Ananiadis v Victorian WorkCover Authority [2025] VCC 1724

1. The defendant does not dispute the existence of an injury to the plaintiff's lower spine caused in the course of the plaintiff's employment, but the parties are in dispute about whether any impairment consequences flowing from the injury to the plaintiff's lumbar spine are sufficient to satisfy the narrative test for pain and suffering and loss of capacity. The parties also contest whether the plaintiff's post injury earning capacity is no greater than 60 percent of his pre-injury earning capacity.[4] The defendant also raises issues with the plaintiff's reliability, arguing that alleged inconsistencies in his evidence about sleep, computer proficiency, and recreational activities such as jet skiing taken together with evidence of the plaintiff's retained work capacity and life enjoyment, indicate that the consequences of the injury are not sufficiently serious to meet the threshold.[5] The plaintiff contests any attack on his credit or reliability, contending that any inconsistencies are minor or were well-explained by the plaintiff and that in critical aspects, the plaintiff's evidence was not challenged.[6]
2. The parties agreed that the plaintiff's pre-injury earning capacity was $40,509 gross per annum, which equates to $779 per week. Sixty percent of this figure is $467 per week or $24,305 per annum.[7]

1. For the plaintiff to succeed in this application, he must satisfy the Court, on the balance of probabilities, that he has sustained a "serious injury", relevantly within the meaning of the definition of "serious injury" in s 325(1) of the Act, which provides that a serious injury means -

(a) permanent serious impairment or loss of a body function; or

1. Assessing whether the injury claimed is a "serious injury" is undertaken at the time the application is heard. Here the plaintiff says the lumbar spine injury the subject of the application is a serious injury because it is a permanent serious impairment or loss of a body function and so the term "serious" is satisfied by reference to the consequences to the plaintiff of any impairment or loss of body function with respect to pain and suffering or loss of earning capacity, when judged by comparison with other cases in the range of possible impairments or losses of body function.[8]
2. Any impairment or loss of a body function or a disfigurement will not be serious for the purposes of s 335(2) of the Act unless the pain and suffering or 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.[9]
3. Whether an injury is a "serious injury" within the meaning of s 325(1) of the Act is assessed by applying the "narrative test".[10] This involves a two-stage process. The first requires assessing whether the nature and symptoms of the injury and the consequences of the injury are, subjectively for the plaintiff, "serious". The second requires a determination whether the injury as so assessed is objectively "serious" or, in the case of mental or behavioural disturbance or disorder, "severe" when compared with the range or "spectrum" of comparable cases.[11] As to any physical injuries, the second stage involves a consideration whether the injury is, when compared with other possible impairments, losses of body function or disfigurements, at least 'very considerable', and more than 'significant or marked'.[12]
4. Assessing the plaintiff's "pain and suffering consequences" resulting from an injury, requires the Court to consider both the plaintiff's experience of pain in addition to the disabling effect of the pain on the plaintiff's physical capabilities and enjoyment of life.[13] It may be necessary to consider the intensity, frequency and duration of the plaintiff's pain by reference to the plaintiff's account of the pain, what he or she does about the pain (for example medication, rest, seeking medical treatment), the medical opinions on the extent and intensity of the plaintiff's pain, and what the objective evidence indicates about the disabling effect of the pain.[14] Assessing the extent or degree to which pain from a physical injury impacts the plaintiff's physical capacity and enjoyment of life includes considering the effect of pain on the plaintiff's sleep, mobility, cognitive functioning, capacity for self-care and self-management, performance of household and family duties, recreational activities, social activities, sex life, and enjoyment of life.[15] The disabling effects of pain may also be shown by considering whether the plaintiff has resumed employment and, if so, what, if any, limitations there are on the plaintiff's employment.[16]

• 12 The weight that is ascribed to the plaintiff's account of pain will in part depend on the Court's assessment of the plaintiff's credibility or reliability.[17] An assessment of credibility or reliability depends on the plaintiff's evidence and the views expressed by the examining medical practitioners' and any opinions about the reliability of the plaintiff's accounts of pain.[18]

