the shift, follow up on the previous day’s tasks, and included delivery of spare parts and arranging courier pick up of equipment if needed. The work was observed to be constant, with little downtime between calls. The physical demands included constant sitting, with occasional walking around an office area, occasional bending, occasional reaching, and occasional lifting and carrying.
Do the identified jobs constitute “suitable employment”?
144In considering whether employment represents “suitable employment”, I must consider the nature of the plaintiff’s incapacity, the nature of his pre-injury employment, his age, education, skills and work experience, his place of residence, any return-to-work plan and any occupational rehabilitation services provided.[34]
[34]Section 3 of the Act
145I am required to take a “real world” approach to the plaintiff’s employment capacity in this gateway application. Employment capacity requires more than a physical capacity to engage in a task or tasks.[35]
[35]Richter v Driscoll (2016) 51 VR 95
146I accept that the plaintiff obtained tertiary qualifications in Macedonia. As part of his studies, he gained computer skills; however, since coming to Australia, he has relied upon his manual skills to earn an income, and has not been in any job which required computer skills.
147The plaintiff has limited English. The defendant submitted that it is difficult to assess the level of the plaintiff’s English proficiency. I accept that submission.
148Despite it being difficult to assess the plaintiff’s English proficiency, I note the following:
· The plaintiff’s wife has been able to improve her English and obtain employment in an office; however, the plaintiff has been unable to improve to do the same;
· It does not appear that an interpreter was present when the plaintiff attended his treating doctors;
· None of the treating doctors referred to any communication issues – they did not comment on the plaintiff’s English proficiency;
· The plaintiff attended all the medico-legal examinations with an interpreter;
· The plaintiff gave evidence through an interpreter and his English skills were not tested in Court;
· The plaintiff agreed that he was able to follow basic English commands when he was working as a picker-packer for the defendant;
· The Co-Work assessor noted that the plaintiff spoke mainly in Macedonian during the assessment but he was able to understand some English and speak English at times. The assessor specifically said: “It was not possible to properly assess his English fluency under these circumstances.”[36]
[36]Defendant Exhibit D2, DCB 83
149Taking all the evidence into account, I accept that the plaintiff has limited English which may well be a barrier to him undertaking the role of Administrative Officer - Appointment Setter/Scheduler or ICT Customer Support Officer.
150The evidence in relation to the plaintiff’s IT skills was unclear. The defendant pointed to the fact that the plaintiff obtained a Bachelor of Science in Electrical Engineering and Information Technology from the Ss Cyril and Methodius University in Macedonia to support the proposition that the plaintiff had experience in IT.
151This proposition is not borne out by the certificate from the Ss Cyril and Methodius University[37] which showed that the plaintiff did not study any specific IT subjects. Two of the units studied probably required some computer use – “Computer Modelling in Power Engineering” and “Artificial Intelligence Applications in Power Engineering”. The plaintiff gave evidence that his computer skills were limited and he was able to perform “very basic Internet, Facebook, gmail”.[38] He agreed he could type a document using Microsoft Word. It was not clear whether he meant in English or Macedonian.
[37] Defendant Exhibit 4, DCB 148-149
[38]T60, L8
152I find that the plaintiff has some limited computer skills . There is no real evidence as to his English-based computer skills. I am unable to ascertain his current level of computer proficiency in English.
153Dr Imran and Dr Akil were of the view that the plaintiff may be able to perform light work in the future but not at the time of their last examinations.
154Professor Bittar and Dr Mittal opined that the plaintiff had no work capacity.
155The opinions of the occupational physicians are of the most assistance in determining this issue, given their speciality.[39]
[39] Giankos at paragraph [96]
156I accept the opinion of Dr Awad that the plaintiff does not have a realistic capacity to perform suitable employment on a reliable and consistent basis. In my view, her opinion better accords with the impairment consequences which I have accepted.
157Insofar as Dr Slesenger purported to comment on psychological issues, I find that such comments fall outside his area of expertise, and I place no weight upon them.
158I find that the plaintiff does not lack motivation to work in suitable employment. The evidence regarding job applications was not contested and supports the submission made by Senior Counsel that he is in fact motivated to work but he believes he lacks the capacity to work on a reliable basis and lacks the physical capacity to work.
159In light of my findings regarding the plaintiff’s ongoing pain and impairment consequences, I am not satisfied that the two jobs identified by the defendant represent suitable employment.
160I find that the plaintiff does not have a capacity for suitable employment on a reliable and consistent basis. This incapacity for work is based on the combination of his lack of English proficiency and his physical incapacity for work.
161As the plaintiff does not have the capacity for suitable employment, it is not necessary for me to make any findings about the different wage rates produced by the parties in the Co-Work report and the Flexi Personnel report.
162I find that the plaintiff has satisfied his onus to establish that he is permanently unable to undertake suitable employment in which he could earn at least $63,586 per annum.
Is the loss of earning capacity consequence of the plaintiff’s compensable spinal injury “serious”?
163I find that the loss of capacity to undertake his pre-injury employment or suitable employment now and into the foreseeable future is a consequence that can be “fairly described as being more than significant or marked, and as being at least very considerable”. The plaintiff therefore satisfies the narrative test.
Conclusion
164The plaintiff has leave to issue common law proceedings claiming both pain and suffering and loss of earning capacity damages.
165I will hear the parties on the issue of costs.
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