Victorian WorkCover Authority v Perumal

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2023 0120

VICTORIAN WORKCOVER AUTHORITY	Applicant
v
BASKARAN PERUMAL	Respondent

S EAPCI 2023 0140

BASKARAN PERUMAL	Cross-Applicant
v
VICTORIAN WORKCOVER AUTHORITY	Cross-Respondent

---

JUDGES:	BEACH, WALKER JJA and O’MEARA AJA
WHERE HELD:	Melbourne
DATE OF HEARING:	15 May 2024
DATE OF JUDGMENT:	28 May 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 107
JUDGMENT APPEALED FROM:	[2023] VCC 1786 (Judge Purcell)

---

ACCIDENT COMPENSATION – Workplace accident – Serious injury – Respondent struck by concrete panel and suffered displaced compound fracture of the right radius, surgically treated – Ongoing forearm and wrist pain – Subsequent surgery to remove metalware – Primary judge granted leave to the respondent to commence common law proceedings as a consequence of being satisfied that the economic consequences were ‘at least very considerable’ and that the statutory formula was satisfied – Applicant claims specific errors, particularly whether there was evidence that respondent would permanently suffer a loss of earning capacity of 40 per cent or more – No error shown – Application for leave to appeal granted, but appeal dismissed – Cross-application for leave to appeal unnecessary to determine.

Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), ss 325(2)(c), (e), (f), (g), (j) and 335(5)(b).

Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; Palmer Tube Mills v Semi [1998] 4 VR 439; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170; Yirga-Denbu v Victorian WorkCover Authority (2018) 57 VR 545; Cardoso v Staff Australia Payroll Services Pty Ltd [2019] VSCA 139; Connelly v Transport Accident Commission [2024] VSCA 20, applied.

---

Counsel
Applicant/Cross-Respondent:		Mr RD Kumar with Ms L Glass
Respondent/Cross-Applicant:		Mr LBR Allan with Ms S Fernando
Solicitors
Applicant/Cross-Respondent:	Wisewould Mahony
Respondent/Cross-Applicant:	Slater & Gordon

BEACH JA
WALKER JA
O’MEARA AJA:

The respondent was injured in a workplace accident in December 2018, when a slab of concrete, which was being lifted by a crane, swung and struck his arm. He suffered a displaced compound fracture of the right radius. He underwent surgery and the fracture was fixed with a metal plate and screws. He was able to return to work initially, but continued to suffer pain. After a dispute with his employer about the duties he was fit to perform, he ceased work in mid-2019. In January 2023 the metal plate was removed, and his pain improved. However, he has not returned to work.
In February 2021 the respondent sought leave under s 335 of the Workplace Injury Rehabilitation and Compensation Act 2013 (‘WIRC Act’) to bring a proceeding for the recovery of damages in respect of the injury. The judge concluded that the applicant’s pain and suffering did not reach the statutory threshold of ‘at least very considerable’, as required by s 325(2)(c) of the WIRC Act, and thus his pain and suffering did not provide a basis for the grant of leave. However, the judge granted leave on the basis that the respondent’s earning capacity was reduced by 40 per cent or more, thus satisfying the statutory test in s 325(2)(e) of the WIRC Act.
The applicant now seeks leave to appeal against the judge’s grant of leave. The respondent seeks leave to cross-appeal in relation to the pain and suffering conclusion, although the cross-appeal only arises if the applicant is successful in its application for leave and its appeal.
For the reasons that follow, we would grant leave to appeal but dismiss the appeal. In those circumstances, it is not necessary to determine the cross-appeal.

Relevant facts

The respondent was born in Sri Lanka and is an ethnic Tamil. He completed the equivalent of Year 10 and then ran a bicycle spare parts shop and also did some work as a storekeeper.
The respondent was injured in a bombing and fled Sri Lanka in 2009. Seeking asylum, he lived for several years in India and then Indonesia before coming to Australia by boat and living for about two years in detention until his release into the Australian community in 2015. He is on a bridging visa and has been permitted to work.
The respondent has limited English and obtained a labouring job at a powdered milk factory. He was later made redundant and was unemployed for some time before obtaining a labouring job in October 2018. The true identity of his employer seems to have been obscured, at least until later. In any event, the respondent was employed to clean concrete panels and to fix steel in joints of slabs of concrete.
On 3 December 2018, the respondent was assisting in the movement of a concrete panel lifted by a crane. The crane operator caused the panel to swing towards the respondent who put out his right arm to protect himself. He was struck and suffered a nasty injury to his dominant right arm.
The respondent was taken to the emergency department of the Austin Hospital by ambulance and treated for a displaced compound fracture of the right radius. The following day the fracture was surgically reduced and internally fixed using metalware. He was discharged from hospital on 5 December 2018.
The respondent subsequently attended the orthopaedic outpatients service for occasional treatment. He continued to complain of pain when using his right arm or hand. The pain seems to have been in his forearm and wrist and, at a perhaps later time, in his right shoulder.
In that context, the respondent returned to work for about two days in February 2019 and returned again at some point in April 2019. He continued to suffer from right hand and arm pain and said that he was supposed to have been on light duties. He said that the relationship with his employer soured and that his return to work was made ‘very difficult’.
In that regard, Dr Robyn Horsley, occupational physician, saw the respondent for medico-legal purposes in December 2020 and recorded that in the course of his return to work the respondent was given assistance at first, although that was later removed and his right forearm pain increased ‘substantially’. He then worked fixing steel using his left hand and took extra breaks to cope. The parties agreed that, by mid-2019, there was a dispute between the respondent and his employer about the duties he was fit to perform.
In mid-2019, the respondent suffered an assault at the hands of another worker. He said that he was shoved to the ground, hassled and asked why he was taking extra breaks. The police were called, but nothing happened. Dr Horsley described the incident as ‘significant’. The respondent did not thereafter return to work.
The respondent continued to attend outpatients occasionally and also had physiotherapy and saw his general practitioner and a psychologist. In mid-2022 he was placed on a waiting list to have further surgery in order to remove the metalware from his arm. That surgery was performed on 30 January 2023.
The respondent subsequently had one review at the hospital. He requested physiotherapy, but that request was denied by the insurer. He said that he could not afford to pay for physiotherapy as he no longer received weekly payments of compensation and did not receive Centrelink.
The respondent deposed that the most recent surgery had helped with his arm pain, although:
(a)he continues to get ‘pricking’ pain when he uses his right arm and is ‘more active with tasks’;
(b)he has a feeling of numbness in his right middle finger;
(c)he has reduced grip strength in his right hand and has trouble holding things in that hand;
(d)his right wrist remains sore and tender;
(e)his right arm continues to feel weak;
(f)he is unable to lift heavier things with his right hand and, if he uses his right hand and arm for a long period, or for ‘something repetitive’, he will get pain and need to rest his arm; and
(g)he has trouble making a fist with his right hand.
In that context, the respondent said that he takes Panadol for pain, as required; which is about five days per week. He also sees his general practitioner monthly.

The trial proceeding

By originating motion, pursuant to s 335 of the WIRC Act, the respondent applied for leave to commence common law proceedings for the recovery of damages.
That application was heard in the County Court by his Honour Judge Purcell on 26 September 2023.
The respondent’s evidence-in-chief was given on affidavit and he was thereafter cross‑examined and re-examined. He was the only witness who gave evidence orally. His wife also swore an affidavit, but she was not requested to attend for cross‑examination. The medical evidence was documentary and comprised both medical reports and records.
On 6 October 2023, pursuant to detailed reasons,[1] his Honour granted leave to the respondent to commence common law proceedings for pain and suffering and loss of earning capacity damages.
[1]Perumal v VWA [2023] VCC 1786 (‘Reasons’).
In substance, his Honour was not satisfied that the pain and suffering consequences of the right upper limb injury could be described as ‘at least very considerable’; but was satisfied that the pecuniary loss consequences could be so described, and that the respondent satisfied the statutory formula by which he could be said to have suffered a permanent loss of earning capacity of 40 per cent or more.[2] For the reasons given by this Court in Advanced Wire & Cable Pty Ltd v Abdulle,[3] consequential upon the respondent being granted leave to commence a proceeding for loss of earning capacity damages he was also granted leave to commence a proceeding for pain and suffering damages.
[2]Workplace Injury Rehabilitation and Compensation Act 2013 (‘WIRC Act’) ss 325(2)(c), (e), (f) & (g).
[3][2009] VSCA 170.

