Wilkinson v Victorian WorkCover Authority
[2024] VCC 212
•5 March 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-23-03088
| GLEN WILKINSON | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE MACNAMARA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13, 14 and 21 February 2024 | |
DATE OF JUDGMENT: | 5 March 2024 | |
CASE MAY BE CITED AS: | Wilkinson v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 212 | |
REASONS FOR JUDGMENT
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Subject:SERIOUS INJURY APPLICATION
Catchwords: Council urban maintenance office – Back injury dating from 2004 – Wrist injury dating from 2017 – Serious injuries alleged relative to low back and wrist together with psychiatric disorder by way of depression or adjustment disorder – Application based on psychiatric or psychological matters abandoned – No serious injury relative to wrists
Legislation Cited: Accident Compensation Act 1985 (Vic); Workplace Injury Rehabilitation and Compensation Act 2013 (Vic)
Cases Cited:Bezzina v Phi& Anor [2012] VSCA 161
Judgment: Leave granted to bring a damages claim for low back injury relative to both loss of earning capacity, and pain and suffering
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G Hevey with Ms A Tate | Arnold Thomas & Becker |
| For the Defendant | Mr A Moulds KC with Mr P Haddad | Minter Ellison |
HIS HONOUR:
Background
1The plaintiff, Mr Wilkinson, was born in 1964, leaving school at the age of 15 or 16 following study at Orbost High School. He completed three out of four years of an apprenticeship in printing, then worked for six years as a cheesemaker and a further five years as a trades assistant with the then State Electricity Commission of Victoria (Plaintiff’s Court Book (“PCB”) 10). In 1993, he commenced employment with Narracan Shire Council (Transcript (“T”) 25, Lines (“L”) 1‑5). Following a consolidation and reduction of the number of local councils in Victoria in the 1990s, the former Shire of Narracan became a part of the Baw Baw Shire Council, for whom Mr Wilkinson then worked. Initially with the Narracan Shire Council, Mr Wilkinson’s job description was “truck driver, garbage pickup”. Later, as he continued to work for Baw Baw Shire Council, the job description was modified to “urban maintenance handyman, labourer, truck driver” (T123, L2‑5). Mr Wilkinson achieved some promotions and pay increases based, for instance, upon his acquisition of a truck heavy articulated combination truck licence (Ibid, L25‑28). He said that as a leading hand he played an important role in the amalgamation of the workforces of the councils (T124, L8‑27).
2Speaking of more recent times, Mr Wilkinson said that his role with Baw Baw Shire Council was as “a maintenance officer putting up signs, and digging holes. It was hard heavy and repetitive work. For example, using heavy augers and digging into the ground with both my right and left hands”. Mr Wilkinson is right-handed (PCB 11, [7]). In a statement relative to a Workers’ Compensation claim made by Mr Wilkinson in 2004, Mr Wilkinson said:
“On or about 6.06.2003 I suddenly experienced back pain. I saw my GP who prescribed painkilling tablets. I do not remember taking more than 1‑2 days off work. I did not have regular back pain after that and was able to perform my full range of duties.
On 31.08.2004 I started work at my usual time and during the morning performed sign erection work in Bowen Street, Warragul. After moving the hole-boring machine off the truck and using it, I felt sudden pins and needles in both my legs and back pain. I told my co-worker about this Kerry Griffiths and later I was driven back to the depot. I attended the West Gippsland Hospital where x-rays were taken and told to see my GP. I ceased work and went home and rested.” (PCB 15)
3Following the incident in 2004, Mr Wilkinson attended his general practitioner, Dr James Brown, who carried on practice at Trafalgar Medical Centre in Trafalgar in Gippsland. Dr Brown furnished a report to Baw Baw Shire Council’s Human Resources and Development Officer by letter dated 2 February 2005, in which the doctor stated:
“Glen injured his lower back while digging post holes in the course of his employment 31 August 2004. He has since made an excellent recovery and indeed returned to limited duties nine days later and full duties by 5/10/04. Radiologically he has minor disc changes in his lower lumbar spine consistent with his age. Clinically his back is now quite functional.
…
I attended the work place 1/1/2005 and saw the equipment used in the course of Glen’s employment. I observed him and a fellow worker use a post hole digger which is a common task they are required to do.
Of all the work activities, only the use of the post hole digger was of any concern. This machine is very poorly designed with no clutch mechanism so that when the auger catches on an obstacle, the full force of the auger coming to a sudden standstill is transferred to the men operating the machine. Glen described being thrown off his feet at times. The potential for back injury to any worker operating this machine is exceedingly high and is compounded by the fact the force on the worker’s lower back is rotational and hence particularly hazardous.
All other duties I was shown seemed entirely appropriate with minimal risk for Glen particularly as he is assiduous in adhering to safe work place practices in lifting and transfer items of any weight.
The use of the auger is hazardous for any worker and should be immediately replaced with [a] machine that has at a minimum a clutch mechanism. This concern applies to all workers in the team and is not particular to Glen.” (PCB 21)
4Mr Wilkinson said that he “managed to improve and get back to work”. He said, however, he “continued to struggle with back pain”. He was on modified duties for a while, complaining that his back pain “increased as time progressed” (PCB 11, [10]).
5Mr Wilkinson’s 2004 compensation claim is at PCB 109. Mr Wilkinson made a further compensation claim dated 3 May 2017, referring to an injury to the “wrist RH” (PCB 110). Mr Wilkinson noted that this 2004 compensation claim was accepted, but he never really got over the injury which “progressed (and deteriorated)” (PCB 16, [4]). As to his wrist injury, he said in an affidavit:
“I have wrist pain in particular on the right side. I have decreased sensation in the right wrist but also the left. I also have problems with my right trigger finger as well as problems with the middle and ring fingers. I have difficulties using a drill. After 2017 I would feel increased pain when using the augur and borer. I have pins and needles in both wrists. I have problems using cutlery and gripping utensils as well as using my hands to open jars and like items. Sometimes I wake up from pins and needles in the right hand as well as the left. I avoid gardening. I avoid riding my motorcycle due to problems with gripping the handlebars.” (PCB 19, [29])
6Mr Wilkinson also complains of psychological issues, specifically depression (Ibid, [30]).