1. An assessment of serious injury because of a loss of earning capacity involves first, consideration whether the plaintiff satisfied the earlier described narrative test and then, assessing whether the plaintiff has suffered a loss of earning capacity of 40 percent or more as at the date of the hearing, and a permanent loss of earning capacity which produces a financial loss of 40 percent or more.[19] This may be done by determining the plaintiff's pre-injury earning capacity on a weekly basis, then calculating the amount that is 60 percent of that amount, and then determining whether the plaintiff has shown earning capacity is no greater than 60 percent of that amount.[20]

1. The plaintiff is 57 years of age having been born in November 1968. He is married, has an adult daughter, and lives with his wife and daughter in Hadfield, Victoria. The plaintiff was 50 years old when he sustained the injury about which he complains.

1. The plaintiff attended and completed year 12 at Fitzroy High School. Thereafter he commenced a computer programming course at Preston TAFE, but he left the course to take up a position with the Department of Defence.
2. The plaintiff worked with the Department of Defence for approximately 10 years during which time he undertook various roles including work as a technical officer, project manager and education/training coordinator. Since leaving the Department of Defence, the plaintiff has worked as a security officer, sheet metal fabricator, administrative worker, a duty manager in connection with traffic management at Melbourne Airport and a taxi driver.
3. The plaintiff commenced employment as a meter reader with Service Stream in or around July 2018. The plaintiff's hours varied but he was generally employed to work five days per week.

1. The plaintiff disclosed that he had injured his right knee playing soccer over 20 years ago, that he underwent a right ACL reconstruction in 2009 and had recovered well.[21] He has experienced migraines since his teenage years and he has experienced some back pain at times over the years, but did not recall any severe or long-lasting pain.[22]
2. There is no evidence of any significant back problems before the injury. Dr George Haralambakis, the plaintiff's long-term treating general practitioner (GP), opined that even if the plaintiff had some degenerative changes in his spine before the workplace injuries, these changes had not caused him any discomfort, pain, or disability to any significant degree.[23] MRI scans from 2019 and 2024 show mild to moderate degenerative changes.[24] The 2019 MRI revealed mild bilateral facet arthritis at multiple levels and mild disc disease, which was described as a consistent theme in the plaintiff's radiological investigations. The 2024 MRI showed minor disc bulging, and by then moderate facet joint degeneration, though a radiologist considered this essentially normal for the plaintiff's age. The plaintiff therefore does not appear to have significant pre-existing lumbar spine symptoms, and the available medical evidence suggests that any degenerative changes were asymptomatic prior to the 2019 injury.