The proposed grounds of appeal and cross-appeal

The applicant applied for leave to appeal and relied upon the following proposed grounds:
1. The primary judge erred in making the following factual findings:
(a)the Respondent’s condition was stable and permanent (at [110] of the reasons for judgment);
(b)the Respondent’s work capacity as at the date of the hearing was limited to either light work for four hours per day, three days per week (at [114] of the reasons for judgment) or light work for four hours per day, four days per week (at [115] of the reasons for judgment);
(c) the Respondent will continue to permanently be restricted to 16 hours of light manual work per week (four hours per day, four days per week) in ‘suitable employment’, after a functional program or with some work conditioning (at [115] and [131] of the reasons for judgment):
(i)which constituted an increase of one four-hour day per week, if the primary judge had found that the Respondent’s work capacity as at the date of the hearing was limited to light work for four hours per day, three days per week (at [114] of the reasons for judgment); or
(ii)which constituted a zero increase in hours of work per week, if the primary judge had found that the Respondent’s work capacity as at the date of the hearing was limited to light work for four hours per day, four days per week (at [115] of the reasons for judgment).
2.The primary judge erred in concluding that, in accordance with section 325(2)(e)(ii) of the Workplace Injury Rehabilitation and Compensation Act 2013, assessment of whether the Respondent would after the date of the hearing continue permanently to have a loss of earning capacity, which would be productive of financial loss of 40 percent or more, was ‘a broad enquiry conducted in accordance with general common law principles’ (at [130] of the reasons for judgment).
3.The primary judge erred in failing to give adequate reasons and expose his Honour’s path of reasoning in respect of the following:
(a)the factual finding that the Respondent’s condition was stable and permanent;
(b)the manner in which the medical opinions of Dr Mary Wyatt, Occupational Physician, in her report dated 13 April 2023 and of Mr Damian Ireland, Hand Surgeon, in his report dated 2 August 2023, considered and, at least in part, summarised by the primary judge in the reasons for judgment prior to the factual conclusion ‘that the Plaintiff at present could undertake light work for four hours per day, three days per week’ (at [114] of the reasons for judgment), were in any way supportive of this factual conclusion, noting that both of these independent medical examiners have in effect opined that the Respondent was fit for full-time ‘suitable employment’;
(c)if the primary judge rejected the medical opinions of Dr Wyatt and Mr Ireland in respect of the Respondent’s full-time ‘present’ or ‘current’ capacity for ‘suitable employment’, as his Honour had seemingly done, the reason/s for doing so;
(d)if the primary judge made a factual finding that that the Respondent’s work capacity as at the date of the hearing was limited to light work for four hours per day, four days per week (at [115] of the reasons for judgment), the reason/s for so finding;
(e)the factual finding in 1(c).
Quite properly, in the course of argument counsel for the applicant confirmed that:
(a)proposed ground 2 is essentially defensive and arises only if the Court accepts that proposed ground 1 succeeds and thereafter proceeds to determine the issue for itself; and
(b)proposed ground 3 is not pressed.
For his part, the respondent filed a cross-application seeking leave to appeal in respect of his Honour’s determination that the pain and suffering consequences of the right upper limb injury were not ‘very considerable’.
The cross-application states the following proposed grounds:
1.The primary judge erred in failing to give adequate reasons and expose his Honour’s path of reasoning in respect of his treatment of the Cross-Applicant’s incapacity for work as a pain and suffering consequence.
2.On a proper evaluation of the pain and suffering impairment consequences found by the primary judge, the Cross-Applicant’s right upper limb injury did meet the statutory test contained in s. 325 of the Act to qualify as a ‘serious injury’, and the primary judge’s conclusion to the contrary was plainly wrong or wholly erroneous.
In his written case, the respondent confirmed that if the applicant’s application fails it will not be necessary for the Court to determine the cross-application.
In argument, counsel for the respondent confirmed that proposed ground 1 of the cross-application was not pressed.

The respondent’s evidence at trial

As noted, the respondent swore two affidavits received as his evidence-in-chief. Much of the relevant substance of that evidence is referred to above.
In respect of his capacity to work, in his second affidavit sworn on 21 July 2023, the respondent deposed as follows:
23.I do not feel like I could work in my old job, or in any physical job, with the way my right arm is now. I believe I could work in a lighter job where I did not have to use my right arm much, or for anything heavy, and where I did not need English language skills. If I could find that sort of job, in my view I could work up to say 4-5 hours a day, with a day off in between each day to rest my arm. I do not think I could work full-time, because the more I use my arm, the worse the pain gets.
The respondent gave oral evidence with the assistance of an interpreter.
In cross-examination, he was challenged concerning particular aspects of history recorded as having been given by him to two different medico-legal examiners, Mr Ash Chehata and Mr Damien Ireland. In substance, the respondent stood his ground in respect of those and other such issues and answered the questions of counsel in a reasonable and straightforward way.
Among other things, the respondent was asked about the ‘easy process work’ that he had performed at the powdered milk factory and replied:
At that time, it would have been easier for me to do that work. It’s easy processing work. But not now.
The respondent confirmed that he had been told that the fracture had healed, but said he was ‘still having pain’.
He confirmed that he stopped treatment with a psychologist in September 2021, had not had any physiotherapy since November 2022 and had undergone the day procedure at the Austin Hospital on 30 January 2023 to remove the metalware.
The respondent was asked about his recovery from that procedure and, in broad terms, maintained that he had continued to attend his general practitioner, albeit that the pain had ‘reduced a little bit’. In that context, he agreed that the surgery had been ‘very successful’, the pain was ‘mild only’ and the function of his right arm had improved.
That said, he gave evidence that he has continued to take Panadol for the pain, and that his lifting capacity remains affected.
It was sought to be suggested that, in effect, his only limitation was heavy lifting and he said:
… If I do anything continuously I get pain. I can’t do anything continuously.
He acknowledged that his symptoms had improved, but spoke further to the quality of the pain:
If I don’t do anything and rest arm little pain, if I do any task the pain will become more.
The respondent disagreed with the proposition that he has no pain at all when not doing anything and said ‘I always have the pain’. In that context, the respondent confirmed that, on the advice of his general practitioner, he takes Panadol four or five times a week and at night and some mornings as well.
The respondent was asked about returning to work in light duties. He said that he had contemplated getting a forklift licence and had asked the insurance company, although the request had been refused. In any event, forklift driving would not be a suitable job for him because it would involve lifting pallets.
When challenged about the suitability of such work, and his capacity to drive, the respondent explained further that:
… even when I drive a motorcar now after one-and-a-half hours I get pain. So I have to get constant break so if the job allows me to get the constant break then it’s okay.
More broadly, the respondent confirmed that he had been certified fit for light work, although he would ‘have to get constant rest’.
In respect of lifting or packing, the respondent said that he could not lift with his right arm at all, but that he could do light packing if it was ‘less than five kilos’.
In respect of ‘light work’ such as assembling boxes, quality checking and packing, he said that he would ‘try’ and explained:
… I can do, but I can’t do it continuously. I can only do four or five hours a day, and I need to get constant breaks because I get pain.
He said he knew this because of his experiences doing household duties. He said that would be the position with ‘any type of work’:
… I need a constant break. As long as I get the constant break, I will try. I’m not telling [you] I can’t — I will try.
The respondent gave essentially the same evidence in a somewhat expanded form in re‑examination. In particular, he confirmed that repetitive uses of his right arm bring ‘severe pain’.
He was asked about whether he could cope repetitively lifting items weighing two or three kilograms and said he had not tried to do it but he thought he would only be able to do it for half an hour and if he did it more than that, he would have pain.
In that connection, he was asked whether he thought that he would be able to work as a packer five days a week and said:
No, what I have told the doctor is I can try to do four to five hours a day but I have to have break every other day so I may be able to do three days.
He thought that he could do such work 10 to 15 hours per week.

