Thomas v Victorian WorkCover Authority

[2025] VCC 1564

IN THE COUNTY COURT OF VICTORIA

AT GEELONG

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-25-00001

DARRYL JOHN THOMAS	Plaintiff
v
VICTORIAN WORKCOVER AUTHORITY	Defendant

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JUDGE:	HER HONOUR JUDGE ROBERTSON
WHERE HELD:	Geelong
DATE OF HEARING:	16 and 17 June 2025
DATE OF JUDGMENT:	24 November 2025
CASE MAY BE CITED AS:	Thomas v Victorian WorkCover Authority
MEDIUM NEUTRAL CITATION:	[2025] VCC 1564

REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION

Catchwords:              Damages – serious injury – injury to the spine – pain and suffering – credibility – loss of earning capacity – suitable employment

Legislation Cited:      Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), s3, s5, s325(1)(a), s325(2)(b), (c), (e), (f), (g), (j)

Cases Cited:Humphries and Anor v Poljak [1992] 2 VR 129; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Richter v Driscoll (2016) 51 VR 95; Giankos vSPC Ardmona Operations Ltd (2011) VR 120; Hunter v Transport Accident Commission [2005] VSCA 1; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Hawkins v DHL Express (Australia) Pty Ltd [2013] VSCA 26; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Sejranovic v Berkeley Challenge Pty Ltd [2009] VSCA 108; Sabanovic v Atco Controls Pty Ltd [2009] VSCA 143; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Victorian WorkCover Authority vPapaconstantinou [2021] VSCA 145; Yirga-Denbu v Victorian WorkCover Authority (2018) 57 VR 545; Cakir v Arnott’s Biscuits Pty Ltd [2007] VSCA 104; Petrovic v VictorianWorkCover Authority [2018] VSCA 243; Pulling v Yarra Ranges Shire Council [2018] VSC 248; Ryan v Bunnings Group Limited [2020] ACTSC 353; Mason v Demasi [2009] NSWCA 227; The Herald & Weekly Times Limited and Victorian WorkCover Authority v Jessop [2014] VSCA 292; Acir v Frosster Pty Ltd [2009] VSC 454; Cuturic v Spotless Facility Services Pty Ltd [2018] VCC 889; Hettiarachchi v Transport Accident Commission [2023] VSCA 27; Popal v Transport Accident Commission [2023] VSCA 222; Kadir v Transport Accident Commission [2023] VCAT 731; Jennings v Transport Accident Commission (Review and Regulation) [2023] VCAT 1176; Ristevski v Demos Property Services (Australia) Pty Ltd & Anor [2010] VCC 169; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170

Judgment:                  Leave is granted to the plaintiff to commence proceedings to recover damages for pain and suffering and loss of earning capacity.   

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A Macnab SC	Maurice Blackburn Lawyers
For the Defendant	Mr R Kumar	MinterEllison

Table of Contents

Introduction

Legal principles

The evidence

Background

Education
Employment history
Medical history
Circumstances of injury
Subsequent events and medical treatment

Parties’ submissions

Plaintiff’s submissions
Defendant’s submissions

Medico-legal evidence in relation to the Plaintiff’s lumbar spine

Mr Arshad Barmare, consultant orthopaedic surgeon
Professor Bittar, neurosurgeon

Did the Plaintiff have a compensable injury?

Was the Plaintiff’s injury permanent?

Credit

Loss of earning capacity consequences

What was the Plaintiff’s “without injury” earning capacity?
What is the Plaintiff’s “after injury” earning capacity?
Is the Plaintiff able to work in his pre-injury employment?
Is the Plaintiff able to work in “suitable employment”?
What, if any, roles could constitute “suitable employment” for the Plaintiff?

Erin Williams, vocational assessor
CoWork Pty Ltd, Vocational Assessment & Labour Market Analysis

Medico-legal opinions in relation to whether any of the roles identified by CoWork could constitute “suitable employment” for the Plaintiff

Dr Horsley, occupational physician
Dr Yong, specialist occupational physician
Professor Bittar, neurosurgeon
Mr Arshad Barmare, consultant orthopaedic surgeon

Is the Plaintiff able to work in “suitable employment”?
Has the Plaintiff suffered a more than 40 per cent loss of earning capacity?
Is the Plaintiff disentitled from establishing the loss of earning capacity required by paragraph s325(2)(b) of the Act because he had not made reasonable attempts to participate in rehabilitation or retraining as required by s325(2)(g) of the Act?
Is the loss of earning capacity permanent?

Is the Plaintiff’s loss of earning capacity consequences “serious”?

Are the impairment consequences for the Plaintiff with respect to pain and suffering “serious”?

Conclusion

HER HONOUR:

Introduction

1On 11 June 2022, the plaintiff suffered injury to his lumbar spine while performing duties at work with Australian Lamb (Colac) Pty Ltd (“the employer”).  The plaintiff was working in the lamb stockyards.  As the plaintiff backed down the steps on one side of a lamb restrainer, the unfixed platform on which he had been standing, swung upwards and the plaintiff fell backwards.  The plaintiff collided with a wall, and the steps were pressed into his chest. 

2The plaintiff claims, as a result of the above workplace accident, to have suffered a “serious injury” as defined in sub-paragraph (a) of the definition of “serious injury” in s325(1) of the Workplace Injury Rehabilitation and Compensation Act (Vic) 2013 (“the Act”) resulting in impairment of his lumbar spine.

3The plaintiff seeks leave to commence proceedings seeking damages for pain and suffering and pecuniary loss. 

Legal principles

4To succeed in this application, the plaintiff must satisfy the Court, on the balance of probabilities, that he has sustained a “serious injury” within the meaning of the definition of “serious injury” in s325(1)(a) of the Act.

5The term “serious” is satisfied by reference to the consequences to the worker of any impairment or loss of body function with respect to either pain and suffering and/or loss of earning capacity, when judged by comparison with other cases in the range of possible impairments or losses of body function, disfigurements, or mental or behavioural disturbances or disorders.[1]

[1]The Act, s325(2)(b)

6As stipulated in Humphries and Anor v Poljak,[2] the narrative test is to be applied when determining whether an injury can be deemed to be classified as “serious”.  That is, there must be a subjective assessment of the consequences of the injury for the plaintiff.  The consequences of the injury must then be considered objectively, in comparison with other comparable cases, to ascertain whether the injury can be described as “at least ‘very considerable’ and certainly more than ‘significant’ or ‘marked’”.[3]

[2][1992] 2 VR 129 (“Humphries”)

[3]Humphries at page 140

7Where pecuniary loss consequences are in issue, leave must not be granted unless the worker establishes that, at the date of the application, the worker has suffered a loss of earning capacity of 40 per cent or more, measured in accordance with s325(2)(e) of the Act,[4] and the worker will, after the date of the hearing, continue permanently to have a loss of earning capacity which will be productive of financial loss of 40 per cent or more.[5]

[4]The Act, s325(2)(e)(i)

[5]The Act, s325(2)(e)(ii)

8Section 325(2)(f) of the Act determines the calculation of the relevant loss of earning capacity by comparing the gross income the worker is earning, or is capable of earning, in “suitable employment” at the date of the hearing (“‘after  injury’ earning capacity”), and the gross income the worker was earning, or was capable of earning, in suitable employment “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’ earning capacity”).[6]

[6]The Act, s325(2)(f)

9“Suitable employment” is defined in s3 of the Act to mean:

“… employment in work for which the worker is currently suited—

(a) having regard to the following—

(i) the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, the certificate of capacity supplied by the worker;

(ii) the nature of the worker’s pre-injury employment;

(iii) the worker’s age, education, skills and work experience;

(iv)the worker’s place of residence;

(v) any plan or document prepared as part of the worker’s return to work planning process;

(vi) any occupational rehabilitation services that are being, or have been, provided to or for the worker;

(b)regardless of whether—

(i) the work or the employment is available; or

(ii) the work or the employment is of a type or nature that is generally available in the employment market.”

(c)employment in respect of which the number of hours each day or week that the worker performs work, or the range of duties the worker performs, is suitably increased in stages in accordance with return to work planning or otherwise; and

(d) employment the worker is undertaking or that is offered to the worker, regardless of whether the work or the employment is of a type or nature that is generally available in the employment market; and

(e) suitable training or vocational re-education provided by the employer, or under arrangements approved by the employer (whether or not the employer also provides employment involving the performance of work duties), but only if the employer pays an appropriate wage or salary to the worker in respect of the time the worker attends suitable training or vocational re-education.”

10The concept of “suitable employment” is defined in s5 of the Act.[7]  It:

“… looks to the possibility of employment after injury; hence the reference to ‘work for which the worker is currently suited’.  Age, education, and experience are among the matters relevant, as also are the nature, and no doubt extent, of the worker’s incapacity and, of course, pre-injury employment.  Obviously employment is not to be regarded as ’suitable’ if situated too far from the worker’s place of residence; and so, a specialist factory in Mildura will not ordinarily be regarded as providing ‘suitable employment’ for a worker resident in Melbourne.  The expression ‘whether or not that work is available’ emphasises that the definition is looking to the capacity to work, meaning the physical capacity for employment.  If the worker is of an age, is sufficiently skilled, perhaps after rehabilitation, is sufficiently close by and is able physically to do a particular job, then that is ‘suitable employment’, whether, or not, the job is currently available.”[8]

[7]The Act, s5

[8]Barwon SpinnersPty Ltd & Ors v Podolak (2005) VR 622 at 636, paragraph [25]

11In Richter v Driscoll,[9] Osborn JA said:

“…The factors listed in paragraphs (a)(i) to (iv) go to characteristics of the worker bearing on his or her employability and are not limited to physical capacities.  The factors listed in paragraphs (a)(v) and (vi) go to factors related to processes intended to facilitate a return to work either by way of work plans or rehabilitation services.  The significance of return to work is emphasised in the objects of the Act.  The outcome of these processes may or may not have been successful, but, for present purposes, these factors are relevant in that they go to the capacity of the worker to return to work in employment in the broad sense that I have sought to explain.”

[9](2016) 51 VR 95 at 135, paragraph [146]

12The defendant bears the evidentiary onus to establish the existence of jobs which satisfy the characterisation of “suitable employment” and are within the plaintiff’s ‘after-injury’ earning capacity;[10] although as the Explanatory Memorandum to the Workplace Injury Rehabilitation and Compensation Bill 2013 (Vic) makes clear, “employment may be suitable employment regardless of whether it is available in the employment market”.[11]

[10]Giankos v SPC Ardmona Operations Ltd (2011) VR 120 at paragraph [115]

[11]Explanatory Memorandum, Workplace Injury Rehabilitation and Compensation Bill 2013 (Vic), at Clause 3, page 17 “Suitable employment”

13Section 325(2)(g) of the Act further provides that a worker does not establish the loss of earning capacity if the worker has, or would have, after taking account of the worker’s capacity for suitable employment after the injury and the reasonableness of attempts to participate in rehabilitation or retraining, a capacity for any employment, including alternative employment, which would result in the worker earning more than 60 per cent of gross income from personal exertion as determined in accordance with sub-paragraph (f), had the injury not occurred.[12] 

[12]The Act, s325(2)(f) and (g)

14In addition to establishing a loss of earning capacity of 40 per cent or more measured as set out in s325(2)(f) of the Act, to meet the requirements for a “serious injury”, the plaintiff must establish that the loss of earning capacity consequences meet the narrative test of being “serious” for a physical injury and “severe” for a mental or behavioural disturbance or disorder when judged by comparison with other cases in the range of possible impairments or losses of body function.[13]

[13]Ibid

15In determining the application, the Court must make the assessment of “serious injury” at the time the application is heard[14] and must disclose the path of reasoning in dealing with the evidence and the issues raised by the application.[15]

[14]The Act, s325(2)(j)

[15]Hunter v Transport Accident Commission [2005] VSCA 1 at paragraphs [33]-[36]

16In making an assessment of the plaintiff’s “pain and suffering consequences” resulting from an injury, the Court is required to consider both the plaintiff’s experience of pain in addition to the disabling effect of the pain on the plaintiff’s physical capabilities and enjoyment of life.[16]  It may be necessary to consider the intensity, frequency and duration of the plaintiff’s pain by reference to the plaintiff’s account of the pain, what he or she does about the pain (for example medication, rest, seeking medical treatment), the medical opinions on the extent and intensity of the plaintiff’s pain, and what the objective evidence indicates about the disabling effect of the pain.[17]