1. According to the plaintiff's evidence, the histories he gave and recorded by various medical practitioners, the plaintiff's job involved driving to various meter reading locations, walking around residential properties, identifying meters, and performing meter readings throughout Metropolitan Melbourne and regional Victoria. He was required to walk over uneven ground, climb, squat, bend, and lift weights of up to 5 kg, with occasional heavier lifting required. In performing his job, the plaintiff was under time pressure as he had a certain number of meters to read each day. The plaintiff began to experience pain in his back, both sides of his groin and stomach, which he says was because of his duties, particularly in 2019. While the plaintiff was performing his duties on 21 May 2019, he experienced severe back pain. He reports that while performing the repetitive and physically demanding tasks, he developed lower back pain and swelling in his left groin. He attributes the onset of his symptoms, including his back injury and hernias, to the repetitive bending, squatting, lifting, and manual handling involved in his work duties. He explains that these symptoms worsened over time and led to significant pain and functional limitations, ultimately preventing him from returning to his pre-injury employment. Medical assessments attribute the aggravation of the plaintiff's lumbar spine condition and the development of his hernias to the physical demands and repetitive nature of his meter reading job, particularly activities such as lifting water meter covers and prolonged periods of bending and squatting.[25]
2. On 24 May 2019, the plaintiff attended St Vincent's Hospital Emergency Department due to severe back pain.[26] He took a few days off work in May 2019 following the severe back pain and returned to work on light duties which comprised of office work and putting thread tape on nuts.[27] The plaintiff made a claim under the Act for compensation which was accepted. In August 2020, the plaintiff was told by Service Stream that it had no further work for him and his modified duties were withdrawn. At the same time, his WorkCover payments were withdrawn[28] and his claim was subsequently compromised. He reached an agreement with his WorkCover insurer that his medical expenses in relation to his back condition would be funded from 21 October 2020 until 14 February 2025.[29]
3. The plaintiff said he remained under the care of his GP, Dr Haralambakis, who referred the plaintiff for review to Dr Phillip Sheard who is an orthopaedic and spinal surgeon. The plaintiff consulted with Dr Sheard on 13 June 2024. Dr Sheard referred the plaintiff for a bone scan which he had on 8 July 2024 and an MRI scan which he had on 5 July 2024. The plaintiff returned to Dr Sheard on 12 July 2024 who advised the plaintiff that there was no surgical option available and referred the plaintiff for review by a pain specialist. The plaintiff consulted with a pain specialist, Dr Shankar Ramaswamy, on 29 November 2024. Dr Ramaswamy suggested that the plaintiff have a medial branch block under sedation (bilateral L3 to S1) and told the plaintiff that he would request approval from the insurer for the procedure. The plaintiff returned to Dr Ramaswamy on 14 January 2025 and was told the procedure had not been approved yet but would follow it up. On 18 February 2025, the insurer advised the plaintiff that it had refused to fund the medial branch block including on the basis that the period for funding medical treatment had lapsed on 14 February 2025. The plaintiff has not returned to see Dr Ramaswamy.[30]
4. Dr Ramaswamy had earlier referred the plaintiff to see an occupational physician. The plaintiff consulted with occupational physician, Dr Sheik Yan Wong, on one occasion on 31 March 2025. He did not have the medial branch block procedure as funding was an obstacle. The plaintiff says that even if he had the medial branch block, radiofrequency denervation is not a procedure that he is keen on or would do. In addition to difficulties with funding, the plaintiff says he reflected a lot on what his father went through with invasive procedures on his back which has caused him some fear about it.[31]
5. The plaintiff takes medication as required to help manage his back pain. He says he tried taking Baclofen prescribed by Dr Ramaswamy but it was ineffective, so he stopped taking it. The plaintiff no longer takes Neurofen as it was giving him indigestion which was causing him to vomit. The plaintiff takes Mersyndol on a regular basis, but avoids taking it every day because it contains Codeine and he worries about the risk of becoming over reliant on it. On average he takes Mersyndol 3 to 4 times per week. He also takes Nexium daily for his stomach.[32]