As to whether he had tried to use his right arm repetitively for a prolonged period to undertake an activity, the respondent referred to mopping at home and said:
It’s nearly half an hour. So I mopped and I was trying to squeeze, and it became very pain.
Finally, the respondent confirmed that in March his general practitioner had told him to take Panadol and suggested physiotherapy, but that his request for physiotherapy had been rejected (we interpolate — rejected by the applicant’s insurer).
The respondent’s wife swore an affidavit on 13 September 2023 in which she deposed to her observations concerning her husband’s pain, medications and limitations. As noted, she was not required for cross-examination.

The medical evidence

As noted, the medical evidence was received in the form of reports and other records tendered by the applicant and respondent respectively.
In particular, the respondent tendered reports from his treating general practitioner, Dr Mary Murallidaran, together with medico-legal reports from a hand surgeon, Mr Damian Ireland; another hand surgeon, Dr Murray Stapleton; and an occupational physician, Dr Robyn Horsley.
For its part, the applicant tendered medico-legal reports from an orthopaedic surgeon, Mr Rodney Simm; another orthopaedic surgeon, Mr Ash Chehata; and an occupational physician, Dr Mary Wyatt.

Dr Murallidaran

Dr Murallidaran reported first in December 2020. On 21 April 2023, however, she reported that the respondent had a mild pain in his right hand and was taking pain relief while waiting for approval for physiotherapy. She thought that his condition was getting better, although she could not give a prognosis until he was seen by a physiotherapist. She considered him to have a capacity for light duties, four hours per day, three days per week, for four weeks. She considered that he should avoid lifting weights of more than two kilograms.
The same opinion was expressed more proximately to trial, on 14 August 2023, in which Dr Murallidaran was also asked about whether the respondent’s condition had stabilised and said:
Eventough [sic] his medical condition is getting better than (can work 4-5 hrs 3 days per week) before surgery (could not perform work), it is too early to come to a concrete decision on this.
In that connection, she confirmed that he was taking pain relief as required and was awaiting approval for physiotherapy.

Mr Ireland

Mr Ireland first reported on 18 November 2020 and recorded episodic pain in the respondent’s right forearm and wrist. He said that the respondent’s condition had not stabilised and that once the fracture had soundly united the removal of the internal fixation device (metalware) would be appropriate. He thought that the prognosis was excellent for the fracture, but uncertain for the right wrist.
In that context, he considered that the respondent would be unable to return to his pre‑injury employment and unlikely to be able to return to heavy manual work. As to any capacity for ‘suitable employment’,[4] Mr Ireland said:
The worker does have the capacity to return to appropriate and suitable employment, with the restrictions that he is unable to engage in work that requires rapid or repetitious [movement] with the right upper limb or requires him to lift weights in excess of 5 kg or work that requires constant forearm rotation.
[4]See WIRC Act, s 3 (definition of ‘suitable employment’).
Mr Ireland examined the respondent again on 2 August 2023 and noted that the respondent’s symptoms had improved. That said, he recorded the respondent’s complaints of forearm and wrist pain provoked by use.
Mr Ireland considered the respondent to have ‘residual wrist and forearm symptoms’ and considered that there was ‘unlikely to be any further improvement’. In that connection, he expressed the view that the respondent was restricted from lifting weights in excess of 15 kilograms; which restriction was permanent.
Mr Ireland considered the respondent to be unable to return to his pre-injury work, but that he would be capable of rejoining the workforce in ‘suitable work’, mindful of the restrictions identified. In particular, Mr Ireland referred to ‘factory work or process work’ and later stated, relevantly:
In my opinion the worker is able to re-engage in [the] workforce at suitable employment with work that does not require him to lift weights in excess of 15 kg and does not require repetitious gripping movements with his right dominant hand. …

Dr Horsley

Dr Horsley reported on 3 December 2020. She did not consider the respondent to have reached ‘maximum medical stability’. Based on his presentation, Dr Horsley considered him to have no capacity to return to a manual role working right-handed.
In that context, Dr Horsley considered the respondent to be fit for only ‘very limited sedentary work’ and, having regard to his educational background and other such features, that, ‘on presentation today’, he had ‘no capacity for work’. Dr Horsley said that she looked forward to reviewing the respondent in about six months in order to ascertain his ‘long-term term capacity for work’.
Dr Horsley reported again on 30 March 2023. She recorded that there had been a significant improvement in the respondent’s right arm symptoms since removal of the metal in January 2023. That said, she recorded the quality of his ‘discomfort’ with activity, particularly ‘repetitive pushing, pulling, repetitive lifting, repetitive supination, pronation, and forceful activities involving the right hand’.
Dr Horsley considered that given the length of time since injury, and the ongoing nature of the respondent’s symptoms, they were ‘likely to persist’. It followed that pre-injury duties and heavy manual work were ‘no longer an option’ and she considered the following work restrictions to be appropriate:
·Avoidance of repetitive over reaching;
·Avoidance of repetitive pushing and pulling;
·Avoidance of forceful activities, especially activities such as turning taps and jars;
·Avoidance of lifting items greater than 8 kg to 10 kg except on an occasional basis;
·Avoidance of lifting items up to 8 kg on a repetitive basis;
·Avoidance of repetitive pronation and supination;
·Avoidance of using tools with a vibratory component.
Thereafter, Dr Horsley noted the respondent’s potential interest in Uber driving and considered him to need ‘a functional restoration program to improve his confidence in the strength of his right arm’. She later referred to that and other steps in connection with a ‘graduated return’ to work.
Dr Horsley was subsequently asked to provide a supplementary report and was provided with additional material, particularly:
·Medical Report Dr Wyatt dated the 13^th April 2023;
·Medical Report Mr Ash Chehata dated the 15^th May 2023;
·Suitable Employment Report [of ‘Recovre’] dated the 5^th May 2022;
·Supplementary Suitable Employment Report [of ‘Recovre’] dated the 9^th June 2023.
Dr Horsley reported again on 28 July 2023. She there repeated many of the observations made in her earlier report, and re-stated the applicable work restrictions.
Dr Horsley specifically addressed the ‘suitable employment’ options identified in the supplementary suitable employment report from Recovre. In respect of work as a ‘packer’, Dr Horsley considered that it was ‘unlikely to be suitable [for the respondent] beyond part time hours’.
Dr Horsley then referred to the report of Mr Chehata and stated:
I note … [Mr Chehata’s] view that ‘Mr Perumal sustained a severe crush facture of the radius that required internal fixation. He presents with ongoing weakness in the right forearm.’ ‘Mr Chehata noted that the fracture had reunited. He noted that Mr Perumal’s reason for not returning back to work for the last five years was a combination of his previous back pain, epilepsy, limited English and an altercation with another employee at work, contributing to his employment status rather than a purely organic forearm fracture. Mr Chehata recommended a current lifting capacity of 5kgs, but could transition to 10–15kgs. There is no restriction in terms of his capacity with regard to repetition or duration and he himself is keen to return to some form of employment.’
I agree with Mr Chehata. Our opinions are similar and outlined in my last report on the 30^th March 2023. Since removal of the plate and on the 3^rd January 2023, Mr Perumal’s symptoms have resolved considerably. He is ready to look at return to work.
Dr Horsley thereafter stated:
Because he has been out of the workforce for four years, it will need to be a graduated return. He requires the involvement of perhaps a rehabilitation physician, in a pain management setting to oversight a functional restoration program, to educate him and allow him to gain confidence in the strength of his right arm. Hands on physiotherapy has no place.
…
I believe that the work restrictions outlined above are likely to improve considerably, with a functional restoration program, focused on education of his condition and a gradual increase in strengthening under the watchful eye of a rehabilitation or pain management specialist.