[16]Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1 at 4, paragraph [9] (“Haden”)

[17]Haden at paragraphs [10]-[11]

17The extent to which pain derived from an injury impacts the plaintiff’s physical capabilities and enjoyment of life includes an assessment of the effect of pain on the plaintiff’s sleep; mobility; cognitive functioning; capacity for self-care and self-management; performance of household and family duties; recreational activities; social activities; sexual life, and enjoyment of life.[18] The disabling effects of pain may also be demonstrated by whether the plaintiff has resumed employment and, if so, what limitations there are on the plaintiff’s employment.[19]

[18]Haden at paragraph [16]

[19]Hawkins v DHL Express (Aust) Pty Ltd [2013] VSCA 26 at paragraph [63]

18The weight to be attached to the plaintiff’s account of pain will be determined by the Court’s assessment of the plaintiff’s credibility.[20]   The Court’s assessment will depend on the plaintiff’s evidence and the views expressed by examining medical practitioners about the reliability of the plaintiff’s accounts of pain.[21]

[20]Haden at paragraph [12], citing Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 (“Dwyer”) at paragraph [8]; Sejranovic v Berkeley Challenge Pty Ltd [2009] VSCA 108 at paragraph [171]); Sabanovic v Atco Controls Pty Ltd [2009] VSCA 143 (“Sabanovic”) at paragraphs [142]-[145]

[21]Haden at paragraph [12], citing Sabanovic at paragraph [142]

19Even if a plaintiff is found not to be a reliable witness, either generally or in respect of particular matters, this does not require all medical opinions to be automatically disregarded.  Assessment of the “seriousness” of the consequences of an injury involves matters of degree, impression, and a value judgement[22] as to relative incapacity.  The assessment is made by consideration of the whole of the evidence,[23] including objective evidence of diagnostic tests which are unaffected by a plaintiff’s credit.[24]  The Court must try to place a particular claimant’s injury within a spectrum of seriousness of injuries.[25]

[22]Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592 at 628, paragraph [192]; see also Sabo v George Weston Foods [2009] VSCA 242 at paragraph [67]

[23]Victorian Workcover Authority vPapaconstantinou [2021] VSCA 145 at paragraph [58] citing Yirga-Denbu v Victorian WorkCover Authority (2018) 57 VR 545 at 573, paragraph [89]

[24]Cakir v Arnott’s Biscuits Pty Ltd [2007] VSCA 104 at paragraph [49]; Petrovic v Victorian WorkCover Authority [2018] VSCA 243 at paragraph [76]; Pulling v Yarra Ranges Shire Council [2018] VSC 248 at paragraph [51]; Ryan v Bunnings Group Limited [2020] ACTSC 353 at paragraphs [27]-[29], quoting Mason v Demasi [2009] NSWCA 227 at paragraphs [2]-[4]

[25]Haden

The evidence

20The plaintiff relied on an affidavit of the plaintiff sworn on 9 August 2024, a further affidavit of the plaintiff sworn on 13 May 2025, and an affidavit of Thomas Henry Whelan affirmed on 16 May 2025.  Additionally, the plaintiff relied on medical reports and other documents contained in extracts from the Plaintiff’s Court Book, and the Australian Lamb (Colac) Pty Ltd Enterprise Agreement 2022. 

21The defendant relied on extracts from the Defendant’s Court Book containing various documents and medical reports, and on extracts from the Defendant’s Amended Supplementary Court Book containing a Worker’s Injury Claim Form dated 21 September 2023, a firearms licence application form dated 28 February 2025 and extracts from various clinical records. 

Background

22The plaintiff was born in September 1958 and at the date of the hearing, was sixty-six years old.  Currently, the plaintiff lives with his partner in East Gippsland.

23The plaintiff is divorced with three children, one of whom is deceased.  He has five grandchildren.

Education

24The plaintiff finished secondary school at Watsonia Technical School and then completed a fitter and turner apprenticeship.  The plaintiff also obtained a restricted electrical licence. 

Employment history

25The plaintiff worked as a maintenance fitter for various employers.

26In January 2021, the plaintiff commenced work for the employer as a maintenance fitter.  He worked on a full-time basis and worked overtime hours each week.

Medical history

27The plaintiff’s medical history included an injury to his right arm at work in 1991, in respect of which he underwent surgery.  The plaintiff also sustained work-related hearing loss in 1993 and dental injuries in 2011. 

28In 1998, the plaintiff injured his back.  The plaintiff said the injury resolved and did not cause him any ongoing issues. 

Circumstances of injury

29On 11 June 2022, the plaintiff sustained the injury to his lower back the subject of this application. The injury occurred while the plaintiff was completing work in the lamb stockyards on a lamb restrainer.  The plaintiff backed down the steps on one side of the lamb restrainer from an unfixed platform, which had been placed over the race.  As the plaintiff stepped backwards, the platform swung upwards, causing the plaintiff to fall backwards and collide with the wall behind him.  The steps were pressed into his chest.

30The plaintiff described experiencing immediate pain from his tailbone up to the middle of his back.  The plaintiff reported the incident to his manager and later took some painkillers from his local pharmacy. 

Subsequent events and medical treatment

31Over the following week, the plaintiff went on a pre-planned fishing trip to Gippsland with some friends.  The plaintiff said his back developed a black bruise and was swollen, which was confirmed by his relative, Mr Whelan. 

32On 22 June 2022, when the plaintiff returned from the fishing trip, the plaintiff attended the Belmont Bulk Billing Clinic.  The medical record reflected that the plaintiff –

“fell onto back a week ago at work, some swelling

works at a meatworks, fell backwards off a ladder onto a c pearlon

large fluctuant mass over lumber region,

refer for uss guided aspiration

Reason for visit:

Haematoma

Actions:

Imaging request printed to Lake Imaging: uss +/- guided aspiration of lump over lumbar region (trauma about a week ago, large fluctuant mass over lumbar region,? haematoma).

… .”

(sic.)

33The plaintiff was referred for an ultrasound of the soft tissues in his back.

34The plaintiff underwent the ultrasound - soft tissues on 27 June 2022.  The clinical indications of the ultrasound were that it was one week post trauma and there was a large fluctuant mass over the plaintiff’s lumbar region.  The report indicated the findings were suggestive of haematoma.

35The results the ultrasound - soft tissues on 27 June 2022 were reported as follows:

“ Sonographic assessment of the left gluteal region demonstrates a moderate sized subcutaneous collection measuring 80 x 87 x 33mm (100cc).  It is heterogeneous in appearance with internal solid and fluid components. Findings are suggestive of a resolving/organising haematoma.  No abnormal vascularity on colour Doppler.  Mild stranding of the surrounding subcutaneous fat.  Findings were discussed with the patient and given that his clinical symptoms have significantly improved and he is not on any anticoagulation, ultrasound guided drainage has not been performed today.”

36The plaintiff’s doctor considered performing a procedure to drain the fluid in the plaintiff’s back, but, decided against it.  In accordance with the doctor’s advice that the fluid may take up to a year to dissipate and for the pain to resolve, the plaintiff let the injury run its course.

37The plaintiff returned to work.  After the plaintiff returned to work, the plaintiff said that he continued to experience persistent pain in his lower back, which he tried to manage by taking Voltaren Rapid, 25 tablets, and using Voltaren Gel.  According to Thomas Whelan, the bruising and swelling persisted for many months.  The plaintiff found it difficult to complete his work duties, but he did his best. 

38On 11 May 2023, the plaintiff slipped over while walking through flooded water at work.  The plaintiff’s feet went from under him, and he fell to the ground, landing mainly on his side, bracing himself with his hands.  The plaintiff said the slip did not make much of a difference to his pain levels. 

39The plaintiff continued working while experiencing back pain.

40On 27 June 2023, the plaintiff was stood down from work for seven or eight days following an incident which occurred at a toolbox meeting.

41On 4 July 2023, the plaintiff was given a final warning from his employer in relation to his employment.

42The plaintiff may have had a further day off and then he returned to work.

43On 7 July 2023, the plaintiff attended a general practitioner, Dr Nasrin Maleque, at the Grovedale Medical Centre.  In that consultation, Dr Maleque reported:

“Had a fall at work 18 months ago, fell of[f] ladder and landed on back.

Went to different clinic that time.
Had scan that time had to take fluid out from back, then said let make in go by its course
Since then still got pain and taking pain medication.
taking voltaren rapid 25 mg 2 tab when required.

pain is just in the lower leg, sometime[s] gets hip pain and numbness in feet.”

(sic.)

44The plaintiff was referred for an MRI scan of his lower back.

45On 8 July 2023, the plaintiff attended Janine Burt, a local Bowen therapist, for Bowen therapy for his lower back pain.  Ms Burt identified that the plaintiff had advised her that he had fallen at work, and the fall had impacted his lower back.  Ms Burt suggested the plaintiff obtain x-rays of his back before she would treat him.

46On 13 July 2023, the plaintiff underwent an MRI scan of the lumbar spine.  The scan report identified several lumbar disc bulges.  The findings were:

“Lumbar and lower dorsal spondylotic changes are seen evident by osteophytic lipping of the vertebral endplates and reduced heights and normal bright T2 signal of the intervertebral discs.  Modic type 2 degenerative marrow changes are seen at D11-12, L2-3 and L3-4 opposing endplates. 

No evidence of vertebral fracture/collapse.

L1-2 shallow posterior disc bulge is seen flattening the theca.  No significant neural foraminal compromise. 

L2-3 diffuse posterior disc bulge is seen flattening the theca and encroaching on the lower portions of the related neural foramina.  There is mild focal spinal canal narrowing at this level. 

L3-4 diffuse posterior disc bulge is seen flattening the theca and encroaching on the lower portions of the related neural foramina more on the left side where it is seen abutting the exiting L3 nerve root.  The degenerative changes of the facet joints add more to the neural foraminal narrowing more on the left.  There is mild focal spinal canal narrowing at this level. 

L4-5 diffuse posterior disc bulge is seen compressing the theca and encroaching on the related neural foramina.  The bilateral foraminal compromise is aggravated by the hypertrophied facet joints with bilateral indentation of the exiting L4 nerve roots relatively more on the right side.  There is moderate focal spinal canal stenosis at this level secondary to the bulging disc, the hypertrophied facet joints and the thickened flava ligaments.

T12 and L2 vertebral bodies haemangioma is noted.  No marrow infiltrative lesions.

Normal MRI signal of the conus medullaris.

No para-spinal soft tissue masses or collection. 

The para-spinal muscles show normal bulks and signal patterns.

Conclusion:

Lumbar and lower dorsal spondylotic changes. 

No vertebral fractures or malalignment. 

No collections. 

Multilevels disc lesions with variable degrees of neural foraminal and spinal canal narrowing as described.”

(sic.)

47The conclusion from the MRI scan of the lumbar spine was that the plaintiff had lumbar and lower dorsal spondylotic changes.  There were no vertebral fractures and no malalignment or collections.  There were multilevel disc lesions with variable degrees of neural foraminal and spinal canal narrowing.

48Following the MRI scan, Dr Maleque certified the plaintiff unfit for work and recommended the plaintiff undergo physiotherapy treatment, which was available to the plaintiff through the employer. 

49The plaintiff’s employer did not offer him alternate duties or re-training.  Nor was the plaintiff provided with occupational rehabilitation assistance.

50On 21 September 2023, the plaintiff submitted a WorkCover claim.  The plaintiff told Dr Horsley, occupational physician, that after the claim was submitted, he was treated “very differently” by his employer.

51The plaintiff continued to suffer from back pain. 

52On 9 February 2024, Dr Maleque certified the plaintiff as unfit to return to his pre-injury duties at the workplace of his employer or another employer.  The plaintiff’s incapacity was considered permanent.  Dr Maleque noted in the Change in Capacity Questionnaire to GP that the plaintiff had a “MRI scan done on 13/7/2023 which shows lumbar and lower dorsal spondylotic changes.  Multilevel disc lesions with variable degrees of neural foraminal and spinal canal narrowing.” The questionnaire noted the plaintiff was “still getting back pain”.