7On 10 September 2020, Mr Wilkinson’s employment with Baw Baw Shire Council was terminated (Defendant’s Court Book (“DCB”) 4, [4]). A Ms Laura Young, the council’s “Co-ordinator People & Culture” since 1 July 2020, made a lengthy affidavit describing the process that led to Mr Wilkinson’s termination, exhibiting extensive correspondence between him and the council. Mr Wilkinson resisted the process leading to his termination. The overall effect of his evidence was that he did not feel that he was fairly dealt with. He said in his supplementary affidavit that he “felt [he] was being targeted by [the Shire] as they wanted to terminate my employment once it was clear [to the Shire], that I likely had permanent physical difficulties with fulfilling my duties.” (PCB 17, [7]) Mr Wilkinson was taken at length in cross-examination by counsel for the defendant to Ms Young’s affidavit and the documents exhibited to it which form part of the termination process. He was unable to remember many aspects of these matters, though freely admitting that his difficulty lay in a lack of memory rather than with a positive ability to contradict the narrative given by Ms Young and the documents exhibited to her affidavit.
8On 15 June 2023, solicitors acting for Mr Wilkinson filed an Originating Motion commencing this proceeding. The Originating Motion sought the following relief:
“(a) A declaration that the Plaintiff has a “serious injury” within the meaning of Division 2 of Part 7 of the Workplace Injury Rehabilitation and Compensation Act 2013.
(b) An order that the Plaintiff have leave pursuant to Section 335 of the Workplace Injury Rehabilitation and Compensation Act 2013 to institute proceedings for damages in respect of injuries sustained by him throughout the course of his employment with Baw Baw Shire Council.
(c) Costs.” (PCB 6)
9This application came on for hearing before me on 13 February 2024. Mr Wilkinson’s “particulars of injury” dated 11 July 2023, referred to a large number of matters, specifically:
(a) Spinal Injury;
(b) Back Injury;
(c) Left and Right Wrists;
(d) Chronic Pain/Chronic Pain Syndrome;
(e) Consequential psychiatric injury.
10The particulars relied upon both paragraphs (a) and (c) of the definition of “serious injury” in the Accident Compensation Act 1985 and the Workplace Injury Rehabilitation and Compensation Act 2013; that is, on the paragraphs describing both physical and psychiatric injury. As to the latter, the matters relied on were:
(i)exacerbation of major depressive disorder with melancholia; and
(ii)development of Chronic Pain and/or Chronic Pain Syndrome.
11The matters referred to relative to physical injury referred to both the low back and the “left and right wrist” (PCB 8-9). As to the former, the following matters were relied on:
(i)L2/L3 mild central disc protrusion;
(ii)L3/L4 central disc protrusion indenting the theca;
(iii)L4/L5 loss of disc height with associated bilateral facet joint degeneration and central disc protrusion causing spinal canal stenosis;
(iv)L5/S1 disc space narrowing; facet joint degeneration; development of endplate osteophytes causing spinal canal stenosis and thecal indentation which abuts the exiting right nerve root;
(v)development of mechanical back pain;
(vi)soft tissue injury to the spine;
(vii)development of Chronic Pain and/or Chronic Pain Syndrome.
As to the two wrists, the following matters were relied on:
(i)injury to the right ulnar styloid process;
(ii)soft tissue injury to the right wrist;
(iii)soft tissue injury to the left wrist;
(iv) development of Chronic Pain and/or Chronic Pain Syndrome.
12At the outset of the hearing, Mr Hevey, who appeared with Ms A Tate on behalf of Mr Wilkinson, disclaimed reliance upon paragraph (c) of the definition of “serious injury” (T5, L15‑22) and therefore the allegation of a serious injury based on psychological matters.
Expert opinions
13Dr James Brown, Mr Wilkinson’s long-serving treating general practitioner, provided a series of reports on his treatment of Mr Wilkinson. The first was dated 2 February 2005. The doctor’s diagnosis of Mr Wilkinson’s injury in 2004 is quoted earlier in the background narrative (PCB 21). Dr Brown, in a letter dated 28 April 2022, addressed to a law firm acting for Mr Wilkinson at the time, reported that he “attended Glen today. He came requesting notes from his back injury in 2005…”. The doctor furnished certain notes but continued “I had not seen Glen since 2005 and have not made an assessment of his current back issue. I suspect that this needs to be done.” (PCB 24)
14The doctor provided a report by way of letter dated 1 February 2024 to Mr Wilkinson’s present solicitor and described a presentation following an injury at work “after picking up a heavy auger off the ground at work 31/8/2004”, diagnosing then “lumbar spine vertebral dysfunction” and observing that Mr Wilkinson “remained with residual propensity for back pain managed by limiting his scope of work”.
15The doctor reported seeing Mr Wilkinson again on 29 September 2022, at which time Mr Wilkinson “presented unable to work and unable to do many tasks of normal living because of chronic low back pain. He indicated that this had steadily progressed since his injury in 2004.” The doctor noted that Mr Wilkinson was “[v]ery awkward in his movements…[v]ery little range of movement of his lower back in any direction…[u]nable to do straight leg raise either side.” He said that Mr Wilkinson was “[n]ow significantly incapacitated”.
16He reported a further assessment on 9 March 2023 where he found that Mr Wilkinson “remained incapacitated and he was experiencing sustained dysphoria for which he was being treated with sertraline initiated by another doctor.” Dr Brown said he provided Mr Wilkinson with “non-steroidal anti-inflammatories [and] analgesia”. The doctor said he reviewed a psychiatric report “identifying adjustment disorder, anxiety and depression”. The doctor made the following diagnosis:
“ Glen suffers chronic debilitating back pain from extensive lumbar spine degenerative disease that historically dates back to an injury in the workplace in 2004. He suffers secondary dysphoria and adjustment disorder. His capacity to engage in normal living activities is severely restricted.”
He said he believed that Mr Wilkinson’s condition had been “significantly contributed to by his employment with Baw Baw [S]hire [C]ouncil.” He found Mr Wilkinson “permanently unemployable” and opined that he would “deteriorate further. He [was] unlikely to improve.” (PCB 26-27)
17Dr Mitchell Kraan, who carried on practice at the same clinic as Dr Brown (Trafalgar Medical Centre), despatched a request to Gippsland Physiotherapy by letter dated 15 March 2022 on his clinic’s letterhead, inviting the “Team” at Gippsland Physiotherapy to “participate in Glen’s care”. Dr Kraan described Mr Wilkinson’s “problems” as:
“09/08/2005 Lumbar back pain
05/02/2016 Diabetes Mellitus, Type 2
03/01/2019 Obstructive sleep apnoea
29/07/2009 cardiac ablation – now in sinus rhythm” (PCB 25).