Dr Stapleton

Although it is by no means unheard of, Dr Stapleton appears to have examined the respondent and reported at the request of the applicant in April 2021 and later examined the respondent and reported at the request of the respondent in March 2023.
Interestingly, in 2021, Mr Stapleton appears to have contemplated that there could be psychological or other problems affecting the respondent’s presentation. However, in 2023, Mr Stapleton made no mention of such factors. He considered the current problem to be ‘constant pain in the right upper limb’, which was less after removal of the metalware. He wondered why physiotherapy had not been approved and suggested that with ‘regular and aggressive physiotherapy [the respondent] could return to work, not with unrestricted duties, but for several months of light duties’. In that regard, he did not consider the respondent to have reached ‘maximum medical improvement’. He considered that the respondent was not presently fit for any work.

Mr Simm

Mr Simm examined the respondent in November 2020 and considered there to be a ‘substantial psychological contribution’ to the respondent’s condition. In January 2021, Mr Simm viewed an x-ray and provided a supplementary report. He considered the x‑ray to show ‘sound union’ of the fracture and that ‘no formal restrictions on activities are required’. Mr Simm did not examine the respondent after the metalware had been removed, thus his opinion is of limited relevance.

Mr Chehata

Mr Chehata reported in May 2023 and recorded a history in which only the respondent’s lifting capacity has been affected (and perhaps also opening jars). He noted that the respondent was awaiting physiotherapy, but was ‘very sceptical of any physiotherapy that will change the natural history of the removal of metal’.
Mr Chehata noted a presentation of ‘ongoing weakness’ in the right forearm, and plainly contemplated the intrusion of non-organic factors. In respect to any occupational restrictions, he stated:
… he can certainly perform all activities above shoulder height. He has no restrictions. It is unclear to me why his lifting capacity has been restricted to 5 kg and I would think that this could be transitioned at least up to 10 to 15 kg. There appears to be no restriction in terms of his capacity with regard to repetition or duration and he himself is keen to return back to some form of employment.

Dr Wyatt

Dr Wyatt first reported in November 2020. At that time, the fracture had not yet healed and she said that the respondent had not reached ‘maximal medical improvement’ and would require further evaluations. That said, she considered that he could work full time with ‘appropriate restrictions’. She did not consider him to be fit for duties which he had performed in the past.
Dr Wyatt reported again in February 2021 and referred to an x-ray in December 2020 showing ‘bone healing’. Dr Wyatt considered that there were ‘no other complications’ and that the respondent could ‘now return to normal duties’, although she said that it ‘is probably best doing some modified duties for the first few weeks’. She did not consider that any restrictions were required, and thought that the respondent would build up strength in his right arm over time.
Dr Wyatt examined the respondent again and reported in June 2021. In particular, she considered the ‘suitable employment’ options of packer, order picker and road traffic controller and considered the respondent to have capacity to perform all tasks in all three roles. She did not consider that he required ‘work hardening’. In her view, work in such roles would ‘support him getting back to his work as a steel fixer’.
Dr Wyatt examined the respondent again and reported in two separate reports, each dated 13 April 2023.[5]
[5]The text of the second report suggests that it was provided subsequent to a letter dated 13 June 2023.
In the first such report, Dr Wyatt noted that the respondent’s level of pain had dropped since the metalware had been removed. She also noted that the respondent reported ongoing forearm pain and residual wrist soreness. In that context, Dr Wyatt considered the respondent’s clinical condition to be ‘much the same’ and again said that he was fit to work full time as a packer, order picker and road traffic controller.
That said, in the second of her reports dated 13 April 2023, Dr Wyatt said that the respondent was ‘fit for work that excludes repeated forceful grasping or pushing/pulling with force with his right arm’. Again, she did not consider that a period of ‘work hardening’ was medically necessary, although she thought that it might assist the respondent in ‘getting back into the swing of work’.

The Judge’s reasons

Broadly speaking, the primary judge’s reasons comprise a comprehensive account of the issues and evidence in the proceeding.
Among other things, the judge identified that:
(a)the relevant legal principles were not in dispute, and that neither party sought to raise any legal principle;[6]
(b)the dispute was whether the respondent had ongoing consequences from the right upper limb injury which were serious, either in respect to pain and suffering or loss of earning capacity;[7] and
(c)in that connection, there was a dispute concerning the respondent’s ‘after injury’ earning capacity and particularly whether he satisfied the ‘statutory formula’ and had proven ‘a loss of earning capacity that will permanently be productive of financial loss of 40 per cent or more’.[8]
[6]Reasons [11].
[7]Ibid [12].
[8]Ibid [81]–[82]. See WIRC Act, ss 325(2)(e)–(g).
In that context, the judge outlined the substance of the respondent’s affidavits and oral evidence and concluded that the respondent had given ‘credible and reliable evidence’ that ‘withstood the challenge to him during cross-examination’ and could be relied upon.[9]
[9]Reasons [38].
The judge also summarised the medical and related evidence as well as the applicable legal principles. In that connection, the judge noted the parties’ agreement that the figure for ‘without injury’ earnings was $46,955 gross per annum, and that 60 per cent of that figure was $28,173 gross per annum; which translated to $542 gross per week. The judge thereafter stated, correctly, that:
… if the plaintiff now has a capacity for suitable employment that will be productive [of] ‘after injury’ earnings of $28,173 per annum, then he will fail to satisfy the statutory formula.[10]
[10]Ibid [80].
As earlier noted, the judge analysed the evidence relating to the respondent’s pain and suffering consequences and concluded that whilst they were ‘not trivial and might be described as “marked” or “significant”’, they could not be fairly described as ‘“very considerable”’.[11]
[11]Ibid [98].
As to pecuniary loss, his Honour drew together ‘a few threads from the medical evidence’, as follows:
100First, I accept the defendant’s submission that Mr Simm, in his reports, expected the plaintiff to make a full recovery from the forearm fracture. Of course, Mr Simm has not seen the plaintiff since the metalware was removed. That limits the weight I attach to his opinion.
101Second, regarding the orthopaedic opinion from Mr Chehata relied on by the defendant, to effectively submit that “after injury” there is little or no ongoing impairment consequences. I do not accept that aspect of the opinion from Mr Chehata. He appears to have approached the assessment of the plaintiff on the basis that, in his words, other elements are at play rather than the organic nature of the forearm fracture. Having observed the plaintiff in the witness box, and in the context of how this case was presented, I do not accept Mr Chehata’s evidence that non-organic factors are the cause of the plaintiff’s ongoing symptoms, if that is what Mr Chehata meant to convey.
102Further, Mr Chehata’s opinion of effectively a complete recovery, and no ongoing organically caused impairment or impairment consequences, is against the totality of the medical evidence and the evidence from the plaintiff that I accept.
103Third, Dr Wyatt assessed the plaintiff on three occasions at the request of the defendant. In her most recent report, she accepted that the plaintiff had some ongoing physical symptoms and restrictions from the right forearm injury. She accepted that there was some reduction of function in the right arm. When she last saw the plaintiff, she described the clinical situation as much the same which suggests it is permanent.
104Fourth, Mr Ireland also accepted some ongoing restriction from the right forearm injury. He suspected the development of some mild degenerative changes at the distal radial ulnar joint, which accounted for the wrist pain and restriction of forearm pronation. He said work remained a contributing factor to the residual wrist and forearm symptoms and examination findings, and placed a restriction from lifting weights in excess of 15 kilograms.
105Importantly, Mr Ireland ruled out the plaintiff returning to his pre-injury work. Ultimately, he opined the plaintiff could return to work where he was not required to lift in excess of 15 kilograms and did not require repetitive gripping movements with his right dominant hand. His opinion also tends to a conclusion that the condition is stable and permanent.
106In several respects, Mr Ireland’s opinion is like Dr Wyatt’s, who also described some ongoing reduction in right arm function and right-hand grip strength, although ultimately opined that the plaintiff was fit for full-time work as a picker, packer or road traffic controller.
107Fifth, Dr Horsley similarly placed restrictions on the plaintiff’s “after injury” capacity for work. She placed restriction for repetitive reaching, pushing/pulling, forceful activities and to avoid lifting items greater than 8-10 kilograms, except on an occasional basis. She noted his considerable vocational barriers to returning to work and commented upon the need for assistance and improvement in his functional tolerances before returning to work. She opined that he was currently fit to commence a graduated return to work.
108Dr Horsley described her opinion as like much of the opinion of Mr Chehata and specifically the current restriction for repetitive or lifting weights beyond 10-15 kilograms. Apart from the prospect of improving his employability and strengthening the right arm, perhaps with the guidance of a rehabilitation specialist, Dr Horsley’s opinion also supports a conclusion that the impairment consequences by way of lifting restrictions and repetitive use of the right arm, are permanent.
109Sixth, I note the opinion from the plaintiff’s long-term treating general practitioner, Dr Murallidaran, that the plaintiff had ongoing symptoms, described by her as mild pain. She also placed restrictions on work, although her opinion was that the plaintiff should attempt light duties for four to five hours a day, three days a week, for four weeks. It appears she intended to convey that there should then be a re-assessment of work capacity after that four-week period. In that sense, her opinion is like Dr Horsley, that the plaintiff has a current capacity to undertake a return to work on limited hours and then assess the situation in a graduated manner. I note that she put a current lifting restriction on weights of more than 2 kilograms.
110In summary, the whole of the medical evidence tends to a conclusion that the plaintiff has ongoing aching symptoms in the right forearm and wrist that are aggravated to pain by repetitive use or lifting with the right forearm and hand. He requires over-the-counter painkillers at night after days when using the right arm. He is limited for activity that requires the manual use of the right arm. The condition is now stable and permanent. He is currently fit for light modified duties, for part-time hours with the prospect of increasing his hours depending upon how he copes with a graduated return to work.
111Finally, the medical evidence must be considered in the context of the evidence from the plaintiff of his ongoing symptoms and restrictions.