53In a letter dated 16 February 2024, Dr Maleque identified that the plaintiff had attended at the Grovedale Medical Centre on 7 July 2023.  The letter noted the consultation was –

“… regarding back pain postfall from ladder at work 18 months ago.  We did a MRI 16/07/2023 which showed lumbar and lower dorsal spondylotic changes.  Multilevel disc lesions with variable degrees of neural foraminal and spinal canal narrowing. 

Darryl is still suffering from back pain and it hasnt improved.

Darryl is not fit for his duites due to back pain. 

He is seeing physiotherapist, doing remedial massage and taking pain medicaiton pm.

Darryl has attended this clinic since then dates includes 21/7/2023, 25/09/2023, 10/10/2023, 20/10/2023, 17/11/2023, 11/11/2023, 13/12/2023, 05/01/2024, 12/01/2024, 29/01/2024, 09/02/2024.”  

(sic.)

54On 26 February 2024 and on 14 October 2024, Dr Maleque wrote further letters to the same effect confirming the plaintiff was unfit for work.

55The plaintiff was terminated from his employment on 30 October 2024.  The termination letter from his employer stated:

“We have considered if there are any reasonable adjustments which could be made that would enable you to perform the inherent requirements of your role.  We are satisfied there are no reasonable adjustments that can be made.  … we regret to advise you that ALC has no option but to give you notice that your employment will be terminated.”

56The plaintiff subsequently underwent physiotherapy treatment with Mr Greg McLennan on a weekly basis.  The plaintiff had Bowen therapy from time to time and up to the date of his first affidavit, sworn 9 August 2024, the plaintiff was taking Clonac and Panadeine Forte to manage his pain.

57The plaintiff subsequently continued having physiotherapy treatment with Mr Greg McLennan until late 2024, when he moved house. 

58On 17 January 2025, Dr Maleque wrote a letter addressed to “whom it may concern”, which confirmed her earlier opinion, that the MRI dated 16 July 2023 showed lumbar and lower dorsal spondylotic changes, and multilevel disc lesions with variable degrees of neural foraminal and spinal canal narrowing.  The letter continued:

“This findings from MRI might be there before his injury but post fall at work aggrravets his back pain issues.”

(sic.)

59After moving to his current residence at the end of 2024, the plaintiff began having physiotherapy treatment with Ms Mia Fuentes at Gippsland Physiotherapy on 12 February 2025.  The plaintiff continues to have treatment with Ms Fuentes on a weekly basis.  In Ms Fuentes’ report dated 23 May 2025, she diagnosed the plaintiff with chronic lower back pain.

Parties’ submissions

Plaintiff’s submissions

60The plaintiff submitted that first, he had suffered a compensable injury, namely a permanent aggravation of lumbar spondylosis. 

61Secondly, the plaintiff submitted he was a credible witness.  He was unsophisticated and understated and gave evidence in a straightforward manner.  The plaintiff presented as stoic. He got on with life by returning to work.  The injury suffered by the plaintiff should not be viewed as any less serious because he managed to remain more active than might have been expected given his claimed level of pain.[26]  The plaintiff was a witness of truth.

[26]Haden at paragraph [13], citing Dwyer at paragraph [3]

62Thirdly, the plaintiff contended that the pain and suffering consequences of his injury exceeded the required threshold to establish a “serious injury”.  The plaintiff had constant low back pain which he managed with physiotherapy and ongoing prescription medication.  The plaintiff’s sleep was disrupted, and he had prematurely lost his employment in a job he loved, which had ended his working life.  The plaintiff’s ability to enjoy leisure activities and hobbies such as hunting, fishing and walking had been affected.  The plaintiff’s injury had impacted his activities of daily living including his ability to put on his shoes and socks and to do heavier household duties and gardening. 

63Even if, as the defendant contended, the plaintiff did not immediately seek medical treatment in respect of his lower back, that did not alter the seriousness of his consequences. The plaintiff’s failure to seek immediate medical treatment was able to be explained.  In June 2022, the plaintiff was told his injury would run its course over twelve months and so he waited to enable the injury to recover.  Over the following year, despite taking the anti-inflammatory medication, the plaintiff’s injury continued to trouble him.  He sought medical advice from his general practitioner.  The plaintiff then followed the advice of the doctor who certified him unfit for work. 

64Any suggestion the plaintiff should have attended pain management was misguided.  No doctor had opined that undergoing pain management would restore the plaintiff’s function or enable him to return to his pre-injury duties.  Further, attendance at pain management, given the location of the plaintiff’s residence, would likely have required him to travel, which would have increased his symptoms.  At the plaintiff’s age, it was perfectly reasonable for him to manage his condition in the way he did.

65Fourthly, the pecuniary loss consequences of the plaintiff’s impairment constituted a “serious injury”.  The plaintiff had no capacity to return to his pre-injury employment as a maintenance fitter. 

66The plaintiff’s evidence was that after June 2022, he continued working, but he did so with difficulty, taking Voltaren Rapid 25 to ease his pain. 

67By September 2023, the plaintiff said his pain was extreme and he was unable to continue in his job with the employer. The plaintiff went to see his doctor, who examined his back and certified him unfit for work.  The plaintiff’s evidence was he would have worked to age seventy but for his injury and the fact that in October 2024, his employment was terminated.  Since October 2024, the plaintiff had required an increase in treatment including physiotherapy and Bowen therapy.  The plaintiff was now taking Panadeine Forte, Clonac and Celebrex; a combination of prescription pain-relief and anti-inflammatory medication.  The suggestion that the plaintiff retired and made no effort to return to work was incorrect.  The plaintiff was forced into early retirement because of the injury as he wanted to work to age seventy.

68The plaintiff’s employer advised the plaintiff to lodge a WorkCover claim; however, after providing that advice to the plaintiff, and the submission of the WorkCover claim, the employer did not provide the plaintiff with other suitable employment or retraining.  When the employer terminated the plaintiff’s employment in October 2024, the letter of termination indicated there were no reasonable adjustments which could have been made for the plaintiff which would have enabled him to perform the inherent requirements of his role.  That indication suggested the employer did not consider the plaintiff was able to perform the requirements of his role as a maintenance fitter.  If the plaintiff was unable to perform the role of maintenance fitter for his employer, he could not do so on the open market.

69Each of the medical experts considered the plaintiff had no capacity to return to his pre-injury duties.  On 14 October 2024, Dr Maleque, the plaintiff’s general practitioner, opined that the plaintiff was still suffering from back pain which had not improved, and he was not fit for duties.  Professor Bittar considered the plaintiff was incapacitated in respect of his pre-injury duties and suitable employment due to his work-related lumbar spine condition.  Professor Bittar opined that the plaintiff continued to experience muscle spasms in his mid to lower lumbar region and that the plaintiff’s injury on 11 June 2022 remained a significant contributing factor to the plaintiff’s condition.  Dr Horsley also considered the plaintiff’s ongoing mechanical back pain prevented him from realistically returning to the workforce as a maintenance fitter.  The critical physical demands of the role were permanently beyond the plaintiff’s physical capacity. Mr Barmare and Dr Yong considered the plaintiff did not have capacity to perform pre-injury duties. 

70If the plaintiff had no work capacity, it followed that he had suffered the requisite loss of earning capacity of more than 40 per cent as required by s325(2)(e) of the Act measured in accordance with s325(2)(f).

71Fifthly, even if the plaintiff had retained some residual capacity, the plaintiff had no capacity for suitable employment.  None of the jobs proposed by the defendant in the CoWork Vocational Assessment & Labour Market Analysis Report dated 6 April 2025 (“CoWork report”) constituted suitable employment, namely, boat or caravan salesperson, spare parts interpreter or maintenance scheduler.  Each of those occupations was a job which the plaintiff would be incapable of performing.  Further, based on the plaintiff’s age, experience and place of residence, those jobs were not “suitable employment”. 

72Additionally, the preponderance of the medical evidence did not support the conclusion that the plaintiff would be capable of working in suitable employment.  Professor Bittar did not consider the plaintiff had any capacity for suitable employment.  Dr Horsley did not consider the plaintiff to be a candidate for re-deployment.  Mr Barmare considered the plaintiff had some capacity for modified duties with restrictions including sitting for no more than an hour or two, taking breaks, not lifting over 5 to 10 kilograms, and not kneeling, bending or squatting. However, Mr Barmare’s opinion glossed over what the plaintiff said about the nature and extent of his symptoms and excluded the difficulties and increased pain the plaintiff experienced when performing tasks such as bending, lifting, kneeling or squatting.  Dr Yong identified jobs which he thought the plaintiff would be capable of performing.  However, even the jobs Dr Yong recommended as suitable employment for the plaintiff, would have been very difficult for the plaintiff to undertake because of the need to accommodate restrictions to take account of the nature and extent of the plaintiff’s pain.

73Additionally, even if the plaintiff had some residual earning capacity, before a job would be considered “suitable employment”, consideration had to be given to other matters such as age, experience, and where the plaintiff lived.  When those matters were considered, none of the proposed jobs constituted “suitable employment” for the plaintiff. 

74Sixthly, if any of the jobs proposed did constitute “suitable employment”, the plaintiff nevertheless suffered a loss of earning capacity of more than 40 per cent based on comparable earnings for the jobs identified by the defendant in the CoWork report as constituting “suitable employment”. 

75The plaintiff’s pre-injury earning capacity was $128,190 which was based on the plaintiff’s demonstrated earning capacity in 2023 over a full financial year, together with 3 per cent annual incremental rises in the plaintiff’s income on the amount he earned in the prior year.  The plaintiff was never challenged about the hours of overtime he worked, but even if the overtime hours were sporadic or changed from year to year, nothing turned on that.  Sixty per cent of $128,190 is $76,914 gross per year or $1,479.12 gross per week. 

76The plaintiff was not disentitled from recovering under s325(2)(e) of the Act by reason of s325(2)(g) of the Act. 

Defendant’s submissions

77The defendant submitted that first, the plaintiff had a persisting injury which related to the incident on 11 June 2022.  Namely, a chronic musculoligamentous dysfunction.  The defendant also submitted that Dr Yong had diagnosed the plaintiff as having a psychological comorbidity that could impact on the recovery of the plaintiff’s physical condition. 

78Secondly, the plaintiff was not a reliable witness, and he exaggerated the extent of his injury.  The plaintiff continued to work in his full-time role and performed overtime work from the date of his injury on 11 June 2022, up to the date he ceased employment with the employer on 21 September 2023.  The plaintiff would have continued working and would not have made a WorkCover claim if he had not suffered a further injury and been advised by the employer that it could no longer pay his medical expenses or allow him to work overtime.  This was consistent with what the plaintiff said to the doctors at the Grovedale Medical Centre in 2023.

79The plaintiff was certified fit for work on 22 June 2022.  The following week, the sonographer reported that his symptoms had “significantly improved”.  The plaintiff agreed in cross-examination that there had been no need for him to seek any treatment in the intervening period until sometime in mid-2023 although he did take over-the-counter anti-inflammatory medication.

80The plaintiff was unwilling to undergo pain management treatment, evidenced by the records of the plaintiff’s attendance on Dr Martins Owolabi, general practitioner, at Capstone Medical Centre in Bairnsdale, in April 2025. 

81There were a number of aspects of the CoWork report which were inconsistent with the plaintiff’s evidence.  In several instances, the plaintiff refused to accept what was recorded in the CoWork report as having been said by him contemporaneously.  The CoWork report identified that the plaintiff had remained seated for the duration of the 150-minute interview with CoWork.  When asked about this, the plaintiff suggested he had taken pain medication.  However, the CoWork report noted that while the plaintiff said he took Panadol Osteo, he had not taken it that day. 

82There was no report from the plaintiff’s general practitioner or his previous physiotherapist, Mr McLennan at Kiewa Valley Sports & Spinal Physiotherapy, to support the extent of the pain the plaintiff claimed to suffer.

83Further, the plaintiff’s partner had not sworn an affidavit in support of his application. 

84Thirdly, even if the plaintiff’s evidence was credible and reliable, the plaintiff had not suffered the requisite loss of earning capacity to give rise to a serious injury.  The plaintiff continued to work in his pre-injury employment after he was injured.  This required an explanation, but none had been provided.