18Dr Fatima Momtaz of Trafalgar Medical Centre issued a “Care Plan Request” dated 13 April 2017, referring to Mr Wilkinson’s diabetes, atrial fibrillation and osteoarthritis as chronic diseases from which he suffered and seeking urgent assistance for “Rt wrist pain” (PCB 28).
19Mr Wilkinson was sent by his solicitors for medico-legal assessment by Mr Ash Chehata, a shoulder, elbow and wrist surgeon, at his rooms at Cabrini Hospital. Mr Chehata took a history of an “incident” as follows:
“Mr Wilkinson describes having using heavy augers and digging into the ground forcibly with both his right and left hands and describes ongoing swelling in the right wrist as well as left, although the right hand being worse than the left.” (PCB 30)
It is unclear whether Mr Chehata is here referring to the “incident” complained of in 2004 or the one in 2017. Other histories of the 2004 incident related to a back injury with the 2017 incident related to injury to the wrist or wrists. Matters are further confused by Mr Chehata describing Mr Wilkinson being, as at December 2022, “30 years old” and born in April 1992.
20Mr Chehata referred to a CT scan carried out on 29 September 2022 which, he said, confirmed “severe multilevel degenerative change in the entire lower lumbar spine.” At examination he found Mr Wilkinson “weighed over 140 kg and 5 foot and 8 inches tall”. He noted Mr Wilkinson was “barely able to flex pass [sic scil past] 30 degrees, which may be related to potentially his body habitus.” Mr Chehata said Mr Wilkinson:
“… was able to heel raise and toe raise with no wasting of the calf musculature, but with swelling over the distal ankles. There was no radiculopathy or myelopathic features and the perfusion was normal. There was no asymmetry in his lower limbs. His sciatic nerve was intact bilaterally and his leg lengths were equal.”
Mr Chehata continued:
“Examination of both wrists confirmed an inability to flex pass [sic scil past] to 80 degrees and extend to 50 degrees. There was no crepitus or evidence of radiocarpal arthritis or mid-carpal changes. The radial, ulnar and median nerves were intact. He was able to make a full composite fist in both wrists.”
Mr Chehata observed:
“There was no imaging to support a tentative diagnosis and perhaps further imaging or any clinical evidence of injuries will need to be further investigated.”
(PCB 32)
21Mr Chehata diagnosed a “multilevel degenerative lumbar spondylosis with reactive pain in the right and left wrists with no specific diagnosis as yet, nor any specific imaging of the wrists to give a specific diagnosis.” (PCB 33)
22The solicitors also sent Mr Wilkinson for medico-legal assessment to Professor Richard Bittar, a “practising neurosurgeon”. The professor assessed Mr Wilkinson on 29 August 2023 and furnished a report by way of letter to the solicitors of that date. The professor commented that Mr Wilkinson “had a markedly elevated body mass index”. The professor found that Mr Wilkinson “had bilateral lumbar paravertebral tenderness and muscle spasm. He had moderate restriction of lumbar spine flexion with severe restriction of lumbar spine extension. Extension was much more powerful than flexion.” The professor found “[s]traight leg raising was normal bilaterally” and neurological examination of “his lower limbs did not reveal any evidence of radiculopathy or myelopathy”. Finally, the professor observed that there was no abnormal illness behaviour.
23The professor diagnosed “lower back pain secondary to aggravation of lumbar spondylosis” with the intravertebral discs and facet joints being “the most likely pain generators”. The professor said that Mr Wilkinson’s employment with the Shire had been “a significant contributing factor. Specifically, his heavy and repetitive workplace activities leading up to and in particular on August 31, 2004, have been significant contributing factors, and in my opinion, his frequent heavy and repetitive workplace activities undertaken from August 31, 2004 until his termination in 2020, have also been significant contributing factors”. As to prognosis, the professor said Mr Wilkinson was quite likely to continue to experience significant pain and disability into the foreseeable future (PCB 37).
24A further medico-legal assessment at the request of Mr Wilkinson’s solicitors was carried out by orthopaedic surgeon, Dr Kemble Wang. Dr Wang observed “Mr Wilkinson was somewhat a poor historian”. As if to underline this point, (albeit unintentionally) he recorded Mr Wilkinson’s termination of employment (presumably based on what Mr Wilkinson told him as at “2021”). The doctor took a history of an incident in 2017 when Mr Wilkinson:
“… was using a crowbar repetitively at the time to break the hard dirt while digging for a bus shelter. During one strike of the crowbar, it hit something hard on the ground and the reverberation was felt in both hands. He felt sudden numbness and tingling in all his fingers and wrists, with severe pain particularly in the right wrist. He felt sudden loss of strength and had to drop the crowbar.” (PCB 41)
25Dr Wang said Mr Wilkinson told him that “[s]ince then [vis 2017], he had persisted with work but had ongoing pain. He had difficulty when using a drill. He had further aggravations when using the auger and the borer. He had pins and needles.” (Ibid) Mr Wilkinson told Dr Wang that “he [viz Mr Wilkinson] was singled out at work.” Dr Wang concluded:
“I believe Mr Wilkinson currently suffers from bilateral carpal tunnel syndrome. He also has signs and symptoms of trigger fingers in the right hand, particularly with regard to the right middle and ring fingers. In my opinion, he had not yet had adequate work up nor treatment for these to date.” (Ibid)
26At examination, Dr Wang noted restrictions in range of motion in the shoulders. He said that Mr Wilkinson “had difficulty getting in and out of a chair”. The doctor also found “some limitations of elbow range of motion”. As to wrists and hands, Dr Wang said:
“… he had extension to 45 deg bilaterally, and flexion to 70 deg bilaterally. He is able to make a composite fist although this is difficult and takes a few seconds to do. He gains full extension today of his fingers but is also only able to do this slowly. He has episodic triggering of his middle finger. He has palpable flexor tendon nodules near A1 pulley, particularly for the right middle finger. He is positive for ulna grind test on the right.” (PCB 42)
The doctor suggested Mr Wilkinson consult a hand/wrist surgeon for treatment of carpel tunnel and trigger finger (PCB 43).