Thereafter, the judge noted that the respondent’s lack of education, training, English language and computer skills meant that the argument concerning ‘after injury’ capacity for suitable employment was focused upon ‘a range of manual-type employment’.[12]
[12]Ibid [112].
In that context, the judge concluded that the evidence supported a conclusion that the respondent ‘has an ongoing ache in his right forearm that escalates to pain with repetitive activity, such as lifting or gripping items with his right hand and arm’.[13]
[13]Ibid [113].
From that point, the judge reasoned relevantly as follows:
114I also consider that the plaintiff’s evidence of the difficulty that he has with pain after performing daily activity such as mopping, in combination with the medical evidence as summarised, including the evidence from his long-term treating general practitioner Dr Murallidaran, supports the conclusion that the plaintiff at present could undertake light work for four hours per day, three days per week.
115There is a prospect that with a functional program, or with some work conditioning, that the plaintiff could increase beyond three days a week. In my judgement, remembering that I am conducting an analysis for the purposes of a gateway provision, on a consideration of all the evidence, I conclude that, “after injury”, the plaintiff has a current restriction for light work, four hours per day, four days per week.
116Pausing here, a consideration of the plaintiff’s residual capacity for “suitable employment”, his age, lack of formal education, lack of English language skills and his ongoing impairment consequences must all be synthesised. But, as mentioned, to some extent that is less relevant in this proceeding because those same factors meant that “without injury” the plaintiff faced significant barriers as to the type of work for which he was suited.
117I accept that the test for pecuniary loss serious injury involves an assessment as to the plaintiff’s capacity for “suitable employment”, rather than the availability of work or his overall employability. But, by the same token, it is relevant that, even before he was injured, he was only ever going to be suited to manual work.
118In that context, for a man who was only ever suited to manual work, self-evidently, “after injury”, the question is whether there are manual jobs for which he is now physically suited, bearing in mind the conclusions I have reached as to ongoing restrictions.
119To be clear, I also conclude that the plaintiff “after injury” is unfit to return to his pre-injury employment. The medical evidence supports such a conclusion.
120I consider that the inability to return to his pre-injury employment, or similar heavy, manual work, is a “very considerable” consequence to the plaintiff and the first step in the statutory formula is satisfied.
121Next, having concluded that the plaintiff has a current capacity “after injury” to perform 16 hours per week of “suitable employment” and turning to the specific jobs identified by the defendant, in my opinion it is the job as a packer that is most likely “suitable employment”.
Upon those findings, the judge proceeded to consider the ‘suitable employment’ options identified in the Recovre reports, particularly in respect of earnings in light manual work as a ‘packer’. The judge calculated 16 hours per week of such work to gross $379.52, or $368.80 in the case of a job as an ‘order picker’.[14] In each instance, the figure was well below the earlier identified threshold of $542 gross per week. In any event, the judge concluded as follows:
… regardless of which of the Recovre jobs is considered for the purposes of “after injury” employment, at sixteen hours per week, the plaintiff is currently below the 60 per cent threshold in any of those employments, whether they are “suitable” or not. Accordingly, the plaintiff satisfies the statutory formula in s 325(2)(e)(i) and (f) [of the WIRC Act].[15]
[14]Ibid [123]–[124].
[15]Ibid [128].
The judge then moved to consider the question whether, ‘after injury’, the respondent had proven a loss of earning capacity that ‘will permanently be productive of financial loss of 40 per cent or more, as required by s 325(2)(e)(ii) [of the WIRC Act]’.[16] In that regard, the judge relevantly concluded as follows:
… on a consideration of the medical evidence and the plaintiff’s evidence, I consider that “after injury” he can perform sixteen hours of light manual work and that will permanently be the limit of his residual capacity for “suitable employment”. …[17]
[16]Ibid [129].
[17]Ibid [131].
In light of the above, the judge granted leave to the respondent to commence common law proceedings for pain and suffering and loss of earning capacity damages.