85Fourthly, even if the plaintiff was now unable to work in his pre-injury employment, consistent with the opinions of Dr Yong and Mr Barmare, the plaintiff had retained a capacity to work in suitable employment on a graduated full-time basis, as a spare parts interpreter, maintenance scheduler, or as a boat or caravan salesperson.  Dr Horsley’s opinion that the plaintiff was not a re-deployment candidate should be rejected on the basis that, Dr Horsley did not engage with the question whether the suggested roles put forward by CoWork, constituted “suitable employment”. 

86Fifthly, if the plaintiff had no capacity to work in suitable employment, he had not made reasonable attempts to participate in rehabilitation or retraining as required by s325(2)(g) of the Act. The plaintiff was therefore not entitled to receive the benefit of failing to undertake retraining. Consequently, the plaintiff was unable to establish the loss of earning capacity required by paragraph s325(2)(b) of the Act.

87Sixthly, if the plaintiff had a retained earning capacity, and it were to be exercised, the plaintiff’s retained earning capacity would result in him earning more than 60 per cent of the gross income he was earning, or was capable of earning, before he was injured, as determined in accordance with s325(2)(f) of the Act.  Therefore, the plaintiff had not suffered the requisite loss of earning capacity.

88The figure that most fairly reflected the plaintiff’s “without injury” earning capacity[27] was the amount the plaintiff earned in the financial year ended 30 June 2023, being the full financial year after he was injured.  That figure was $120,934.  The plaintiff’s “without injury” earning capacity should not take account of the plaintiff’s overtime hours.  Pursuant to s335(5) of the Act, the onus was on the plaintiff to establish the requisite loss in relation to overtime.  The plaintiff’s overtime hours were variable which was reflected in his overall earnings. 

[27]The Herald & Weekly Times Limited & Victorian WorkCover Authority v Jessop [2014] VSCA 292 (“Jessop”) at paragraph [37] quoting Acir v Frosster Pty Ltd [2009] VSC 454 (“Acir”) at paragraph [165]

89The defendant submitted that 60 per cent of $120,934 was $72,578.40[28] or $1,395.74 per week.  It was submitted that for the occupations identified in the CoWork report, the plaintiff was unable to establish the requisite loss of earning capacity, even assuming a graduated return to work on a full-time basis, which Dr Yong suggested was possible.  A motor vehicle parts interpreter/automotive parts salesperson had average gross weekly earnings of $1,562.  A maintenance scheduler had average gross weekly earnings of $1,900.  A boat or caravan salesperson had average gross weekly earnings of between $1,450 to $1,962. 

[28]Sixty per cent of $120,934 is in fact $72,560.40 or $1,395.39 per week

90Seventhly, even if the plaintiff was otherwise able to demonstrate an entitlement to claim damages for loss of earning capacity, the plaintiff should nevertheless fail because the Court could not be satisfied the plaintiff would have been earning at the date of trial.  The plaintiff was undertaking heavy and onerous work, and it was likely the plaintiff would have ceased working in any event.[29]

[29]Cuturic v Spotless Facility Services Pty Ltd [2018] VCC 889 (“Cuturic”) at paragraph [33](i).

91Eighthly, the consequences to the plaintiff with respect to pain and suffering of the plaintiff’s physical injuries were not such that the plaintiff suffered a serious injury. 

92After the plaintiff was injured on 11 June 2022, he received no immediate medical or physiotherapy treatment for his injury.  The plaintiff was certified fit for full-time employment from 22 June 2022.  The plaintiff underwent some physiotherapy in July 2023 and was taking over-the-counter anti-inflammatory medication, but otherwise he received no treatment.  That remained the situation until the plaintiff was put off work at the end of September 2023.  Since then, the plaintiff has been taking some prescription medication, but not daily.

93Even if the plaintiff’s account of his pain and dysfunction was reliable and accurate, his condition would not have been as serious as he claimed if he had undergone the treatment which had been suggested to him.  The physiotherapists recommended a home-based core strengthening program.  Dr Yong recommended participation in a graduated exercise program.  Professor Bittar and Mr Barmare recommended the plaintiff participate in pain management treatment. 

94When considering the plaintiff’s evidence about his pain, it was necessary to consider what he did about his pain.  The plaintiff said when cross-examined that he did not want to undergo pain management.  He thought he coped better with his pain on his own.  The plaintiff’s evidence should be rejected because there was no report from the plaintiff’s general practitioner to that effect.  Further, the evidence did not support the level of pain claimed by the plaintiff.  The plaintiff retained significant capacity in relation to his daily activities and hobbies.  Even Dr Horsley formed an opinion that camping and fishing were things the plaintiff had still been able to do since his injury.

95It is hard for the plaintiff to demonstrate the necessary loss.  Even if the plaintiff’s impairment consequences were moderate, they were not serious. As CoWork described in the CoWork report, and the plaintiff accepted was “somewhat accurate”, the plaintiff was “driving locally and long distances, he (got) out to rest after about one hour of driving.  He enjoy[ed] a full social life and (was) a member of his local angling club.  He spends time tinkering in his shed, visiting family and friends, going antique shopping with his partner, going out for meals, fishing in his boat and camping in his Tvan camping trailer.”

96Finally, the material raised issues of the permanence of the consequences to which the plaintiff deposed.

Medico-legal evidence in relation to the Plaintiff’s lumbar spine

97There was consensus that the plaintiff suffered a low back injury on 11 June 2022.  The issue was the nature and the extent of the injury.

Mr Arshad Barmare, consultant orthopaedic surgeon

98Mr Barmare prepared a medico-legal report dated 18 October 2024 and conducted an examination of the plaintiff on 11 October 2024.

99Mr Barmare took a history of the plaintiff’s injury.  He identified that the plaintiff ceased working in September 2023 but remained on his employer’s payroll at the date of the report.  The plaintiff continued to receive weekly physiotherapy and to take painkillers as required.

100Mr Barmare observed on examination that the plaintiff’s main complaint was low back pain, which was affecting kneeling, bending and squatting.  There was no radiation of the plaintiff’s pain to his legs.  There was no claudication, and no bowel or bladder symptoms.  The plaintiff reported that he had difficulty lifting more than 5 kilograms and could not drive for more than two hours.  The plaintiff’s pain increased in intensity at night, and his average pain level was 7/10, reaching up to 9/10 during the night.

101Mr Barmare said the plaintiff’s physical signs matched his reported symptoms.  The plaintiff was tender over the lower lumbar spine in the L5-S1 region.  The plaintiff had no paraspinal muscle spasm.  The plaintiff’s spine flexion was to 50 degrees, extension to 20 degrees, spinal rotation to the left was 40 degrees, and spinal rotation to the right was 30 degrees.  The plaintiff’s straight leg raise was free, and his power, sensation and reflexes were normal.  The plaintiff’s hips and knees were supple.  The plaintiff could stand on his tiptoes and heels, although there was pain associated with heel standing.

102The plaintiff’s main problem was pain, in respect of which Mr Barmare recommended the plaintiff would benefit from a multidisciplinary approach in the form of pain management, a back care program, as well as hydrotherapy to improve his overall core strength.

103Mr Barmare opined that the plaintiff suffered from chronic musculoligamentous dysfunction because of the incident on 11 June 2022.  There was no evidence of bony injury or neurological deficit.

Professor Bittar, neurosurgeon

104Professor Bittar prepared a medico-legal report on behalf of the plaintiff.  The report was dated 1 February 2025 and followed an examination of the plaintiff on the same day.

105Professor Bittar took a medical, educational, occupational and social history from the plaintiff, together with a history of present medical complaints and current treatment.  Professor Bittar identified that the plaintiff was taking paracetamol 500 milligrams/codeine as needed; Diclofenac twice a day and Oxycodone three times a day as needed. 

106Professor Bittar examined the plaintiff and observed on examination that the plaintiff:

“… had moderate restriction of lumbar spine flexion and mild restriction of lumbar spine extension.  Flexion of his lumbar spine was more painful than extension.  He had bilateral lumbar paravertebral tenderness and muscle spasm in the mid and lower lumbar region. 

Straight leg raising was normal bilaterally. 

Neurological examination of his lower limbs did not reveal any evidence of radiculopathy or myelopathy, and there was no abnormal illness behaviour.

… .”

107Professor Bittar opined that the plaintiff had aggravation of lumbar spondylosis which occurred at work on 11 June 2022 and remained a significant contributing factor to his condition.

108Professor Bittar recommended that the plaintiff continue his current treatment regime.  Professor Bittar noted however, that the plaintiff’s preference was for a non-interventional treatment approach with modification of activities to minimise symptoms.  If the plaintiff wanted to pursue a more aggressive treatment approach, Professor Bittar recommended assessment by a pain specialist and a neurosurgeon following further investigation with a nuclear medicine scan.  Professor Bittar thought it unlikely that spinal surgery would be indicated in the plaintiff’s case.

Did the Plaintiff have a compensable injury?

109The plaintiff’s evidence was that his lawyers had shown him a claim form for an incident where he was said to have hurt his back in 1998.  The plaintiff said he had no recollection of that incident, and he did not recall any ongoing issues.  That evidence was not challenged.  I accept that if the plaintiff had an earlier back injury, it fully resolved.

110Further, there was also a lack of evidence to suggest that even if the plaintiff had a degenerative condition in his lower back, that the condition was symptomatic immediately prior to the incident on 11 June 2022. 

111In the absence of evidence suggesting the plaintiff’s lower back lumbar spondylosis was symptomatic immediately prior to the incident on 11 June 2022, I find the plaintiff had asymptomatic lumbar spondylosis immediately before the incident on 11 June 2022. 

112I accept that on 11 June 2022, the plaintiff was injured. 

113The plaintiff experienced immediate and persistent pain in his lower back following the incident on 11 June 2022, which he tried to manage by taking Voltaren Rapid (25 tablets), and using Voltaren Gel.

114The plaintiff told Dr Horsley that following the incident, “there was immediate pain from his tailbone to the middle of his back”.  The plaintiff was “unable to do much because of the bruising and swelling”.  This conclusion was consistent with what was recorded in the CoWork report that, “due to ongoing bruising and swelling in his lower back, [the plaintiff’s] GP referred him for an ultrasound of the soft tissues of his back”.  Further, Professor Bittar opined in his report dated 1 February 2025, that there was bilateral lumbar paravertebral tenderness and muscle spasm in the mid and lower lumbar region.  There was also evidence from the plaintiff’s relative, Mr Whelan, that the bruising lasted over eight months.

115The notes recorded by the plaintiff’s general practitioner on 22 June 2022 identified that there was a “large fluctuant mass” over the plaintiff’s “lumbar spine region” which required action.  The notes recorded, “lump over lumbar region (trauma about a week ago, large fluctuant mass over lumbar region,? haematoma)”. 

116The findings on ultrasound on 27 June 2022 were of a “moderate sized subcutaneous collection measuring 80 x 87 x 33mm (100cc)” which was “heterogenous in appearance with internal solid and fluid components” and which were “suggestive of a resolving/organising haematoma”. 

117The presence of a large haematoma was consistent with the matters described by the plaintiff’s treating doctors and medico-legal experts.

118On 11 May 2023, the plaintiff slipped over in some water at work.  The plaintiff fell onto his side and braced himself with his hands as he fell.  It was suggested to the plaintiff in cross-examination that the slip caused an increase in the plaintiff’s symptoms.  Although the plaintiff agreed he fell, he said slipping at work in 2023 did not cause any significant increase in his back symptoms.  I accept his evidence.  First, it was not challenged further.  Second, it was consistent with the plaintiff continuing to work subsequently.  Further, when the plaintiff did seek medical assistance, he told the general practitioner that the reason for the consultation was because of the back injury he sustained in the fall on 11 June 2022.  I do not accept the fall in May 2023 caused an increase in the plaintiff’s symptoms.  If it did, it was temporary and any pain the plaintiff continued to experience at the date of the hearing was the result of the original fall on 11 June 2022. 