27Mr Wilkinson was also sent by his solicitors for medico-legal assessment to specialist occupational physician, Dr Joseph Slesenger, who carried out his assessment on 6 December 2023, furnishing a report by way of letter to the solicitors dated 12 December 2023. The doctor took a history of both the 2004 and 2017 incidents (PCB 47). He noted Mr Wilkinson complained of:
“… tingling and numbness in both hands together with weakness in both hands. He has difficulty gripping, twisting and turning and difficulty forcefully pushing and pulling. He also has difficulty with torque movements. He advised of bilateral hand stiffness.” (PCB 48)
28Dr Slesenger also noted Mr Wilkinson suffering “residual lower back pain that is severe, constant and centred in the lower back with radiating pain into both legs, the right being equal to the left.” According to the doctor, Mr Wilkinson “can walk, stand and sit for about an hour. He has difficulty lifting more than 5 kg and paces all his activities.” (PCB 48) Dr Slesenger describes Mr Wilkinson’s sleep as “poor”. Mr Wilkinson apparently told him that “[h]e wakes regularly during the night and occasionally will wake around 1‑2 am” and remained “fatigued during the day”. (PCB 50) Dr Slesenger reported Mr Wilkinson as weighing 140.1 kilograms and standing 177 centimetres (PCB 51). Dr Slesenger referred to an x-ray of Mr Wilkinson’s right wrist on 2 May 2017 which found the “radiocarpal intercarpal joints are normal. OA is not seen”, and a CT scan of Mr Wilkinson’s lumbosacral spine of 30 September 2022 found “[m]ultilevel disc degeneration worst at the level of L5/S1” (PCB 55). As to the low back condition suffered by Mr Wilkinson, Dr Slesenger said:
“…I do not anticipate a significant alteration in Mr Wilkinson’s presentation in the foreseeable future. There are a number of negative prognostic indicators, including:
· The degenerative nature of the underlying condition.
· His current job detachment.
· His psychological comorbidity.
· His body mass index.” (PCB 57)
29A further medico-legal assessment of Mr Wilkinson was conducted by Dr Noam Winter, a specialist pain medicine physician and anaesthetist, on 1 November 2023. The doctor provided a report by way of letter to the solicitors dated 29 January 2024. The doctor took a history of “aching pain in his bilateral wrists, right more than left”, and “pain in [Mr Wilkinson’s] lumbar region without radiculopathy”, described as “both sharp and aching”. The doctor said Mr Wilkinson found the “back pain is worse than his wrists.” The doctor said Mr Wilkinson “described his mood as being low at times. He described symptoms of poor concentration, low motivation, pessimism about the future, and loss of libido. He has passive suicidality but denies active suicidality. He has been diagnosed with major depressive disorder with melancholia, and has been trialled on a number of antidepressants.” (PCB 62) The doctor diagnosed:
“a Nociplastic lumbar back pain likely secondary to an initial discogenic injury, with potential pain emanating from his facet joints; and
bNon-specific wrist pain, right worse than left, likely due to overuse injury.” (PCB 65)
30In a supplementary report dated 9 February 2024, Dr Winter told the solicitors that “Mr Wilkinson’s nociplastic back pain is organically based and appears to stem from the original work injury in August 2004, and continued to get worse in the course of his employment.” The doctor explained:
“Nociplastic pain is an abnormal pain processing response to an initial inciting injury. It is characterised by altered pain processing and an expansion in the area of pain outside of the initial pain injury.
In Mr Wilkinson’s case, he likely had a soft tissue injury (likely disc injury) in August 2004, and then had ongoing pain once he returned to work.
Over the following months, the initial disc injury would likely have healed, but Mr Wilkinson complained of ongoing pain in his lumbar spine in an expanded area. This, in turn, would have led to altered lumbar muscle patterns and, over time, may make him pre-disposed to increased pain in normal age-related degenerative changes such as lumbar spondylosis.” (PCB 93)
31In 2019, Dr Robert McCartney, occupational physician, was requested to provide an opinion with regard to Mr Wilkinson’s fitness safely and sustainably to undertake his duties as “urban operations officer” with the Shire. Dr McCartney took histories of bilateral foot pain, multiple sprains and ligament problems with Mr Wilkinson’s ankles, occasionally aching knees which, according to Mr Wilkinson, didn’t “run straight”, lumbar back and wrist problems. As to the low back, Dr McCartney reported “[h]e stated that since that time [viz 2004] he has had ongoing intermittent episodes of low back pain and will occasionally need to take days off due to the pain.” As to the wrist or wrists, he records Mr Wilkinson telling him that “the soft tissue injury settled with treatment.” The wrist injury, however, is reported as dating from 2014 rather than 2017 (DCB 113). Dr McCartney’s opinion was:
“Mr Wilkinson has the following significant musculoskeletal problems:
1. Morbid obesity
2.Progressive bilateral pes planus and valgus hindfoot / forefoot abduction
3.Chronic lumbar back pain with loss of motion
His musculoskeletal conditions are very likely to impact on his ability to safely carry out all of the essential inherent requirements of his role.” (DCB 114)
The doctor suggested “a formal job-specific functional capacity evaluation to be carried out by appropriately trained and experienced occupational therapist or physiotherapist”. In the meantime, he suggested restrictions:
·no work that requires deep squatting
·no ladder climbing or excessive stair climbing
·no heavy manual work (no pushing, pulling or lifting greater than 15kg)
·avoid prolonged walking
·no walking over unstable ground (DCB 114-5).
32The functional capacity evaluation recommended by Dr McCartney was conducted by physiotherapist Mr Mark Alcock on 22 January 2020. As to the various musculoskeletal conditions of the foot or leg referred to by Dr McCartney, Mr Alcock stated that the problems with Mr Wilkinson’s feet were “currently effectively managed with orthotics”. As to Mr Wilkinson’s ankles, Mr Alcock observed “[t]he extent of the ligament damage was unable to be confirmed with no access to any imaging.” Mr Alcock noted that Mr Wilkinson relative to his knees had said “I am unable to comment on whether [the knee problem] is degenerative in nature or something congenital.” As to the lumbar spine, Mr Wilkinson told him he had approximately one month off work “and has had intermittent episodes of back pain with varying severity since, but nothing close to what he experienced in 2004.” As to the wrist, he said that Mr Wilkinson had four days off work “and treatment with anti-inflammatories prescribed from the GP [and] he has had no further issues.” (DCB 117)
33Mr Alcock observed “Mr Wilkinson is considered obese due to his BMI of 46”. He said “Mr Wilkinson’s grip strength was above normal for his age in both his dominant right hand and left and he demonstrated normal wrist range of motion, confirming the successful healing of any previous sprain”. He said “it was apparent that Mr Wilkinson has moderately reduced lumbar, hip, and knee range of motion.” They were non-painful and reported as merely being “stiff”. He said Mr Wilkinson “demonstrated an adequate lifting ability at what is required according to his task analysis. He could lift 25kg with obvious effort as well as lifting the same 25kg from floor to waist, shoulder, and overhead respectively.” (DCB 118) Mr Alcock said “Mr Wilkinson’s inability to squat can be problematic in a job of this nature. I do however believe that Mr Wilkinson has been able to work around this effectively without causing too much pressure on other areas due to the kneeling adjustments he has made with the padded tradesmen cushion. He has reported he has never been able to squat deeply or in a sustained fashion while working for the Shire. He can also step up and down on a 30cm step slowly but safely.” (DCB 119)
34The effect was to enable the work restrictions imposed on the advice of Dr McCartney to be lifted.