Consideration

The applicant’s first proposed ground of appeal has earlier been extracted in full. In substance, those contentions of specific factual error are directed to:
(a)whether, on the evidence, the respondent’s symptoms of right forearm and wrist pain were correctly found to have been ‘stable and permanent’;[18]
(b)what finding was made by the judge concerning the respondent’s ‘after injury’ capacity to work in suitable employment;[19] and
(c)whether, on the evidence, the respondent was correctly found to have been limited permanently, ‘after injury’, to 16 hours per week of work in ‘suitable employment’.[20]
[18]Ibid [110].
[19]Ibid [114]–[115].
[20]Ibid [131].
In argument, counsel for the applicant relevantly submitted that:
(a)the substance of the challenge was to the judge’s conclusion that the respondent was permanently limited to 16 hours per week in light work;
(b)in that regard, the judge had ‘misunderstood’ Mr Chehata’s opinion;
(c)in substance, Dr Horsley’s opinion had been the same as that of Mr Chehata, and that of Mr Ireland;
(d)Dr Horsley had only identified presently applicable work restrictions in respect of the respondent, and she had been ‘very positive’ about his ‘likely improvement’ in the future;
(e)indeed, Dr Horsley ‘wasn’t ruling out full-time employment’ which was ‘certainly not out of the picture’; and
(f)the correct findings that the Court should make, upon a ‘real review of the evidence’, were that the respondent had a current capacity for full time hours in suitable employment and that the Court otherwise could not reach any conclusion as to the extent of any permanent restriction.
Some degree of care must be taken with a submission of the latter kind, as it can tend to suggest that the Court may merely re-decide the matter for itself. It is now established that the standard of review on an appeal of this kind is the correctness standard — that is, the question for this Court is not whether it was open to the primary judge to reach the conclusion he reached, but whether he was correct to reach that conclusion. That is because the question whether an injury satisfies the ‘very considerable’ test is one that admits of only two answers: either the injury is a serious injury as defined in the WIRC Act, or it is not. That is, there is ‘but one legally permissible answer, even if that answer involves a value judgment’.[21] Nonetheless, it must steadily be borne in mind that the Court may exercise its appellate power only if satisfied that there was error on the part of the primary decision-maker.[22] In assessing whether error is established, it remains necessary to make proper allowance for the advantages of the trial judge, in particular in seeing and hearing the witnesses give evidence.[23]
[21]Connelly v Transport Accident Commission [2024] VSCA 20, [38] (Beach, Niall JJA and J Forrest AJA) (‘Connelly’), quoting GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 97 ALJR 857, 866 [16] (Kiefel CJ, Gageler and Jagot JJ); [2023] HCA 32.
[22]Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194, 203 [14] (Gleeson CJ, Gaudron and Hayne JJ); [2000] HCA 47; Connelly [2024] VSCA 20, [39] (Beach, Niall JJA and J Forrest AJA).
[23]Fox v Percy (2003) 214 CLR 118, 127–8 [27] (Gleeson CJ, Gummow and Kirby JJ); [2003] HCA 22; Lee v Lee (2019) 266 CLR 129, 148–9 [55] (Bell, Gageler, Nettle and Edelman JJ); [2019] HCA 28.
We have thus considered the evidence for ourselves. We accept that we are in as good a position as the primary judge to assess the medical evidence, which consists solely of written reports. But we have made due allowance for the judge’s advantage in seeing and hearing the respondent give evidence.
We note that it was uncontroversial that:
(a)assessments of present and future capacity for ‘suitable employment’ should be undertaken by reference to the whole of the relevant evidence;
(b)it may be possible to reach such conclusions even when the medical evidence does not specifically state what the extent of likely future improvement in the respondent’s work capacity might be; and
(c)assessing whether any such limited capacity is permanent is a matter of judgment involving an element of prediction into the future.[24]
[24]Yirga-Denbu v Victorian WorkCover Authority (2018) 57 VR 545, 573 [88]–[89] (Priest, Beach and Niall JJA); [2018] VSCA 35; Cardoso v Staff Australia Payroll Services Pty Ltd [2019] VSCA 139, [47] (Kaye, McLeish and Niall JJA).
It was also uncontroversial that the respondent had suffered a nasty injury to his dominant right arm that had required surgery (twice). Further, his oral evidence was accepted by the judge to be credible, reliable and able to be relied upon. In that regard, the respondent gave evidence concerning the ongoing ache in his right forearm that escalates to pain with repetitive activity. The judge referred to the detail of that evidence and made that finding; which is unchallenged.[25]
[25]Reasons [31]–[33], [36]–[37] and [113].
The respondent also gave evidence that he considered his condition to be such that he could try to work as a packer for four to five hours a day, but that he would have to break every other day and so may be able to do only three days.[26]
[26]Ibid [37].
It is from that perspective that the judge relevantly approached the ‘threads’ of the relevant medical evidence.[27]
[27]Ibid [99]–[111].
The applicant was not critical of most of the judge’s analysis of the relevant medical evidence. In particular, the judge observed that the respondent’s long-time general practitioner, Dr Murallidaran, expressed an opinion which was much like the respondent’s own assessment of his capacity, although she considered that he should attempt such duties for four weeks and then be reassessed.[28]
[28]Ibid [109].
However, counsel for the applicant submitted that the judge had misunderstood the opinion of Mr Chehata. That submission cannot be accepted. As earlier noted, Mr Chehata plainly contemplated the intrusion of non-organic factors and his report did have the flavour of ‘effectively a complete recovery’ about it.[29]
[29]Ibid [101]–[102].
In any event, the applicant’s point was that Dr Horsley had, in substance, agreed with the opinion of Mr Chehata and, for that matter, Mr Ireland, and that her opinion did not support the findings of the judge concerning the extent and permanence of the respondent’s limited capacity for ‘suitable employment’.
Most of the relevant parts of the reports of Dr Horsley have earlier been extracted. Clearly, in her final report, she used the word ‘agree’ with reference to certain summarised elements of the opinion of Mr Chehata; and immediately thereafter she stated that the opinions are ‘similar’.
Contrary to the submission of the applicant, the qualification introduced by the word ‘similar’ militates against any kind of wholesale adoption by Dr Horsley of the opinions of Mr Chehata. That must especially be so in circumstances in which several important elements of the stated opinions of Mr Chehata and Dr Horsley are quite different. In particular:
(a)Dr Horsley noted that there had been ‘bony union’ of the fracture, although the respondent ‘remains symptomatic’; by contrast, Mr Chehata suspected that ‘there are other elements at play rather than the organic nature of the forearm fracture, which has completely united’; and