119Having considered all the evidence, I am satisfied that the incident on 11 June 2022 caused the aggravation of the plaintiff’s previously asymptomatic lumbar spondylosis.  This resulted in lower dorsal spondylotic changes and posterior disc bulges at L1-2, L2-3, L3-4 and L4-5 with variable degrees of neural foraminal and spinal canal narrowing, resulting in the plaintiff’s pain and dysfunction.  The foraminal compromise was aggravated by the hypertrophied facet joints with bilateral indentation of the exiting L4 nerve roots relatively more on the right side.  There was also moderate focal spinal canal stenosis at that level secondary to the bulging disc.

120I reached this conclusion for several reasons.

121First, Professor Bittar’s opinion is consistent with the plaintiff’s presentation upon examination.  Professor Bittar observed the plaintiff to have bilateral lumbar paravertebral tenderness and muscle spasm in the mid and lower lumbar region whereas Mr Barmare did not.  However, Professor Bittar’s examination was more recent than the examination of Mr Barmare.

122Secondly, a finding that the plaintiff suffered an aggravation of lumbar spondylosis was supported by the radiological evidence.  After the incident on 11 June 2022, the plaintiff developed a haematoma as indicated.  In the initial ultrasound - soft tissues taken on 22 June 2022 the haematoma was described as a “moderate sized subcutaneous collection measuring 80 x 87 x 33mm (100cc)”.  It had “internal solid and fluid components”.  Although the plaintiff’s symptoms were described in the result of the ultrasound as “significantly improved”, the collection remained large enough to warrant the description “large fluctuant mass” in the Belmont Medical Centre notes of the consultation with the plaintiff on the same day.  The evidence also revealed that there was substantial swelling and bruising as seen in the photograph of the plaintiff’s lower back taken on 11 June 2022.  Both the presence of the haematoma, and ongoing swelling, provide an explanation for some of the changes evident on the MRI scan of the lumbar spine taken on 13 July 2023.

123The MRI scan of the lumbar spine taken on 13 July 2023 reported “lumbar and lower dorsal spondylotic changes”.  Although there were no paraspinal soft tissue masses or collections noted on that MRI scan of the lumbar spine, there were disc bulges which were seen to flatten the theca at L1-2, L2-3, L3-4 and L4-5.  At L3‑4, the disc bulge was seen encroaching on the lower portions of the neural foramina and abutting the exiting L3 nerve root.  At L4-5, there was a disc bulge which was seen to be compressing the theca and encroaching on the neural foramina.  There was also bilateral indentation of the exiting L4 nerve roots.  The spinal canal stenosis at that level was said to be secondary to the bulging disc.  The presence of bulging discs abutting and compressing nerve roots provides an objective explanation for the plaintiff’s pain and is readily understood in the context of the injury the plaintiff suffered on 11 June 2022. 

124Thirdly, the conclusion that the plaintiff suffered an aggravation of previously asymptomatic lumbar spondylosis in the incident on 11 June 2022 is not inconsistent with the observations the plaintiff made to the medical professionals who examined him for the purposes of this proceeding. 

125Fourthly, a finding that the plaintiff suffered aggravation of previously asymptomatic lumbar, lower dorsal spondylotic changes, posterior disc bulges at L1-2, L2-3, L3-4 and L4-5 with variable degrees of neural foraminal and spinal canal narrowing, resulting in the plaintiff’s pain and dysfunction, makes sense given the mechanism by which the plaintiff sustained injury.  As the plaintiff stepped backwards, the platform swung upwards, causing him to fall backwards and collide with the wall behind him with the steps pressed into his chest.  The plaintiff described experiencing immediate pain from his tailbone up to the middle of his back.  The finding also explains why the plaintiff was not experiencing pain and dysfunction before the incident on 11 June 2022 but continued to do so up to the date of the hearing.

126Further, although Mr Barmare said the plaintiff was presenting with musculoligamentous dysfunction, it was unclear whether that was in fact a diagnosis or simply an observation about the plaintiff’s presentation.  However, even if it was a diagnosis, because both Professor Bittar and Mr Barmare accepted the plaintiff had a degenerative condition in his spine, if Mr Barmare’s opinion was to be preferred, I would have to be satisfied that the symptoms the plaintiff experienced were more probably caused by musculoligamentous dysfunction than by degenerative changes to his spine as a result of the incident on 11 June 2022.  The report did not provide any reasoning for Mr Barmare’s opinion.  The only sensible conclusion is that the plaintiff suffered an aggravation of previously asymptomatic lumbar and lower dorsal spondylotic changes and posterior bulges at L1-2, L2-3, L3-4 and L4-5 with variable degrees of neural foraminal and spinal canal narrowing, resulting in the plaintiff’s pain and dysfunction.

127Finally, I do not accept the fall in May 2023 caused the plaintiff any ongoing injury.

128For each of these reasons, I find that the plaintiff suffered aggravation of previously asymptomatic lumbar and lower dorsal spondylotic changes and posterior disc bulges at L1-2, L2-3, L3-4 and L4-5 with variable degrees of neural foraminal and spinal canal narrowing, resulting in the plaintiff’s pain and dysfunction as a result of the incident on 11 June 2022.

Was the Plaintiff’s injury permanent?

129Ms Fuentes considered the plaintiff had chronic lower back pain which had been persisting for three years post-injury.  Given the plaintiff’s presentation, Ms Fuentes’ prognosis for recovery was slow and guarded.  While some functional improvement was expected, Ms Fuentes considered residual impairment to be likely.  She also considered there was a risk of long-term deterioration without physical therapy because the degenerative changes may progress.

130Professor Bittar stated that the plaintiff’s current condition had substantially stabilised and with appropriate treatment, the condition would remain stable for a long time. Professor Bittar opined that the plaintiff was likely to continue to experience significant pain and disability into the foreseeable future. 

131Given the length of time since the injury and the ongoing nature of the symptoms, Dr Horsley considered that the plaintiff’s symptoms were likely to persist.

132Mr Barmare did not opine as to the prognosis of the plaintiff’s condition, although he identified that it had “not been completely resolved”.  Mr Barmare considered the plaintiff needed “to have a multidisciplinary approach towards his lower back and the treatment plan” which had been given in the conclusion section of his report.

133In relation to the prognosis for the plaintiff’s lower back injury, Dr Yong noted the nature of the back condition and the time since onset.  Dr Yong identified that the plaintiff’s current doctor was considering referring the plaintiff to see a specialist, and no further interventions had been recommended.  Dr Yong recommended a graduated activity-based recovery program and suggested the plaintiff’s condition should improve; hence his condition was not stable.

134Having considered the nature of the plaintiff’s condition – an aggravation of a pre-existing degenerative lumbar spondylosis condition – together with the medical opinions, I am satisfied the plaintiff will continue to suffer from his injury for the foreseeable future.  Lumbar spondylosis is a condition which will deteriorate.  It is productive of pain which, according to Mr Barmare’s report, now requires “management”, suggesting it is unlikely to resolve.

Credit

135The plaintiff gave evidence about his pain and dysfunction.  The plaintiff was cross-examined with a view to demonstrating that the reliability of his evidence was questionable and that he had exaggerated the extent of his injury.

136First, it was suggested to the plaintiff that he had exaggerated his pain.  Ms Fuentes, the plaintiff’s physiotherapist, had recommended he undergo a core strengthening exercise program which he had declined.  It was put to the plaintiff that he had told Dr Horsley that he was –

“… gaining benefit from his new physiotherapist, who believes that the way forward is a core strengthening and exercise program to increase his functional tolerances.  He is not keen to be referred to a pain specialist.”

137The plaintiff was “not sure” whether Ms Fuentes wanted to focus with him on a core strengthening and exercise program.  The plaintiff also disagreed that his former physiotherapist, Mr McLennan, at Kiewa Valley Sports & Spinal Physiotherapy, had ever given him a core strengthening exercise program to strengthen his core and functional tolerances.  The plaintiff similarly denied being given a walking program.  The plaintiff explained that although there was a gap in treatment between Kiewa Valley Sports & Spinal Physiotherapy and when he commenced to see Ms Fuentes, Mr McLennan had provided the plaintiff with recommended exercises, which the plaintiff did. 

138Similarly, the plaintiff was taken to the notes of a consultation he had with Dr Martins Owolabi and it was suggested Dr Owolabi had recommended the plaintiff undertake pain management treatment, but the plaintiff had declined.  The plaintiff disagreed with this suggestion.  The plaintiff said that even if he had been referred for pain management treatment, he did not want to undertake pain management treatment because he was happy with how he was managing his pain on his own.

139I accept the plaintiff had not been provided with a core strengthening or exercise program or a referral to a pain management specialist.  My impression of the plaintiff’s evidence was he did not seem to fully understand what was meant by the phrase “a core strengthening or exercise program”.  That was a description ascribed to the plaintiff’s treatment by Dr Horsley rather than by the plaintiff.  In the end, not much turns on it because I accept the plaintiff was performing exercises at home as directed by his former physiotherapist, Mr McLennan.  The plaintiff’s new physiotherapist, Ms Fuentes, was aware he was doing exercises at home.

140Similarly, Dr Owolabi’s notes recorded:

“Patient is willing to have an appointment with the pain management team, but only when his records from the previous clinic are available.”

141Dr Owolabi’s notes reflected only that the plaintiff may have been willing to participate in pain management treatment at a point in the future.  They did not say a referral had been made. 

142Next, the plaintiff was asked about his former work and the tasks he was required to do.  It was suggested that because the plaintiff was able to continue working 40 to 50 hours per week, even after he was injured on 11 June 2022, his back injury must not have been as bad as claimed.  The plaintiff accepted he continued to work those hours, together with approximately 8 hours’ overtime per week until he stopped working in September 2023, and that Dr Crowe had given him a certificate of capacity indicating he was fit for full-time work.  The plaintiff explained how he was able to work by saying he worked with increasing pain to the point he was unable to function enough to work.

143The plaintiff was asked about the incident on 11 June 2022 and the pain and symptoms he experienced following the incident.  It was suggested because the plaintiff took a period of annual leave after the incident, his pain was exaggerated.  The plaintiff accepted after the incident on 11 June 2022, he went camping and fishing with some friends and did not see a doctor until he consulted Dr Crowe at Belmont Bulk Billing Clinic on 22 June 2022.  Despite this evidence, the plaintiff did subsequently consult Dr Crowe about falling backwards off a ladder at work.  The reason for the consultation tended to support a conclusion that although the plaintiff had not initially sought medical assistance for his lower back, he continued to experience pain.  Although it was suggested to the plaintiff that his “symptoms had significantly improved”, the plaintiff did not agree.  When the medical record is seen in context, the plaintiff’s response is understandable. 

144A review of the medical record shows that the plaintiff underwent an ultrasound - soft tissues on 27 June 2022.  On that date, the report identified,

“… Findings were discussed with the patient and given that his clinical symptoms have significantly improved and he is not on any anticoagulation, ultrasound guided drainage has not been performed today.”

145The improvement recorded on the ultrasound – soft tissues was improvement to the plaintiff’s clinical symptoms.  It was not entirely clear what this notation was intended to encapsulate, but clinical symptoms in the context of an ultrasound - soft tissues presumably would cover objective signs of disease or injury.  There is no specific indication that clinical symptoms would be expected to include pain.  For that reason, even if the plaintiff’s swelling or bruising had reduced, his pain may not have.  I do not consider this evidence impacts the plaintiff’s credit.   

146It was next put to the plaintiff that after the incident on 11 June 2022, his symptoms in fact significantly improved.  The improvement was said to have been reflected by the fact the plaintiff did not return to see a doctor until the middle of 2023.  The plaintiff accepted he did not see a doctor or clinic until the middle of 2023, but he denied that his symptoms had significantly improved. 

147The plaintiff was then asked about his slip at work on 11 May 2023 and it was suggested the slip caused an increase in the plaintiff’s symptoms.  As previously indicated, I do not accept the fall on 11 May 2023 caused an increase in the plaintiff’s symptoms.  If the fall did increase the plaintiff’s symptoms, the increase was temporary and any pain the plaintiff continued to experience at the date of the hearing was the result of the original fall on 11 June 2022. 