35As previously noted, Mr Hevey and Ms Tate did not persist with the contention that there should be a finding of serious injury based on paragraph (c) of the definition (psychological or psychiatric). Nevertheless, the defendant tendered a number of psychiatric reports.
36At the request of the WorkCover insurer, Mr Wilkinson underwent an assessment by psychiatrist Dr Chris Grant by videolink on 4 December 2020. The doctor diagnosed Mr Wilkinson as suffering from “a major depressive disorder, moderately severe, with specific features of melancholia.” The doctor said “[Mr Wilkinson’s] difficulties at work relate to the ongoing progress of his untreated depression, but the termination of employment has caused a mild exacerbation in that pre-existing constitutional problem.” (DCB 126)
37Dr Bruce Low, orthopaedic surgeon, conducted a medico-legal assessment of Mr Wilkinson remotely by what was described as “NEXUS Telehealth Assessment” on 8 November 2022. According to Dr Low:
“Stiffness and pain in both wrists, occasional pins and needles in his fingers but no gross swelling or colour change. Pins and needles are not a big feature. Numbness is not a big feature. There is no elbow pain. The shoulders are stiff. He gets pain in his shoulders if he tries to work above shoulder height. His neck is stiff but there is no neck pain. The pain is in the dorsum mainly of the wrist and goes up the dorsal forearm into the mid-forearm. It came on at work on 10 September 2020 using a crowbar.
His right wrist swelled up and got sore first then followed by his left wrist. His right is his power arm, and his left was the guiding arm.” (DCB 129)
38The doctor had no x‑rays or other imaging available to him. He suggested that nerve studies be carried out “to rule out carpal tunnel”. He also suggested x‑rays of the elbows and shoulders (DCB 129). Dr Low measured Mr Wilkinson as weighing 135 kilograms and being 173 centimetres tall. He said “[h]is neck was stiff with reduced movements in all directions; lateral flexion, flexion and extension, and rotation are all reduced. He had a bull neck.” (DCB 130)
39As to the condition of Mr Wilkinson’s wrists, the doctor said “I do not know what the diagnosis is here. It would sound most likely that he has arthritic wrists with workplace aggravation from using the crowbar, would be my likely diagnosis...If it is arthritic wrists it is most likely constitutional and it has been aggravated by using the crowbar.” (DCB 131) Dr Low observed “[t]here is quite significant stiffness in his wrists with some stiffness of pronation and supination. Both shoulders are stiff.” (DCB 132) The doctor said Mr Wilkinson’s “prognosis is poor” (DCB 133).
40A further medico-legal assessment was conducted on 10 November 2022 at the request of the WorkCover insurer by Associate Professor Shashjit Varma, a consultant psychiatrist. This assessment once again was by “NEXUS telehealth”. The doctor said of Mr Wilkinson “[h]is affect and mood was flat. He had low self-esteem and self-confidence and had ideas of hopelessness and worthlessness.” (CB 137) The doctor took a history of a further injury to Mr Wilkinson on 6 September 2020 “while using a shovel”. The history provided to the doctor appears to implicate this injury with Mr Wilkinson’s cessation of work on 10 September 2020 (DCB 138).
41In accordance with the Diagnostic and Statistical Manual of Mental Disorders (5th edition), the Associate Professor found “Mr Wilkinson suffers from adjustment disorder with mild anxiety and depression, secondary to bilateral wrist pain.” (DCB 138)
42At the request of the WorkCover insurer’s solicitors, Associate Professor Varma carried out a further assessment of Mr Wilkinson on 5 January 2024. According to Associate Professor Varma, Mr Wilkinson told him “he believes his [Mr Wilkinson’s] working career is over and he feels hopeless about the future. He keeps worrying about his pain getting worse.” (DCB 145) According to the Associate Professor:
“Today, he also told me that he has had depression for almost all his life, for at least 15 years and has been on sertraline due to a lot of life events and losses. His job termination had a big impact on him.” (DCB 146)
43According to the Associate Professor:
“The worker’s psychiatric condition is caused by constitutional and/or endogenous problem [sic] prior to working with Baw Baw Shire Council.” (DCB 147)
44The WorkCover insurer’s solicitors had Mr Wilkinson attend a medico-legal assessment by Dr Francis Ghan, orthopaedic surgeon, on 15 January 2024. According to senior counsel for the Authority, this is the report upon which it places primary reliance (T14, L26-30). Dr Ghan found Mr Wilkinson to be 5 foot 8 inches, or 173 centimetres, and weighing 138 kilograms. He described Mr Wilkinson as “significantly obese with a pendulous abdomen”. As to the lumbar spine, he observed “there was no evidence of radiculopathy” (DCB 152).
45The doctor referred to some three musculoskeletal issues: (1), chronic bilateral ankle and foot pain; (2), back pain; and (3), bilateral wrist pain. As to the wrists, Dr Ghan observed:
“With regard to the wrist he has mild degenerative condition of both wrists. I am not terribly convinced about carpal tunnel syndrome. He may well have mild triggering of the right fingers.” (DCB 153)
46As to the low back, Dr Ghan said “he has lumbar spine spondylosis but he does not have sciatica or discogenic mechanic issues.” He said as to the wrists, “symptoms are mild and do not need any intervention”. The doctor said “[o]besity ...is a crucial element in causation of ongoing lumbar backache, bilateral non specific ankle and feet aches and pains.” (Ibid) According to Dr Ghan:
“The episode of back pain in 2004 in my opinion was a back strain which has resolved. His ongoing back pain currently in my opinion is due to a degree of lumbar spine spondylosis and obesity.