(b)Dr Horsley said that the respondent was unable to return to the full range of labouring duties, and proposed a list of work restrictions, many of which were directed to avoiding repetitive activity; by contrast, Mr Chehata said that the respondent had no occupational restrictions, including ‘in terms of his capacity with regard to repetition or duration’.
In the circumstances:
(a)Dr Horsley’s use of the words ‘agree’ and ‘similar’ are more indicative of professional courtesy between colleagues than any kind of true alignment between the respective opinions; and
(b)the submission to the effect that Dr Horsley agreed with the whole of the opinions of Mr Chehata cannot be accepted.
The position in respect of the opinions of Mr Ireland is a little different, as he ruled out a return to pre-injury work, would impose restrictions including in respect of ‘repetitive gripping’ and considered the respondent’s condition to be permanent.
However, Mr Ireland was also of the opinion that the respondent was fit for full time work as a picker, packer or road traffic controller. In that regard, the judge’s analysis exposed some of the differences between the opinions of Mr Ireland and Dr Horsley, as well as the similarities.[30]
[30]Ibid [104]–[108].
In any event, having considered the various reports for ourselves, we reject the submission that the opinion of Dr Horsley might simply be said to have been the ‘same’ as that of Mr Ireland; and it is plain from the judge’s reasons that his Honour did not consider their opinions to be wholly the same.
That leads to the applicant’s central point concerning the effect of Dr Horsley’s opinion, as well as the judge’s conclusion that 16 hours of light manual work would permanently be the limit of the respondent’s residual capacity for ‘suitable employment’.[31]
[31]Ibid [108], [110] and [131].
In that regard, as noted, the applicant cast doubt upon what the judge had in fact found in respect of the respondent’s residual capacity for ‘suitable employment’.
Again, the submissions of the applicant might be thought to direct attention to no more than a mild degree of awkwardness in the relevant parts of the written reasoning, rather than any real doubt or error in what was concluded.
In that regard, the judge determined that the respondent had a ‘present’ capacity for ‘light work for four hours per day, three days per week’.[32] Plainly, that conclusion was influenced by the respondent’s own evidence and the opinion of Dr Murallidaran. It was also a determination of the respondent’s capacity absent any prospect of a ‘functional rehabilitation program’ or ‘work conditioning’.[33] So much is made clear at the commencement of the following paragraph of the judge’s reasons, in which he referred to the ‘prospect’ of such a program, or work conditioning, leading to an increase in the respondent’s capacity ‘beyond three days a week’.[34]
[32]Ibid [114].
[33]Ibid [115]
[34]Ibid.
Nonetheless, the applicant sought to cast doubt upon that relatively plain reading of the judge’s reasons by reference to his subsequent use of the words ‘current restriction for light work, four hours per day, four days per week’.[35] In context, however, it is tolerably clear that the judge was speaking in the present concerning his assessment of any future limit upon the respondent’s capacity for work in the event that he undertook ‘a functional program’ and/or ‘some work conditioning’. As noted during the hearing, such language is not infrequently seen in judgments in serious injury applications as a consequence of the perceived operation of the provision of the WIRC Act that requires the judge to ‘assess … serious injury … at the time that the application is heard’.[36]
[35]Ibid [115].
[36]WIRC Act s 325(2)(j).
In any event:
(a)there can be little doubt that what the judge was saying was that the present limit of the capacity of the respondent for ‘suitable employment’ was four hours per day, three days per week, but that his permanent limit for such employment could be, and therefore was, four hours per day, four days per week; and
(b)consequently, the suggestion that the judge’s language is indicative of any kind of error must be rejected.
More fundamentally, however, the applicant submitted that the evidence, particularly the opinion of Dr Horsley, did not support the finding of the judge concerning that permanent limit. In particular, the applicant pointed to the final paragraph in the final report of Dr Horsley in which she contemplated that the ‘work restrictions outlined above are likely to improve considerably, with a functional restoration program … and a gradual increase in strengthening’.
Plainly, no statement in the report of Dr Horsley, or any other medical witness, allocated a precise number of further hours of weekly work to any such anticipated degree of improvement in the work restrictions applicable to the respondent. That said, no such precise figure was strictly required.
The real question is whether, in context, the evidence, particularly that of Dr Horsley, did not support the judge’s conclusions that the limit was four hours per day, four days per week and that the condition of the respondent was stable and therefore such a limit was permanent.
Medical practitioners are, of course, commonly asked to venture an opinion concerning the stability and the prognosis of a condition. In that sense, medical opinions commonly deal with the subject’s past, present and likely future condition.
If the condition of the subject is not stable or thought to be able to be assessed or likely to be permanent, that is commonly said directly. In the present case, the evidence includes several instances of exactly such a response.
(a)For example, in his first report, in November 2020, Mr Ireland considered that the respondent’s condition had ‘not stabilised’.
(b)Similarly, at the same time, Dr Wyatt reported that the fracture had not yet healed and that the condition of the respondent would require further evaluations.
(c)Likewise, but much more recently, Mr Stapleton said that the respondent had ‘not reached maximum medical improvement’ and that ‘an assessment of whole person impairment is not appropriate at this time’.
(d)Perhaps a little less definitively, Dr Murallidaran said that ‘it is too early to come to a concrete decision’.
If, however, the condition of the subject is stable, and considered likely to continue, that is sometimes said directly; although it is also commonly implicit in the medical practitioner’s stated assessment.
(a)For example, in his report provided shortly prior to trial, Mr Ireland said that there was ‘unlikely to be any further improvement’ and that the restrictions identified in his report were ‘permanent’.
(b)By contrast, it was implicit in Dr Wyatt’s assessment, and her statement that the respondent’s clinical condition had largely been ‘much the same’, that she considered it to be stable and reliably capable of assessment into the future.
In that connection, the judge’s conclusions that both Mr Ireland and Dr Wyatt considered the respondent’s condition and capacity to be permanent were not said by the applicant to be erroneous.[37]
[37]Reasons [103] and [105].
In that context, we return to Dr Horsley’s reports, the sequence and relevant substance of which we have earlier outlined.