148Next, the plaintiff was asked about the consultation he had with a doctor at Grovedale about his back condition on 7 July 2023.  It was suggested the plaintiff consulted the doctor in response to an incident which occurred at work on 27 June 2023, about a year after the incident on 11 June 2022.  In that incident, the plaintiff allegedly became verbally aggressive to someone in management.  The plaintiff was stood down from work for seven to eight days and given a final warning on 4 July 2023.  The defendant contended the plaintiff only consulted the doctor because he was concerned about his employment. 

149The plaintiff accepted that the consultation he had on 7 July 2023 with the doctor, was the first time since 27 June 2022 that he had seen a doctor for his back condition.  The plaintiff accepted he had been able to perform his pre-injury duties.  The plaintiff agreed he had not seen a need to consult a doctor or seek treatment and had been happy to manage his back condition with over-the-counter medication up to that time.  Nevertheless, the plaintiff maintained that although he had been managing his back pain himself, he was increasingly struggling to do his normal work duties.  That was why the plaintiff went to a doctor on 7 July 2023.  The plaintiff disagreed he only consulted a doctor on 7 July 2023 because he was concerned his employment was in jeopardy. 

150An email dated 22 August 2023 was shown to the plaintiff.  In the email, Katherine Johnson, the return-to-work coordinator at the employer, had recorded that the plaintiff had claimed he had been sore, “living on painkillers this whole time” since the incident on 11 June 2022 and that he had hurt his back on 19 August 2023.  The plaintiff could not recall an incident on 19 August 2023. 

151The defendant’s counsel suggested to the plaintiff, that Ms Johnson advised the plaintiff that if he put in a WorkCover claim, he would not be able to do overtime because he would need to be able to rest between shifts and on the weekend.  The plaintiff did not know about that, but agreed he was disappointed about not being able to work overtime.  The plaintiff said, despite making himself available for overtime generally, the overtime offered to him was restricted to Saturdays.  The plaintiff said he accepted that level of overtime because he felt, “I had no choice”. 

152It was then put to the plaintiff that the reason he was discussing putting in a WorkCover claim at the time was because he had been informed by his employer that it would no longer be able to pay his medical expenses.  The plaintiff agreed this was true.  The plaintiff said his employer had informed him it had reached the cap on what it had to pay.  It was suggested to the plaintiff he was upset by the idea that overtime would not be offered to him if he put in a WorkCover claim.  The plaintiff’s response was he was “upset because the pain and – and – and that with my back was destroying my career”.

153It was then suggested to the plaintiff that if his employer had been willing to keep paying his medical expenses, in September 2023 and onwards, he would have been happy to continue performing his full-time role as a maintenance fitter.  The plaintiff denied this suggestion.  The plaintiff said, “The – the pain was some – under stress with it all was getting on top of me.”

154Counsel for the defendant suggested if it were the case that the plaintiff’s pain was getting on top of him, the plaintiff would not have been upset or disappointed when his employer suggested he cut back his overtime.  The plaintiff said he was disappointed and expressed his disappointment at a meeting on 21 September 2023 attended by the plaintiff, Katherine Johnson, Mal, the maintenance manager, and Damien Luppino, a support person for the plaintiff. 

155It was contended by the defendant that the plaintiff was disappointed to the extent he discussed the matter with his union.  The plaintiff could not recall discussing the matter with his union, but agreed he contacted Fair Work.  The plaintiff said he contacted Fair Work, not to force anyone to do anything, but rather to see where he stood.  The plaintiff accepted that what he understood at that point was there was no way for him to continue working in his job with overtime if he submitted a WorkCover claim.

156On 21 September 2023, the plaintiff submitted a WorkCover claim in relation to the injury he suffered to his back on 11 June 2022.  It was put to the plaintiff that after he submitted the WorkCover claim, he went to see his doctor to get a certificate for time off work.  The plaintiff did not deny that was the situation, but said he saw his doctor about the back pain he was experiencing, and his doctor recommended he be put off work.  The plaintiff’s evidence was, “My doctor examined my back and recommended that I have time off”.

157It was then put to the plaintiff that he attended a consultation with Mr Muhammad Asif, general practitioner at the Grovedale Clinic, on 10 October 2023.  Dr Asif noted:

“off work….various issues with work and after he put in work cover claim.  Wants more time off work…….2 more weeks.”

158The plaintiff could not recall having a conversation with Dr Asif. 

159The plaintiff then disagreed with the proposition that he had experienced various issues with the employer after he put in the WorkCover claim and had asked for a further two weeks off work.  The plaintiff accepted he had not worked since September 2023 and had not looked for work in that time, but he disagreed that his affidavit painted an inaccurate picture of his ability to work.

160The plaintiff struck me as an honest man who tried to get on with his life and manage his pain in his own way.  The plaintiff was also clearly a man who was struggling to deal with the pain he was experiencing.  The plaintiff willingly made sensible concessions when giving evidence.  The plaintiff accepted he had not attended a doctor from 22 June 2022 to 7 July 2023, and he accepted he continued to work after he saw the doctor on 7 July 2023.  However, his evidence as a whole did demonstrate that he was nevertheless continually trying to manage pain. 

161In the year following his back injury on 11 June 2022, the plaintiff was taking anti-inflammatory medication and was performing home exercises.  The plaintiff did not attend pain management treatment, but I do not accept that a recommendation was made to him that he do so.  Even if such a recommendation was made, I do not consider that it was unreasonable for the plaintiff to have waited before seeking pain management treatment or, as he did, to try to manage his pain in his own way. 

162On 22 June 2022, the plaintiff underwent an ultrasound – soft tissues, the results of which indicated that the plaintiff’s injury could take twelve months to resolve.  True it was that the plaintiff did not consult a doctor between 22 June 2022 and 7 July 2023 but given the advice he had received that his injury might take up to twelve months to resolve, that was not unreasonable.  It does not mean the plaintiff was without considerable pain. 

163Similarly, the defendant’s attack on the plaintiff’s credit in relation to the timing of the lodgement of his WorkCover claim and ceasing work in 2023, did not persuade me that the plaintiff should not be believed about his pain and dysfunction either.  I do not accept that lodgement of a WorkCover claim was simply a convenient way for the plaintiff to cease work and have his medical expenses paid.  Had that been the case, the plaintiff could have submitted the claim many months earlier.  Where his employer had previously been paying his medical expenses, it was reasonable for the plaintiff not to have submitted a WorkCover claim earlier.  Further, even with the knowledge that submitting a WorkCover claim might inhibit his ability to continue working overtime, the plaintiff nevertheless submitted the claim.  Each of these matters point to a person in genuine pain.

164Further, the timing of the lodgement of the WorkCover claim is easily explained when seen in context.  The employer had been paying his medical expenses but then the employer said it was going to have to stop paying because it had reached a cap.  It was reasonable, therefore, for the plaintiff to try to understand what options were available to him – such as contacting a union or Fair Work or lodging a WorkCover claim.  After all, the practical effect of the employer’s advice to the plaintiff was the plaintiff was going to have to cover the cost of those ongoing expenses himself in the future.  I did not consider the plaintiff’s credit was affected by this line of cross-examination, but even if it had been, it would not mean I would automatically have to reject the plaintiff’s accounts of pain.

Medico-legal opinions in relation to whether any of the roles identified by CoWork could constitute “suitable employment” for the Plaintiff

Dr Horsley, occupational physician

204Dr Horsley prepared two reports.  The first report was dated 6 March 2025 and followed an examination of the plaintiff undertaken the same day.  The second report was dated 7 May 2025.  The second report considered the additional medical reports of Dr Maleque dated 17 January 2025, the CoWork report, and the report of Dr Yong dated 30 April 2025. 

205Dr Horsley’s first report proceeded from the premise the plaintiff had retired.  Nevertheless, Dr Horsley identified, on examination, that the plaintiff had lost lumbar lordosis.  The plaintiff had touch sensitivity on palpation in the lower lumbar region and paraspinally.  There was restriction of movement.  The plaintiff’s forward flexion was only 60 degrees, extension was 10 degrees, left and right lateral flexion and left and right lateral rotation were both limited in the last 15 degrees.  The plaintiff could only semi-squat and his functional tolerances had reduced.  The plaintiff had a walking tolerance of 15 to 20 minutes and walking even a short distance increased his pain.  The plaintiff’s standing tolerance was 20 minutes.  The plaintiff could sit or drive for an hour or so. 

206Dr Horsley considered restrictions applied to the plaintiff’s recreational, social and leisure activities such as avoidance of repetitive over-reaching, repetitive pushing and pulling, truncal rotation, static postures involving the lumbar spine, particularly static forward flexion, repetitive lifting and bending, lifting items greater than 10 to 12 kilograms, except on an occasional basis, and lifting up to 10 kilograms on a repetitive basis. 

207Dr Horsley considered the plaintiff’s ongoing mechanical back pain prevented him from realistically returning to the workforce as a maintenance fitter.  Dr Horsley opined that the critical physical demands of the role were permanently beyond his physical capacity.  Dr Horsley did not consider the plaintiff to be a candidate for re-deployment. 

208In Dr Horsley’s second report dated 7 May 2025, she considered the CoWork report.  Dr Horsley maintained her opinion as to the restrictions to be applied to the plaintiff’s recreational, social and leisure facilities and referred to the roles of spare parts interpreter, maintenance scheduler, test and tag technician, hospitality manager, sales assistant – hardware, electronics, automotive accessories, and boat or caravan salesperson.  Dr Horsley considered those roles to be moot because the plaintiff was not a redeployment candidate.  The plaintiff was retired, unable to return to his previous role as a maintenance fitter and lived in a remote location in East Gippsland.

Dr Yong, specialist occupational physician

209On 30 April 2025, Dr Yong prepared an independent medical assessment report following an examination of the plaintiff undertaken that day. 

210Dr Yong took a history from the plaintiff and noted the plaintiff’s complaints of pain in the lower back in the midline with no radiation of pain to his legs.  In relation to the plaintiff’s functional capacity, Dr Yong recorded that the plaintiff said he could sit for 30 minutes, stand for 30 minutes, walk for 2 kilometres and drive for 60 minutes. 

211On examination, the plaintiff was able to tiptoe, heel stand and partially squat slowly, but doing so was uncomfortable.  The plaintiff’s back was tender to palpation in the lower back in the midline.  There was no bruising noted and no scars.  The range of movement of the plaintiff’s lumbar spine was 50 degrees of flexion, 10 degrees extension, 10 degrees lateral flexion and 20 degrees rotation.  The straight leg raise was 40 degrees bilaterally.

212Dr Yong opined that the plaintiff did not have capacity for his pre-injury employment. However, Dr Yong considered that with participation in a graduated activity-based recovery program, the plaintiff’s condition should improve, and the prognosis was not unreasonable.  Dr Yong did not consider the plaintiff’s condition had stabilised.

213Dr Yong considered the plaintiff was able to do tasks within the following restrictions:

·        Avoid repeated bending and twisting of the back.

·        Avoid repeated firm pushing and pulling tasks.

·        Avoid lifting more than 8 kilograms on a repeated basis.

·        Vary posture regularly between sitting, standing and walking.

·        Initial reduction in working hours.

214In relation to the roles identified in the CoWork report, Dr Yong recognised that the plaintiff had only previously worked as a maintenance fitter.  The plaintiff had not worked in office-based roles.  The plaintiff had reasonable English skills and some computer skills, but he required retraining to assist him to do computer and customer service tasks. 

215Dr Yong identified that the spare parts interpreter role involved assisting customers to identify and select appropriate vehicle accessories and parts; providing information; processing customer orders; pricing and managing the sales counter.  Although Dr Yong identified the role as suitable for the plaintiff, he noted the plaintiff’s concern that he had not worked in an office previously.  Dr Yong considered if the plaintiff were going to work in a role as a spare parts interpreter, he would require retraining and a graduated return-to-work program.

216The maintenance scheduler role was identified by Dr Yong as involving duties such as preparing preventative maintenance plans and schedules, co-ordinating planned downtimes to minimise interference with production or service schedules, adjusting schedules to include emergency work, collaborating with procurement staff to ensure availability of necessary maintenance materials and supplies and ensuring compliance with existing maintenance procedures and regulations.  Dr Yong considered the plaintiff was able to perform the role of maintenance scheduler; however, suggested the plaintiff would require retraining and a graduated return-to-work program. 