Right wrist pain in my opinion is probably mild degenerative change of the carpus. His bilateral foot aches and pains is mostly due to overloading from his body habitus.” (DCB 154)
47The doctor said “[t]he prognosis of all injuries is degenerative in nature.” As to the right wrist, the doctor said:
“I do not have the opinion he has any significant carpal tunnel compression syndrome. I do not have the opinion that any of the injuries are significantly contributed [to] his employment.
…
From a physical perspective he does not have capacity for pre-injury duties.” (DCB 154)
48By letter dated 17 October 2018 on the letterhead of “Trafalgar Medical”, Dr Mitchell Kraan noted a consultation with Mr Wilkinson “regarding an increase in his daytime sleepiness, in relation to his longstanding obstructive sleep apnoea.” The doctor noted surgery for the condition, but he said Mr Wilkinson “is now getting some relapse of his symptoms, including recently nodding off during a course at work.” The doctor suggested it may be necessary for Mr Wilkinson to obtain a CPAP machine for overnight wear. In the meantime, he said Mr Wilkinson was safe to continue work, but should “avoid driving heavy vehicles if he feels fatigued” (DCB 159).
49By letter dated 10 May 2021, a claims consultant for MLC Life Insurance sought information from Dr Michael Kunze of the general practice clinic “Trafalgar Medical”. The consultant asked:
“With further ongoing treatment, please explain why Mr Wilkinson’s mental health would permanently preclude him from returning to work away from the environment of his previous trigger/employer.”
Dr Kunze responded:
“At my last contact with Mr Wilkinson on 8/2/21 his long term prognosis was unclear. I recommend seeking further advice from his current treating practitioner.” (DCB 161)
50Mr Wilkinson’s solicitors obtained an expert report as to Mr Wilkinson’s “capacity for work and suitable employment prospects, taking into account the injury he sustained during the course of performing his employment...”. This was provided by Ms Belinda Iatrou. Ms Iatrou noted that she had been provided with “various medical reports”. Her report, however, she said, was “based on my knowledge and research of the open labour market and information received from Glen during our 1½ hour telephone interview on 8 January 2024 and 15 minute follow up call on 15 January 2024.” Her report was dated 16 January 2024. She said the interview was done by telephone “due to Glen’s regional location and lack of computer skills for a video conference” (PCB 97). Ms Iatrou said that Mr Wilkinson attributed the following matters as “following as a result of his lower back injury”:
“· Lower Back: chronic pain and restricted movement, worse on the right side.
· Legs/ankles: experiencing sharp pain that travels down through his legs and ankles, nerve damage, difficulties walking.
· Shoulder/neck: “constant cracks and crunches when using my neck to turn”, occasional headaches.
· Depression/low emotional state: diagnosed with ‘Chronic adjustment disorder with depressive features’ and taking anti-depressant medication. Previous suicidal thoughts “I have had thoughts in the past as to what it would be like to just go away and not be here on this earth anymore”. Mood swings and low motivation levels, “I cry all the time”.
· Memory loss and lack of concentration: “I forget things all the bloody time, I use to be so sharp with remembering information. I find it difficult to concentrate and I am easily distracted”.
· Social withdrawal: “This has really had an impact on my personal relationships. I am fortunate to live with my ex-partner, but this has been hard on her. I would rather not go out and speak to people”.
· Fatigue: “tired all the bloody time” through interrupted sleep, wakes during the night due to pain.” (PCB 99)
She said he described the following restrictions:
“· Walking: very limited and at a slow pace “I would say a maximum of 10 minutes before I need to rest and the pain really kicks in”.
· Standing: limited to approximately 30 minutes before feet start to hurt, then needs to sit down and rest.
· Sitting: limited to approximately 30 minutes, elevates legs and prefers to sit in a reclining seat for comfort levels.
· Kneeling/Squatting: Does not attempt due to heightened pain levels from attempting to do these types of activities in the past.
· Bending/Twisting/Pushing/Pulling/Overhead Reaching/Lifting: Avoids all of these activities and has difficulty lifting more than 5 kg’s.” (Ibid)
51Ms Iatrou also took a history of pain and swelling in the wrists, quoting Mr Wilkinson as saying:
“I am unable to grip things. My Doctor has told me that he thinks I have carpal tunnel syndrome and that I need an operation, but I don’t really want to have one.” (PCB 99-100)
52Ms Iatrou referred to the opinions of the plaintiff’s medico-legal experts Dr Joseph Slesenger and Professor Richard Bittar (PCB 100-1). She recorded Mr Wilkinson as having “resigned” from his employment with the Shire (PCB 104). She quoted Mr Wilkinson as saying:
“I just put up with the pain, I needed to work, to make a living to support my young family and provide for them. It just got to me in the end, my long term work partner died of a heart attack and the younger, newer blokes just weren’t as supportive in helping me out. I had really had enough and just could not physically and mentally do it anymore”. (PCB 103)
53Ms Iatrou concluded:
“…as a recruiter, when taking the information as presented to me, since sustaining his lower back injury I am unable to confidently identify any vocations or employment roles that Glen would be suitable for that he would be able to currently perform consistently and reliably now or into the foreseeable future.” (PCB 106)
Legal considerations
54In so far as Mr Wilkinson’s case is mounted by reference to his low back injury in 2004 or his course of employment until 2014, the ability to bring a common law damages claim on the basis of finding of serious injury continues to be governed by the Accident Compensation Act 1985, which has been repealed for current purposes by the Workplace Injury Rehabilitation and Compensation Act 2013.
55Section 134AB of the Accident Compensation Act precludes a worker suffering injury in the course of employment in obtaining damages with respect to that injury, except in accordance with the provisions of the section. The section authorises the recovery of such damages “if the injury is a serious injury and arose on or after 20 October 1999 but before 1 July 2014” (Sub-section 2).
56“Serious injury” is defined in sub-section (37) as follows:
“(a) permanent serious impairment or loss of a body function; or
(b) permanent serious disfigurement; or
(c) permanent severe mental or permanent severe behavioural disturbance or disorder; or
(d) loss of a foetus.”
57Sub-section (38) of the Act includes important additional provisions as to the operation of these principles. Paragraph (b) of sub-s(38) provides:
“(b) the terms serious and severe are to be satisfied by reference to the consequences to the worker of any impairment or loss of a body function, disfigurement, or mental or behavioural disturbance or disorder, as the case may be, with respect to—
(i)pain and suffering; or
(ii)loss of earning capacity—
when judged by comparison with other cases in the range of possible impairments or losses of a body function, disfigurements, or mental or behavioural disturbances or disorders, respectively;”
58Paragraph (c) of sub-s(38) provides:
“(c) an impairment or loss of a body function or a disfigurement shall not be held to be serious for the purposes of subsection (16) unless the pain and suffering consequence or the loss of earning capacity consequence is, when judged by comparison with other cases in the range of possible impairments or losses of a body function, or disfigurements, as the case may be, fairly described as being more than significant or marked, and as being at least very considerable”.