1. The plaintiff says, relevantly, that he experiences ongoing lower back and middle back pain and numbness, altered sensation and pins and needles in his legs. He says that he is most affected by the injury to his spine. He says that he has constant pain in his lower back which fluctuates throughout the day and night, but it is always there to at least some extent. He says the pain can rise to a strong level. As a result of the spinal injury the plaintiff says that he has difficulty sitting or standing for long periods, particularly standing in one spot for long periods, bending and twisting, performing any heavy lifting, walking long distances and walking up and down inclines and declines.[33]
2. The plaintiff says he finds it hard to get comfortable at night and so his sleep is affected, and he often wakes up at night due to the pain. He said it is hard for him to go back to sleep after waking, and consequently he is often tired during the day.[34] He says that because of poor sleep, his focus and concentration on most days is poor.[35] Professor Richard Bittar records that the plaintiff told him that his sleep is impacted and that he gets less than six hours of sleep per night because of the pain and that he now sleeps separately from his wife because of his restlessness.[36]
3. The plaintiff said that his capacity to undertake daily living activities and household tasks was also affected. The plaintiff said that he finds mowing the lawns difficult because of the pain and he now pays someone to mow the lawn. He said that he found gardening difficult because of the bending and lifting involved and when he pushes himself to do some light gardening this leads to an increase in pain. He found performing general maintenance activities around the house difficult, and where once he was very handy in the past, he now feels limited in the things that he can do. He finds bending down to put on shoes and socks challenging and his wife also cuts his toenails because he finds this difficult. He said that he had difficulty making beds and found tasks such as vacuuming and mopping leading to an increase in pain, and he found driving for long periods would cause him to seize up and so he has limited his driving. He said that if he needs to travel a longer distance he will need to get out of the car and stretch.[37] The plaintiff told Dr Joseph Slesenger that he drove an automatic vehicle for no more than 30 to 60 minutes.[38]
4. The plaintiff told Professor Bittar that the back pain impaired his ability to perform daily activities and household tasks. He said he requires assistance from family for cleaning and shopping, that he pays for gardening help, and relies on takeaway food because he has difficulty preparing meals. The plaintiff said his personal care is also affected, and he requires help for tasks like cutting his toenails and putting on shoes and socks.[39]
5. The plaintiff said that he loved fishing in the past, but this is now less enjoyable because he finds it hard to sit and stand for long periods. He therefore undertakes fishing less frequently. He said that shooting was a hobby in the past, but he no longer shoots as it involves too much walking. He enjoyed motorbike riding regularly but now finds it causes too much pain and so he has given his motorbike to his nephew. The plaintiff said that he liked restoring vehicles but now he finds that this causes pain, and he struggles to bend into a car or get underneath a car to work on it. The plaintiff said that his niece plays in the AFLW, and he used to enjoy kicking the ball with her, but he can no longer do this as it causes too much pain.[40]
6. Professor Bittar records the plaintiff saying his pain has severely restricted his social life and recreational activities. He said he no longer participates in hobbies such as fishing, shooting, motorbike riding, vehicle restoration, or playing football with his niece. He said he goes out less often and enjoys social activities less than before.[41]
7. The plaintiff says that because of his back pain he has difficulty with riding his jet ski. He says that before his injury he would ride his jet ski about 6 times a year in the non-summer months and about 50 times during summer. He said that he undertook this activity as part of a social group and would go on long rides across the bay. He says that his jet skiing has now been significantly restricted because of his back injury. He says that he cannot ride the jet ski the way he used to and he does not go on long rides with the group. He says he now takes his jet ski out about two or three times a year, weather permitting, and when he takes it out it is basically to drop a line and do a bit of fishing.[42]
8. Dr Slesenger records in his 7 September 2025 report the plaintiff saying that he had been a keen jet skier and that he engaged in occasional jet skiing over the course of the last three months on two or three occasions. The plaintiff was limited to jet skiing on a flat surface and that a friend or family member would assist him in pulling the jet ski in and out of the water.[43]
9. The plaintiff is not working. He says that he attempted to help his brother-in-law in his business about a year later by doing some purchase orders. He said that he found his back really flared up because of the sitting involved and he also struggled to focus and concentrate. He lasted less than a day. He said he was not looking for work because he does not feel capable of working but that he would prefer to work.[44]