217Dr Yong identified that the role of hospitality manager involved typical duties such as directing and overseeing hotel and motel reservations, reception and room service; arranging security arrangements; garden and property maintenance; managing and supervising staff; planning and overseeing bars and restaurants; ensuring compliance with occupational health and safety regulations; monitoring guest experiences, budgeting and maintaining records.  Dr Yong considered that sometimes the role might require the hospitality manager to perform hospitality tasks, such as handling bulk food or drink orders.  The role might also involve setting up events and moving furniture or carrying wine and beer.  Events could require prolonged standing.  The hospitality manager role would require individual assessment to determine whether the plaintiff would be able to functionally tolerate the demands of the role.

218In relation to the role of boat or caravan salesperson, Dr Yong described the duties involved as greeting customers and assisting them to select a suitable vehicle or equipment; demonstrating the features of different vehicles or equipment; providing information on pricing and financing; negotiating and finalising sales agreements and processing paperwork.  There was minimal manual handling involved in the occupation.  Dr Yong considered the plaintiff was able to perform the role of boat or caravan salesperson on a graduated return-to-work basis after provision of retraining. 

219Dr Yong considered the plaintiff might be able to perform the test and tag technician role, but it required awkward postures and there could be a requirement to handle goods or equipment in excess of the recommended restrictions.  Dr Yong was of the view that the ability of the plaintiff to perform the role would require individual assessment to ensure any given role met the recommended restrictions. 

220Dr Yong did not consider the plaintiff was capable of performing a sales assistant role (for example hardware, electronics, automotive accessories) because that type of role would require the plaintiff to undertake stocktakes and to lift items weighing up to 16 kilograms which would exceed the plaintiff’s functional tolerances.

Professor Bittar, neurosurgeon

221Professor Bittar considered the plaintiff to be incapacitated for his pre-injury duties and suitable employment due to his work-related lumbar spine condition.

Mr Arshad Barmare, consultant orthopaedic surgeon

222Mr Barmare considered the plaintiff should be offered:

“… modified duties which he is eager to do, and these should involve duties where he can sit for an hour or two without any trouble with breaks then, not lifting anything about 5 to 10 kg, no kneeling, bending and squatting.  Initially it could be modified hours and then gradually increase the modified hours to full hours and then do these modified duties on a permanent basis.”

Is the Plaintiff able to work in “suitable employment”?

223I accept that Dr Horsley did not consider the possibility of the plaintiff performing any of the specific roles identified in the CoWork report; however, Dr Horsley, like Dr Yong, did opine as to the plaintiff’s current restrictions.  Specifically, Dr Horsley was of the opinion that the plaintiff has substantial functional limitations in his ability to sit for more than 20 to 30 minutes.  The plaintiff has a limited static standing ability, and his dynamic standing ability is only around 20 minutes.  The plaintiff cannot walk for more than 30 minutes or on uneven ground and can only manage a few steps slowly and carefully. 

224Dr Horsley considered the plaintiff could lift 10 to 12 kilograms from bench height but should avoid repetitive or heavy lifting.  However, Dr Yong suggested the plaintiff’s capacity to lift was more restricted and should be limited to no more than 8 kilograms on a repetitive basis. 

225Both Dr Horsley and Dr Yong suggested the need for the plaintiff to avoid bending and twisting his back and identified that it was difficult for the plaintiff to squat.

226Having considered those functional limitations, I have formed the view that none of the jobs suggested for the plaintiff, would constitute “suitable employment”. 

227First, each of the jobs identified as “suitable employment” would require an employer to accommodate restrictions and to take account of the nature and extent of the plaintiff’s dysfunction and ongoing pain, which in many instances would not be possible.

228Second, of the roles identified by CoWork as possibly constituting “suitable employment” for the plaintiff, the roles of hospitality manager, test and tag technician and sales assistant (for example hardware, electronics, automotive accessories) did not constitute “suitable employment”. 

229The hospitality manager role would not be suitable for the plaintiff because it would involve lifting above 8 kilograms from time to time and considerable standing and walking.  The plaintiff might struggle with the occupational health and safety aspects of the job given his reduced ability to concentrate and the disturbances to his sleep.  The plaintiff did not consider he would be able to stock shelves or refrigerators or tap or manoeuvre kegs.  Further, the plaintiff did not want to work in a supervisory role because he had struggled in such a role previously due to the stress involved. 

230The role of test and tag technician would also be unsuitable, at least because of the awkward postures required, but also possibly because the plaintiff could be required to lift items beyond his functional capacity.  Additionally, the plaintiff was concerned at interview with CoWork that he would be unable to manage the repetitive bending associated with the role, which I accept is another reason the role would be unsuitable.

231Further, the sales assistant role (for example hardware, electronics, automotive accessories) would not be suitable for the plaintiff because it would require the plaintiff to undertake stocktakes and to lift items weighing up to 16 kilograms.  Additionally, although the plaintiff had not made enquiries about the availability of any jobs, he did not consider he could do a sales assistant role because of the bending and lifting involved.

232The remaining roles of spare parts interpreter, maintenance scheduler and boat or caravan salesperson, were also not “suitable employment”. To perform those roles, the plaintiff needed the ability to successfully undertake a graduated activity-based recovery program, to improve his condition and also retrain.  In my view, consistent with the opinions of Professor Bittar and Mr Barmare, there was no realistic prospect that participation in a graduated activity-based recovery program would improve the plaintiff’s condition.

233Professor Bittar did not suggest that the plaintiff’s condition would improve with participation in a graduated activity-based recovery program.  Professor Bittar considered the plaintiff had suffered an aggravation of a degenerative lumbar spondylosis condition.  Professor Bittar’s prognosis was that the plaintiff was “likely to continue to experience significant pain and disability into the foreseeable future”.

234Similarly, although Mr Barmare recommended the plaintiff should be offered modified duties involving sitting for an hour or two with breaks, not lifting anything weighing above 5 to 10 kilograms, not kneeling, bending or squatting, and that he should gradually increase to full hours, Mr Barmare also recognised the plaintiff had ongoing pain and degenerative lumbar spondylosis.  Mr Barmare accepted that the plaintiff’s physical signs matched his complained symptoms.  Mr Barmare also noted on examination of the plaintiff’s lumbar spine, that the plaintiff was tender on the lower lumbar spine in the region of L5-S1.  When seen by Mr Barmare, the plaintiff was not observed to have any paraspinal muscle spasms.  The plaintiff could flex to about 50 degrees.  The plaintiff’s extension was to 20 degrees, rotation to the left was 40 degrees and to the right was 30 degrees.

235Mr Barmare did not state in his report that the pain the plaintiff was experiencing was not emanating from his degenerative back condition.  Mr Barmare simply did not address the effects of that condition.  In the absence of that evidence, I do not accept Dr Yong’s opinion that “with participation in a graduated activity-based recovery program, the plaintiff’s condition should improve”.  There was no such guarantee.

236Further, both Professor Bittar and Mr Barmare accepted that the plaintiff’s lumbar spondylosis condition is a degenerative condition.  The essence of a degenerative condition is that it is likely to progress and deteriorate rather than improve. 

237Additionally, Mr Barmare accepted that the plaintiff’s physical signs matched the symptoms about which the plaintiff complained and suggested the plaintiff would benefit from a multidisciplinary approach in the form of pain management.  It is reasonable to conclude from Mr Barmare’s recommendation as to pain management treatment, that he anticipated the plaintiff would have ongoing pain.  There was no guarantee that participation in a graduated activity-based recovery program would lead to improvement in the plaintiff’s condition. 

238Even if participation by the plaintiff in an activity-based recovery program was successful in improving the plaintiff’s condition, based on the functional requirements of each of the roles of spare parts interpreter, maintenance scheduler and boat and caravan salesperson, I do not consider those roles to be suitable employment for the plaintiff. 

239The role as a spare parts interpreter would require frequent standing, walking, bending and lifting.  There could be occasional delivery of parts which would necessitate walking or driving.  Additionally, the role would require an ability to concentrate on customer requirements to identify appropriate parts in the warehouse.  The plaintiff would probably find this difficult due to decreased concentration as identified in the CoWork report.  Further, the plaintiff considered special adaptations would not assist him because the role would involve sitting at a desk or being mobile. 

240The plaintiff said he would not discard the role of a maintenance scheduler, but he did not consider he could perform the role, as it involved sitting at a desk which the plaintiff did not think would be practical given the difficulties he had sitting.  I agree.

241Similarly, the role of boat and caravan salesperson would involve sitting and standing and would be unlikely to be suitable for the plaintiff.  Further, because the role was a customer service role, the plaintiff would require retraining to be able to perform the role.

242In arriving at my conclusion, I have taken into account all the evidence including the degenerative nature of the plaintiff’s lumbar spine condition, the plaintiff’s ability to participate in an activity-based recovery program, the likelihood that participation in such a program would be successful in improving the plaintiff’s condition, and the job requirements of the plaintiff’s previous employment compared with the functional requirements of each suggested role.  I have also considered the plaintiff’s current place of residence in rural Gippsland, the fact that no occupational rehabilitation services were ever offered to him, his possible subsequent deconditioning, his age, prior work experience and education. 

243I find the plaintiff is permanently incapacitated for work.

Has the Plaintiff suffered a more than 40 per cent loss of earning capacity?

244Having found the plaintiff has suffered a permanent loss of all earning capacity, it follows that the plaintiff has suffered a more than 40 per cent loss of earning capacity. 

Is the Plaintiff disentitled from establishing the loss of earning capacity required by paragraph s325(2)(b) of the Act because he had not made reasonable attempts to participate in rehabilitation or retraining as required by s325(2)(g) of the Act?

245The defendant submitted that even if the plaintiff had no capacity to work in suitable employment, and specifically in the three roles which it was suggested he may have been physically capable of performing, the plaintiff had not made reasonable attempts to participate in rehabilitation or retraining as required by s325(2)(g) of the Act. The defendant submitted that the plaintiff did not meet the requirement in s325(2)(g) of the Act, to participate in rehabilitation or retraining, because he had “not gone to explore what was the residual capacity as at the end of 2023 and into 2024 but rather has chosen not to look for any work, not to apply for any retraining”. Consequently, a finding should be made that the plaintiff had not established the loss of earning capacity required by paragraph s325(2)(b) of the Act.

246I do not accept that submission.

247I accept the plaintiff was willing to participate in retraining.  That conclusion is consistent with what the plaintiff told CoWork in the assessment interview for the purposes of preparation of the CoWork report.  In the report, the author noted that:

“When I asked Mr Thomas if he feels he is currently in a position to retrain or work, he answered: ‘Probably not but I’m always interested … the biggest problem with retraining is sitting in a classroom at a desk for a long period of time.  Maybe an online course or something like that.  I don’t know what I’d like to do.  I said to ‘em, I’d really like to get back into me trade one day but I don’t think that’s gonna happen, not unless I mask me problems with drugs … the problem with drugs is it impairs your judgement doing these tasks, it’s not just meself that I’ve gotta worry about … unintentionally if you’re taking these painkillers they do have an effect on you ….  That’s why I have the Panadol, that way I can live some sort of normality without being overly drugged up or anything.’”

(sic.)

248The plaintiff was asked in cross-examination about the discussion he had with CoWork regarding his willingness to undergo retraining.  The plaintiff could not recall the discussion, and the responses he provided to CoWork.  The plaintiff said he would be willing to undergo retraining depending on the position on offer.  The plaintiff thought any retraining would have to be for a specific role, but he disagreed there would have to be a specific job available or that he would require assurance that the retraining would lead to realistic and available employment opportunities.  The plaintiff accepted, in relation to the role of maintenance planner, that he had said:

“… I know what a lot of these people want and it ends up being hands-on, sitting at a desk for long periods of time, maybe.  I wouldn’t discard it, but I don’t think it would be practical.”

249By that, the plaintiff meant he would consider what the employer required and whether he could do the job with the pain he suffered from his lower back.  The plaintiff disagreed that the only way he would know if he could do a specific job, such as maintenance scheduler, was to give it a go.  The plaintiff said he knew he could not do the job.  It would not be practical.  Further, the plaintiff said a prospective employer probably would not employ him because of his back injury.  The plaintiff explained he had not decided to retire, but he was not making any job applications because of his back injury. 