59Mr Wilkinson seeks leave to bring a damages claim not only for pain and suffering but also loss of earning capacity. By virtue of s134AB(38)(e)(i), leave to bring such proceedings “the worker has a loss of earning capacity of 40 per centum or more”.
60In determining loss of earning capacity, paragraph (f) of s134AB(38) requires a comparison between the gross income which the worker is either earning or capable of earning in suitable employment at the relevant time, “whichever is the greater”, with the gross income which the worker is earning or capable of earning from personal exertion “during that part of the period within 3 years before and 3 years after the injury as most fairly reflects the worker’s earning capacity had the injury not occurred”.
61The phrase “suitable employment” is defined in s3 of the Workplace Injury Rehabilitation and Compensation Act 2013 in the following terms:
“suitable employment, in relation to a worker, means 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 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;
and, for the purposes of Part 4, includes—
(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”.
62By s5(2) of the Accident Compensation Act, that definition applies to proceedings relative to that statute.
Conclusions
Wrists
63In selecting material to tender, Mr Hevey and Ms Tate on behalf of Mr Wilkinson were equivocal as to the reliance they placed on the one wrist or the other wrist as constituting a serious injury for the purposes of their client’s application. Mr Hevey said, “I will tender the wrist in this as a holding matter, the wrist is pleaded...”. I asked if this meant that reliance on the wrist was abandoned. Mr Hevey replied, “[i]t’s not abandoned as yet ...” (T131, L21-22, L25). In closing submissions made some days later, Mr Hevey and Ms Tate stated they did not abandon reliance on the wrists, but ultimately seemed to place little reliance upon them. They summarised Mr Wilkinson’s intentions as to wrist pain as follows:
“The Plaintiff deposes that he experiences wrist pain, in particular on the right side. He experiences decreased sensation in the right wrist but also the left. He has problems with his right trigger finger as well as problems with the middle and ring fingers. This interferes with his ability to use a drill. (PCB 19)
The Plaintiff deposes that after 2017, he would feel increased pain when using the auger and borer. (PCB 19)
The Plaintiff experiences pins and needles in both wrists and he has difficulties using cutlery and gripping utensils as well as using his hands to open jars and the like items. Sometimes, he wakes with pins and needles in his right hand as well as his left. (PCB 19)
The Plaintiff avoids gardening, riding his motorcycle due to problems with gripping the handlebars. (PCB 19)” (Outline of Plaintiff’s Submissions, [51]-[54])
64Mr Moulds KC and Mr Haddad on behalf of the Authority said little in their closing submissions as to the wrists, apparently anticipating their being abandoned for the purposes of this application. The only radiological examination of the wrists is a CT scan of the right wrist on 2 May 2017. The terms of the radiologist’s report are quoted at [28] above. No specific findings have been made.
65Whilst various doctors have taken histories of aching and swelling in the wrists or the right wrist, nothing very specific beyond that has been recorded. There are references to carpal tunnel syndrome, but this has never been confirmed. In 2019 Dr McCartney took a history that a soft tissue injury of the wrist or wrists settled with treatment (see [31] above). Whilst there have been suggestions of nerve studies to establish or exclude carpal tunnel syndrome, none seem to have been undertaken. Physiotherapist Mr Alcock in 2019 recorded that Mr Wilkinson’s grip strength was above normal for his age in both wrists, and a full range of wrist movement was demonstrated to him (see [33] above). A suggestion made by medico-legal examiner Dr Wang that Mr Wilkinson consult a hand/wrist surgeon for treatment of carpal tunnel syndrome and trigger finger (see [26] above) seems not to have been taken up. As to the wrist symptoms, Dr Wang complained that Mr Wilkinson “had not yet had adequate work up nor treatment for these to date” (see [25] above).
66Mr Chehata, in his report from December 2022, referred to “pain in the right and left wrists with no specific diagnosis as yet, nor any specific imaging of the wrists to give a specific diagnosis” (see [21] above). According to the history taken by Dr Noam Winter in 2023, Mr Wilkinson’s back pain was worse then his wrist pain (see [29] above). In a series of certificates of capacity certifying for the purposes of the WorkCover Authority that Mr Wilkinson had no capacity for work, issued beginning on 9 September 2020 around the time of Mr Wilkinson’s termination from employment by the Shire, the only disorder certified by Dr Kunze of Mr Wilkinson’s GP clinic was “adjustment disorder with depressed mood”. Further certificates of capacity given by the doctor on a monthly basis until December 2020 likewise refer only to adjustment disorder with depressed mood (DCB 559-568).
67Medical certificates issued for the purposes of the “Centrelink regime” administered by the Commonwealth Department of Human Services commencing 19 April 2021 refer to “[a]cute exacerbation of background major depressive disorder” (DCB 569-573). Reference to severe low back pain appears only from 14 February 2022 (DCB 575). There is no reference to any wrist injury.
68The effect then is that there is no very satisfactory evidence as to the existence or precise nature of the injury to the wrist or wrists. There seems to be more evidence as to the right wrist than the left. Were one to accept the finding made by Mr Alcock in 2019 of a better than average grip strength, any serious injury of either wrist would have to be excluded. There are no very significant consequences attributed to the actual or alleged injury. Given that the burden of establishing the existence of the injury and its status as “serious” in accordance with the statutory test lies upon the plaintiff, it has not been discharged. I reject the contention that Mr Wilkinson has suffered a serious injury of either wrist.
Low back
69The contention of a low back injury going back to 2004 was, as Mr Moulds KC correctly observed, the “mainstay” of the plaintiff’s case.
70There are two striking and related considerations which might militate against regarding Mr Wilkinson’s low back condition as a “serious injury”. First, whilst the injury occurred in 2004, Mr Wilkinson continued, after a relatively brief period of treatment and recuperation, discharging his full duties for the Shire until he was terminated from that position in September 2020. His attitude at the time of termination, based on the narrative provided by Ms Young and the documents which she exhibited, was that he remained ready, willing, and able to continue performing his duties. He did not, as some of the histories quoted or some of the narratives implied, resign because he was physically unable to continue. The second striking feature, which derives from the first, is that the application for a finding of serious injury comes fully 18 years after the event.