Of present significance, in her first report, in December 2020, Dr Horsley noted that the respondent’s condition had ‘not reached maximum medical stability’ and that he needed to be reviewed in six months’ time in order ‘to ascertain [his] long-term capacity for work’.
When she next reported, in March 2023, Dr Horsley referred to the ‘significant improvement’ in the respondent’s symptoms, but thereafter stated:
… He now experiences discomfort that comes and goes with activity, such as repetitive pushing, pulling, repetitive lifting, repetitive supination, pronation, and forceful activities involving the right hand. …
In that regard, Dr Horsley obtained a history that, in emphasis, was broadly consistent with the respondent’s evidence at trial; in that it highlighted the relevance and importance of repetitive use of his right arm.
In respect of prognosis, Dr Horsley commenced her opinion as follows:
Given the length of time since the injury and the ongoing nature of the symptoms, I believe that the symptoms are likely to persist. …
Dr Horsley thereafter stated various recommended work restrictions, many of which were directed to the avoidance of repetitive use of the respondent’s right arm, as well as his current functional tolerances. In connection with the respondent’s own interest in pursuing Uber driving, she said that he would need a ‘functional restoration program to improve his confidence in the strength of his right arm’. That said, Dr Horsley considered the respondent to be ‘permanently unfit to return to his role as a Labourer’ and again referred to steps including a functional restoration program.
Notably:
(a)Dr Horsley’s report reads as an assessment of the respondent’s long term capacity for work;
(b)unlike her first report, Dr Horsley did not say that the respondent had not reached ‘medical stability’; and
(c)albeit that Dr Horsley might be said to have contemplated a potential for some further improvement, particularly in the respondent’s confidence in the strength of his right arm, she was plainly of the view that his symptoms would persist and that repetitive use of the right arm should be minimised or avoided.
As noted, Dr Horsley was later given a collection of further materials — particularly, reports of Mr Chehata and Dr Wyatt, as well as the ‘suitable employment’ reports prepared by Recovre — and asked to provide a supplementary report.
The Recovre reports outlined the duties pertaining to the proposed ‘suitable employment’ options, particularly two positions as a packer. In respect of the first such position, it observed, among other things, that:
On average, across the lines, the workers can be expected to pack around 14 bags (one box) per 30 seconds.
In that context, Recovre observed that ‘bilateral arm use is required constantly at or between 700-900mm height’ and that ‘weights handled range from 300gm bags to 3kg bags on one line’. Unsurprisingly, those duties were later described as ‘light’, but requiring ‘repetitive bilateral arm and hand movements’.
In respect of the second position, which seems to have involved both packing and picking, the Recovre report noted that most staff were ‘full time’, although there was ‘some opportunity’ for part-time employment. In any event, it recorded that:
Forward reaching is required constantly across the work day. Reaching to pick items could be completed with either arm or alternated between the two if desired.
…
Both upper limbs are used throughout the work day at a constant rate.
In short, both positions contemplated the constant and repetitive use of the arms.
As earlier noted, Dr Chehata was of the view that the respondent could work without restriction upon ‘repetition or duration’. That said, his report records only that the respondent’s ‘lifting capacity’ was affected (and perhaps opening jars).[38]
[38]Mr Chehata records receiving ‘documentation’, but does not refer to any Recovre report. His report pre‑dates the second Recovre report.
For her part, Dr Wyatt also records a history that includes little if any mention of pain provoked by repetitive use of the right arm. In that context, she considered the respondent to be fit to work full time as a ‘packer, order picker and road traffic controller’.
Dr Wyatt’s subsequent report seems to have been provided after being given the second Recovre report. In that connection, and perhaps prompted by aspects of the duties there stated, Dr Wyatt considered the respondent to be ‘fit for work that excludes repeated forceful grasping or pushing/pulling with force with his right arm’. That said, she considered that all three of the roles identified by Recovre ‘fit those recommended restrictions and are suitable’.
In light of the above, it seems doubtful that Dr Wyatt obtained much in the way of a history of pain provoked by repetition, and most unlikely that Mr Chehata did. Therefore, unlike the above opinion of Dr Horsley, neither Mr Chehata’s report nor Dr Wyatt’s report are likely to have been based in a history of the respondent’s condition like that of which he gave evidence at trial. In that sense, it is unsurprising that the judge substantially rejected the opinion of Mr Chehata, and accepted only parts of the opinion of Dr Wyatt.[39]
[39]Reasons [101]–[103] and [106]. See also Palmer Tube Mills (Aust) Pty Ltd v Semi [1998] 4 VR 439, 448 (Brooking, Tadgell and Buchanan JJA).
In any event, it is plain that the material considered by Dr Horsley for the purposes of her supplementary report included opinions that the respondent was and would remain fit for full time work, including as a packer.
In that context, Dr Horsley summarised aspects of her earlier expressed opinion and re‑stated her recommended restrictions. Unlike her earlier report, Dr Horsley’s supplementary report includes no specific section directed to the respondent’s prognosis; which is unsurprising, as she did not re-examine the respondent for the purposes of her supplementary report.
In any event, Dr Horsley directly addressed Recovre’s three ‘suitable employment’ options as follows:
Provided Mr Perumal is working within the restrictions as outlined above, I believe that working as a road traffic controller is potentially within his physical capacity, after the recommendations are put in place as outlined above. He would require training as a road traffic controller.
I believe that he would have difficulty with the repetitive nature of a picker/packer role, and the picks would need to be within the restrictions as outlined above. This is unlikely to be suitable beyond part time hours.
An order picker role is unlikely to be suitable because of the manual component, generally involved.
Plainly, Dr Horsley was doubtful about whether the respondent could work as a road traffic controller, or as a packer, and stated quite directly that a role as a picker was unlikely to be suitable. In respect of packing, in particular, Dr Horsley emphasised the ‘repetitive nature’ of the job, and expressed the view that it was unlikely to be suitable beyond ‘part time hours’.
Counsel for the applicant submitted that the extracted passage was directed only to the respondent’s present capacity for work, and not to any future capacity. That would, however, be surprising in a report that was no more than supplementary to an earlier report addressing the respondent’s long term capacity for work. Moreover, it does not naturally read in the manner sought to be suggested; in particular, aspects of the language tend to embrace the present as well as the foreseeable future (‘would require training’; ‘would have difficulty’; ‘unlikely to be’).
In any event, the applicant’s submission was influenced by several subsequent passages in which Dr Horsley again referred to steps including a functional restoration program. In particular, the applicant emphasised the final substantive paragraph of Dr Horsley’s supplementary report, which, as earlier noted, reads as follows:
I believe that the work restrictions outlined above are likely to improve considerably, with a functional restoration program, focused on education of his condition and a gradual increase in strengthening under the watchful eye of a rehabilitation or pain management specialist.
In that regard, the applicant submitted that Dr Horsley was ‘certainly … not … ruling out full-time employment’ and that full-time employment was ‘certainly not out of the picture’.
The applicant’s various submissions concerning that aspect of Dr Horsley’s supplementary report cannot be accepted. In particular:
(a)the supplementary report was just that — supplementary to an extensive earlier report prepared following an examination of the respondent;
(b)in the earlier report, Dr Horsley had already contemplated the potential for a degree of further improvement in the respondent’s condition in the event that, for example, he was able to participate in a functional rehabilitation program; however, she was plainly of the overall view that the respondent’s symptoms would persist and that repetitive use of the right arm should be minimised or avoided;
(c)in the supplementary report, Dr Horsley did not say that the prognosis for the respondent’s condition was other than as she had earlier described it;
(d)in particular, she did not say or suggest that the respondent was likely to return to full time work in any form of ‘suitable employment’;
(e)Dr Horsley expressed her views in respect of the respondent’s capacity for work in respect of the ‘suitable employment’ options proposed, and she did not consider it to be likely that he could work as a packer ‘beyond part time hours’;
(f)the passages to which the applicant directed particular attention essentially said nothing different from that which had earlier been said; and it would be surprising if they did, as the respondent had not been further examined;
(g)in that regard, Dr Horsley did not suggest in those passages, or more broadly, that her assessments concerning the respondent’s capacity for work in the nominated ‘suitable employments’ were in any way provisional or contingent upon any later step, including participation in a functional restoration program;
(h)in particular, she did not say or suggest, for example, that upon participation in a functional restoration program the role of ‘order picker’ would become other than unsuitable or that the respondent would be able to work as a ‘packer’ other than ‘part time’; and
(i)Dr Horsley plainly considered that the respondent’s participation in a functional restoration program could lead to considerable improvement in the work restrictions which she recommended; in proper context, however, that cannot reasonably be read to suggest that his capacity to work in any of the ‘suitable employment’ options considered would be greatly beyond that directly assessed and stated.
In light of the above, we consider that Dr Horsley was contemplating a non-specific and general prospect of a degree of improvement in the respondent’s capacity, without it being able to be said that it would not be necessary for him to take care with use of his right arm or that he would ever be able to work as a packer beyond part time hours.
In the circumstances:
(a)the respondent gave evidence of persisting forearm and wrist ache and pain in his dominant right arm provoked by use, particularly repetition;
(b)most of the evidence was that sedentary or other non-manual work was clearly unsuitable, as was work in unrestricted manual labour, including the respondent’s pre-injury duties;
(c)‘light manual work’ as a packer plainly involved a significant degree of constancy and repetition in the use of the arms;
(d)the respondent did not think that he could work in such duties much more than four or five hours a day, three days per week;
(e)Dr Murallidaran evidently endorsed the substance of the respondent’s assessment, although she assessed his capacity at four to five hours per day for three days per week and contemplated a need for reassessment after four weeks of such work;
(f)Mr Ireland had a different view in various respects, although he considered that ‘repetitious gripping movements with [the respondent’s] right dominant hand’ should be avoided;
(g)Dr Wyatt also had a different view, although she considered that ‘repeated forceful grasping or pushing/pulling with force with the right arm should be avoided’;
(h)Dr Horsley considered that there might be some degree of improvement, if a functional rehabilitation program and other such steps were taken, although it was unlikely to be great improvement, and certainly nothing like a capacity for full time work, in circumstances in which she also considered that the respondent’s symptoms were likely to persist and that he was unlikely to be able to work as a packer ‘beyond part time hours’; and
(i)it was express or implicit in the views of Mr Ireland, Dr Wyatt and Dr Horsley that the condition of the respondent was permanent, or unlikely to change very significantly.
Notwithstanding all of the above, it should be noted that the evidence does not suggest that it is likely that the respondent would ever participate in a functional restoration program or any other such steps, as none of the medical practitioners likely to have been consulted by the defendant’s insurer seem likely have recommended that any such medical or like service be approved.
In that regard, Mr Chehata and Dr Wyatt, in particular, were clearly of the view that the respondent was already fit for full time duties in all of the suggested ‘suitable employments’. Indeed, Mr Chehata specifically stated that he was ‘very sceptical of any physiotherapy’.
Further, it was hardly likely that the respondent — who was not eligible for Centrelink, and not in receipt of weekly payments of compensation — would be in a position to fund his own treatment or participation in such a program.
It follows that, whatever might be said about Dr Horsley’s views concerning the potential effect upon the respondent of a functional restoration program and any other such medical and like services, it was most unlikely that the respondent would ever have had the benefit of such a program or services.
In light of the above, we consider the judge was correct to conclude, in substance, that the permanent work capacity of the respondent might improve slightly in the unlikely event that he ever gained access to a functional restoration program and the like, although the margin of any such improvement was not likely to exceed a total of four further hours of work per week.
In the circumstances, the respondent’s various contentions of error advanced under the aegis of proposed ground 1 must be rejected.

Conclusion

It follows from the above that it is unnecessary to determine either the applicant’s proposed ground of appeal 2 or the respondent’s cross-application seeking leave to appeal.
In the circumstances, the applicant should be granted leave to appeal, but the appeal must be dismissed.
---

[2024] VSCA 107

28 May 2024