250The plaintiff explained in re-examination that if a job involved frequently lifting weights of 4 to 5 kilograms, he could not do it because he would suffer lower back pain.  Bending stretched the plaintiff’s lower back, and the movement forward caused him pain.  Similarly standing or sitting for lengthy periods caused pain in the plaintiff’s lower back.  The plaintiff said, since he stopped work, no retraining had been offered to him.  Even if the plaintiff were to be offered a job, the plaintiff said he could not predict his symptoms from one day to the next. 

251The conclusion that the plaintiff was willing to undertake retraining was also consistent with Mr Barmare's report of 18 October 2024 that the plaintiff was “eager” to do modified duties.

252I further accept that because the plaintiff was employed by the employer up to 30 October 2024 when his employment was terminated, it was reasonable for the plaintiff to undertake whatever retraining opportunities were offered to him by his employer.  No retraining opportunities were offered.  The plaintiff should not be penalised for this. 

253I accept the plaintiff did not seek to retrain after 30 October 2024. 

254The defendant submitted, in those circumstances, relying on Ristevski v Demos Property Services (Australia) Pty Ltd & Anor,[33] there had been an absence of effort by the plaintiff to rehabilitate and retrain, leaving only two possible conclusions open.  First, that the plaintiff was totally incapacitated for work.  Secondly, that it was simply not possible to determine whether the plaintiff had any residual capacity which he could exercise in suitable employment and consequently, that the plaintiff had failed to discharge his onus. 

[33][2010] VCC 169 (“Ristevski”) at paragraph [102]

255In this case, despite the plaintiff’s willingness to retrain, I accept that seeking to retrain would not have assisted the plaintiff to obtain employment because he is permanently incapacitated.  I therefore do not consider it was unreasonable that the plaintiff did not seek specific retraining.  The decision of Ristevski does not apply. 

256The essence of the plaintiff’s evidence was he could not work with a sore back.  I have accepted the plaintiff as credible and reliable, and I accept his evidence that he suffers from a substantial ongoing lower back injury which places physical limitations on him including precluding him from working in suitable employment. 

257Even if the plaintiff had some theoretical capacity to undertake one of the suggested roles, given his age, the reduction in his concentration and focus due to his pain and discomfort, the disturbances to his sleep, as well as his location, it was unlikely the plaintiff would have been capable of carrying out the retraining requirements on a reliable and consistent basis.  I consequently do not consider it was reasonable to expect the plaintiff to have undergone such retraining.

Is the loss of earning capacity permanent?

258The defendant submitted that even if I find that the plaintiff is totally incapacitated for work, the plaintiff is unable to establish a loss of earning capacity at the date of the hearing which will “continue permanently to … be productive of a financial loss of 40 per cent or more”. Relying on Cuturic,[34] the defendant contended this conclusion was reasonable because at the date of the hearing, the plaintiff was at, or nearing, retirement age and his role was a heavy role which he would only have been able to perform for a finite time. 

[34]at paragraph [33](i)

259I have found the plaintiff has no realistic work capacity.  I have also found that at the date the plaintiff was injured, his pre-existing degenerative lumbar spondylosis was asymptomatic.  Having made those findings, there was no reason to find the plaintiff would not otherwise have continued working.  This is particularly so given the plaintiff was only aged sixty-six years at the date of the hearing and in his further affidavit, about which he was unchallenged, he said he intended to work to age seventy years. 

260In my view, Cuturic has no application.  That was a case where the worker said in her affidavit that she intended to retire by a certain date, which date had passed at the date of the hearing.  That is not this situation.

261I find the plaintiff’s loss of earning capacity is permanent. 

Is the Plaintiff’s loss of earning capacity consequences “serious”?

262I am satisfied that the plaintiff’s loss of earning capacity consequences is “serious”.  In addition to having sustained a loss of more than 40 per cent of his earning capacity, the plaintiff lost the ability to work in a career he enjoyed. 

Are the impairment consequences for the Plaintiff with respect to pain and suffering “serious”?

263Having suffered a permanent loss of earning capacity of more than 40 per cent, it is strictly unnecessary for me to consider further the plaintiff’s pain and suffering impairment consequences.  The plaintiff is entitled to a certificate enabling him to commence proceedings for damages for both pain and suffering and loss of earning capacity.[35]  For completeness though, I will make some brief observations. 

[35]Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170 at paragraphs [63]-[64]

264I note that in addition to total and permanent incapacity to work, the plaintiff suffered from constant daily pain in his lower back.  The pain was mostly located in the centre of the plaintiff’s back.  At times, the pain radiated down the plaintiff’s left leg.  Most of the time, the pain felt like a nagging ache that sat at a level of about 5-6 out of 10, although about three to four times per week, the plaintiff had flare-ups of pain which reached a level of about a “thumping” 8-9 out of 10.  The flare-ups could occur due to activity, and sometimes for no obvious reason.  When they occurred, they generally lasted anywhere from a few hours to a couple of days.  Sometimes the plaintiff was able to halt the flare-up by taking stronger pain medication or by doing physiotherapy exercises. 

265With activities, the plaintiff’s pain increased and became sharp and severe.  The plaintiff had a lot of stiffness in his back, particularly in the mornings.  This caused the plaintiff’s pain to increase and resulted in difficulty with lifting, twisting, reaching sitting and standing for prolonged periods, and with bending and leaning forward.  Sometimes the plaintiff’s pain persisted no matter what he did. 

266The plaintiff said he could not predict his symptoms from one day to the next.

267After seeking initial medical treatment for his pain, the plaintiff did not see a medical professional from 22 June 2022 until 11 July 2023.  However, the plaintiff’s rationale for not seeing a medical professional, was understandable because the plaintiff had been told the injury could take up to a year to resolve. 

268After the plaintiff consulted with his general practitioner, Dr Maleque, on 7 July 2023, until recently, the plaintiff continued to attend the general practitioner at the Grovedale Medical Centre. 

269After moving to Gippsland, the plaintiff began seeing Dr Owolabi on a monthly basis.

270In addition to consulting his general practitioner, the plaintiff tried to manage his pain by taking over-the-counter pain medication including Panadol Osteo, two to three tablets a day, and Voltaren, six to eight tablets per week most days.

271Dr Maleque provided the plaintiff with prescriptions for pain medication.  Up to three times a week, the plaintiff took prescription pain medication including paracetamol, 500 milligrams/codeine as needed; diclofenac (Clonac) twice a day; Celebrex, and Oxycodone, 5 milligrams (up to three times daily as needed).  He also did home exercises on a daily basis, went to a spa to have passive treatment with jets on a nightly basis, and saw a physiotherapist on a weekly basis for massage. 

272More recently, the plaintiff sought advice from his general practitioner about whether pain management treatment was available in his local area.  The plaintiff was not referred to a pain management specialist, but he said he preferred to manage his pain himself with painkillers and physiotherapy. 

273The plaintiff’s sleep was impacted by pain.  He said he woke frequently and at least three times each week, he woke and had to change his position or get up in the night and walk around to change his posture to try to relieve the pain.  This caused the plaintiff to feel very tired during the day.  The plaintiff tried to resist napping, as that only made his sleep at night worse.  The plaintiff understood that prescription medication might possibly assist him to sleep, but he worried he would get trapped in a cycle of reliance on strong medications.

274The plaintiff accepted he had retained some mobility and had “managed once or twice” to hook his van up to his car, but he said his partner usually did that.  The plaintiff did not accept in cross-examination that he was able to hitch the camper trailer and boat trailer to his car independently.  I accept that while the plaintiff could hook up his boat or the camper trailer to his car if he needed to, his partner usually assisted him.

275The plaintiff had difficulty with activities of daily living including getting dressed and putting on shoes and socks.  Those activities required the plaintiff to move into a bent over position.  The plaintiff had trouble tying his shoelaces and used slip-on shoes.  The plaintiff managed to groom himself.  The plaintiff managed to do most housework on his own, but he did it slowly and tried to pace himself with household chores and daily activities.  The plaintiff avoided anything that involved bending and leaning over, and said his partner did most of the heavier tasks.  The plaintiff was able to cook and could shop with his partner, but he could not lift groceries or anything over 5 kilograms. 

276In his further affidavit, the plaintiff said his partner purchased the home where he now lives.  The property has a big garden and 5 acres of land.  The plaintiff disagreed he could look after the garden and denied that his affidavit was inaccurate in that regard, although he accepted that he could do some gardening if he had to.  The plaintiff also agreed he and his partner paid a person with a head injury “a few dollars just to come in and weed and stuff”.  The plaintiff explained that if he was having a good day with respect to his pain, he would sometimes use the ride-on mower, but he could only do that for a limited time due to the pain he experienced.  Dr Yong also noted the plaintiff’s inability to mow the lawns with a ride-on mower for more than 5 to 10 minutes.  The plaintiff said his partner does a lot of the gardening, which was confirmed by the plaintiff’s relative, Thomas Whelan.  I accept the plaintiff has some ability to work in the garden, but I accept that his enjoyment of this activity is impacted by pain.

277I also accept that prior to suffering the injury to his back, the plaintiff enjoyed outdoor activities, including hunting, bushwalking and fishing.  The plaintiff’s capacity to participate in, and enjoy, those activities had been significantly impacted by his lower back injury. 

278The plaintiff could previously walk over hills and uneven ground for up to 20 kilometres over a weekend.  However, the plaintiff now struggles to be on his feet for that long due to the pain he experiences. 

279Since the plaintiff was injured, although he does not currently have a firearms licence, he cannot go duck hunting as often.  The plaintiff cannot walk around the swamps and wetlands like he used to because of the pain in his back.  When the plaintiff has gone hunting, it has only been for about an hour.  The plaintiff said, when he had gone hunting, he took medication and then joined the camp and mainly sat or stood watching the other members of the group.  Even if the plaintiff had a firearms licence, which he did not currently have, I accept the plaintiff is no longer able to fire a gun due to his back pain. 

280The plaintiff said his ability to go hunting and to fire a gun, had impacted his ability to spend time with his grandchildren aged ten to thirteen years.  To hunt in that environment would require him to be fully licenced. 

281When fishing now, the plaintiff has difficulty casting off, due to the twisting motion required.  He has to be very careful to avoid twisting or overreaching and causing a flare-up of pain.  Mr Whelan said in his affidavit that before the plaintiff was injured, the plaintiff came to Mr Whelan’s house, and they would walk 5 miles down to the surf beach and go fishing at various places.  Mr Whelan said that when he goes fishing with the plaintiff now, they fish at low, flat, surf beaches.  They walk about 300 metres and stop every 100 meters or so for the plaintiff to take a break.  If fishing by a river, the plaintiff now mainly sits at the riverbank with his rod up near his head, so he does not have to move much.  Mr Whelan said he can tell the plaintiff is in pain, but the plaintiff says to him “he has got to keep going”.

282The plaintiff has participated twice in fishing competitions, but he is now unable to fly fish in rivers and is mostly confined to the bank or a boat.

283The plaintiff has been able to retain a social life and has joined an angling club, where he can socialise and meet new people.  The plaintiff and his partner have a small, 4.5-metre boat which they take out.  The plaintiff relies on his partner to do the heavier tasks with the boat and said he would struggle to take it out on his own. 

284The plaintiff is still able to go camping.  Now it is mostly in a camper trailer rather than with a swag on the ground. 

285The plaintiff remains able to tinker with lamps.

286I do not accept the plaintiff does work on his car or camper van or on his house.

287The plaintiff uses a lumbar support when driving.  The plaintiff’s pain increases when he drives long distances and when driving long distances, consistent with Mr Whelan’s observations, I accept he has to stop regularly to walk around and stretch his back. 

288In addition to the above pain and suffering consequences which I accept, I also find that the plaintiff is stoic.  The plaintiff has got on with life and continued to work despite months of ongoing bruising and pain in his lower back.  The plaintiff pushed through the pain when fishing because he felt he had to keep going.

289I am satisfied the pain and suffering impairment consequences for the plaintiff with respect to pain and suffering are “at least ‘very considerable’ and certainly more than ‘significant’ or ‘marked’”.

Conclusion

290I find the plaintiff has a serious injury.  He is entitled to commence proceedings to recover damages for pain and suffering and loss of earning capacity. 

291I will hear argument with respect to costs.

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