71Mr Moulds KC and Mr Haddad stressed that as recently as 2019 Mr Wilkinson had been assessed by Dr McCartney and physiotherapist Mr Mark Alcock as fit to continue discharging his duties for the Shire without limitations. They noted that the reports to the Shire by these two gentlemen were not provided to the medico-legal experts who provided opinions on behalf of Mr Wilkinson. They operated for the most part upon an uncertain history as to how Mr Wilkinson’s employment terminated. Ms Iatrou, as noted above, took a history that he had “resigned” from his position with the Shire. Messrs Moulds KC and Haddad therefore said that since the plaintiff’s expert witnesses expressed their views on Mr Wilkinson’s condition on a false premise, those opinions should be discounted. They said that the opinion of Dr Ghan, who had the fuller history, should be adopted: namely, that Mr Wilkinson had strained his back in 2004 and that this injury had “settled”, and the pain and restrictions in his lower back suffered in the intervening years until 2020 constituted no more than a natural progression of spinal degeneration.
72Mr Moulds KC and Mr Haddad conceded the opinion of Ms Iatrou that Mr Wilkinson should now be regarded as in effect unemployable. This would represent a total loss of earning capacity for the purposes of the relevant statutes, but compensable only if this loss were caused or materially contributed to by the low back injury. I have already explained why the injury to the wrist or wrists ought not be regarded as a “serious injury”, and it may be put to one side.
73As the authorities and the statutory formulations show, the question of serious injury or no turns crucially on the consequences of the injury. Mr Wilkinson’s second affidavit, affirmed in February 2024, stated:
“I have daily back pain. Some days the pain is worse than other days. It fluctuates in intensity. It is always there. I have reduced movement of the spine. I have difficulties with movements that place increase pressure on my spine including heavier lifting pushing and pulling. Prolonged standing or sitting increases my back pain. So does repetitive twisting and bending.” (PCB 18)
74He said that he uses Panadeine Forte regularly as well as Panadol and Panadol Osteo. On this subject, he concluded:
“My back pain interferes every night with my sleep.” (Ibid)
75His earlier affidavit, affirmed a year earlier, and therefore approximately 2½ years after the termination of his employment, stated:
“I certainly cannot return to my pre-injury duties and I have a limited vocational and educational background such that realistically I worry that I will not be able to return to any suitable employment.” (PCB 11)
He continued:
“I used to enjoy gardening but this is reduced due to back and wrist pain, and I also have difficulties with sleep due to back pain and wrist pain. I avoid riding my motor bike now and avoid 4-wheel driving and hunting.” (Ibid)
76Mr Moulds KC and Mr Haddad stressed that, as Dr Ghan observed, as noted by all examiners, Mr Wilkinson is obese, or, as it is sometimes put, has a high body mass index. This places stresses on the back and other parts of the body. Mr Wilkinson has a long history of sleep apnoea, which has persisted despite surgery quite a few years ago. This factor must provide a major explanation for the sleep disturbance suffered by Mr Wilkinson. Again, as Mr Wilkinson conceded in cross-examination, and as is testified by the clinical notes and history, he has been troubled for years by pain and restrictions in his ankles and feet. Further, he has suffered long-term depression. Messrs Moulds KC and Haddad therefore contended that Mr Wilkinson’s case had failed to disentangle the consequences of the putative serious injury, viz the low back, from these other factors in his life. They referred to Bezzina v Phi& Anor [2012] VSCA 161 [23].
77Mr Hevey and Ms Tate, however, said it would be wrong to regard Mr Wilkinson’s low back condition as something which flared up in 2004, settled, and remained largely unproblematic until his termination in 2020 as Dr Ghan and the defendant’s case would have it. They surveyed the clinical notes from Mr Wilkinson’s general practice clinic at Trafalgar for the period 2004 to 2020; at paragraph 13 of their closing submissions identifying some twenty matters which they said gave the lie to the interpretation of events adopted by Dr Ghan and the defendant. There followed a further thirty attendances after September 2020 which they said were of similar purport.
78In so far as Mr Wilkinson’s claim relies on the injury in 2017 to his wrists or a back injury during the course of his employment from 2014 onwards, his ability to bring a common law claim based on a finding of serious injury is based on the Workplace Injury Rehabilitation and Compensation Act 2013, the terms of which in these matters do not materially differ from the provisions of the 1985 Act already summarised. The restriction of the ability of a worker to bring a claim for damages relative to serious injuries is to found in s327 of that Act. The phrase “serious injury” is defined in s325, which includes elaborations upon the concept of what might be regarded as “serious”, in particular as to loss of earning capacity, requiring such loss to be 60 per cent or more.
79The overall picture presented by Mr Wilkinson’s work difficulty, pain, and limitations is complex indeed. Mr Hevey and Ms Tate were very critical of Mr Wilkinson’s treatment by the Shire. They conceded, however, that jurisdiction to deal with such grievances lay with Fair Work Australia and not with this court (T167, L30 — T168, L2).
80One may speculate that Mr Wilkinson’s low back pain has been magnified in its perception by his diagnosed depression. This is not, however, a hypothesis that is explored in the medical opinions, and I put it to one side as speculation. The history of attendances for low back pain extracted from the clinical notes at the Trafalgar clinic by Mr Hevey and Ms Tate make good the proposition, albeit by the narrowest of margins, that the pain and suffering consequences of the low back injury may “fairly [be] described as being more than significant or marked, and as being...very considerable” (Accident Compensation Act 1985, s134AB(38)(c)).
81Messrs Moulds KC and Haddad correctly observed that the medical evidence did not indicate that Mr Wilkinson’s obesity was the result of inactivity caused, for instance, by the back injury. They suggested implicitly that obesity should be treated as a separate cause of pain, restrictions, and disability for Mr Wilkinson. His obesity appears to be constitutional. In my view, a more appropriate way of dealing with it is to regard it as the equivalent of an eggshell skull or eggshell psyche, rendering him more vulnerable to the consequences of musculoskeletal, and in particular spinal, injuries.
82Leave to bring common law proceedings for pain and suffering should be granted.
83It is common ground that Mr Wilkinson now finds himself unemployable. With some hesitation, I accept the view that the progress of his low back injury materially contributes to his situation in that regard, and accordingly leave to bring a damages proceedings should be granted; likewise with respect to loss of earning capacity.
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