1. Dr Haralambakis is the plaintiff's GP, providing ongoing care for the plaintiff's back and hernia issues. The plaintiff first consulted Dr Haralambakis for hernia issues on 7 November 2018.[45] Dr Haralambakis has provided four reports, variously dated 17 November 2020, 5 May 2023, 5 February and 20 October 2024.[46] Dr Haralambakis has managed the plaintiff's treatment including referrals for imaging (MRI, ultrasounds, and bone scan) to investigate ongoing symptoms and referrals to specialists (orthopaedic, pain and surgery).[47]
2. Dr Haralambakis says that the plaintiff's employment as a water meter reader was a significant contributing factor to his back injury. Dr Haralambakis opines that repetitive bending, lifting heavy metal covers in unergonomic positions, and twisting while performing his duties led to a repetitive strain on his lower back and abdomen.[48] Dr Haralambakis opines that even if there were pre-existing degenerative changes, these had not caused symptoms before his employment in this role.[49] Dr Haralambakis noted that the plaintiff suffered an aggravation of pre-existing lumbar facet joint arthropathy as a direct result of his workplace activities[50] and he opines that after the workplace injury, the plaintiff experienced constant pain and significant restrictions in his daily life and work.[51]
3. Dr Haralambakis reports that the plaintiff continues to experience lower back pain, requires regular analgesia, and is restricted in bending, lifting, standing, or sitting for prolonged periods. He is also unable to participate in his pre-injury hobbies and leisure activities, which has contributed to psychological issues. The longer the plaintiff goes without appropriate therapy, the harder recovery becomes.[52] Dr Haralambakis recommends specific physiotherapy for the lower back, hydrotherapy focused on muscle strengthening, and correct core strengthening exercises and suggests psychological support for anxiety and depression related to his chronic work injuries.[53]
4. The plaintiff's prognosis according to Dr Haralambakis depends on access to the recommended treatments. If available, Dr Haralambakis considers that there could be overall improvement in both physical and psychological conditions, potentially allowing a return to some form of work (with retraining for less physical roles). Without these treatments, Dr Haralambakis considers that the plaintiff is likely to remain in constant pain, unable to return to meaningful employment.[54] Dr Haralambakis opines that the plaintiff's back injury has left him unable to perform his pre-injury duties or any alternative employment.[55]
5. In sum, Dr Haralambakis considers that the plaintiff's back injury was directly caused and significantly aggravated by his work duties, resulting in chronic pain and substantial functional limitations. Dr Haralambakis emphasises the need for multidisciplinary treatment and believes the prognosis is poor without it, but potentially improvable if appropriate therapy is funded and accessed.[56]

1. Dr Ramaswamy is a pain specialist and anaesthetist who prepared reports dated 29 November 2024 and 14 January 2025.[57] Dr Ramaswamy recorded that the plaintiff suffers from residual mechanical lower back pain with intermittent radiating symptoms, following a work-related injury. According to Dr Ramaswamy, imaging (bone scan and MRI) showed increased uptake at the L3/4 and L5-S1 facet joints and moderate facet joint changes at L4/5 and L5-S1 level. There was also a history of inguinal hernia surgery. Dr Ramaswamy recommended bilateral medial branch blocks at L3/4, L4/5, and L5-S1 as a diagnostic procedure to confirm facet joint pain. Dr Ramaswamy considered that if successful, radiofrequency denervation was the next step. Dr Ramaswamy also prescribed Baclofen for muscle relaxation and pain, though the plaintiff reported it only made his pain worse.[58]
2. Dr Ramaswamy discussed the potential for the plaintiff to return to work, noting that at the time of review, the plaintiff was unable to return to his pre-injury employment as a meter reader and did not have current work capacity. A brief attempt to return to work had not lasted more than an hour.[59]
3. Dr Ramaswamy noted ongoing pain and disturbed sleep. Dr Ramaswamy prescribed amitriptyline for pain and sleep and recommended a review in a few weeks. He also earlier referred the plaintiff to an occupational physician for further assessment.[60] Dr Ramaswamy requested insurer approval for the medial branch block procedure, but as of January 2025, approval had not been received. Eventually, the insurer refused to fund the procedure, and the plaintiff did not return for further review.[61]
4. In sum, Dr Ramaswamy's reports record mechanical lower back pain with facet joint involvement, recommended interventional pain procedures, and noted limitations in function and work capacity due to ongoing symptoms.

1. Mr Sheard is an orthopaedic and spinal surgeon who assessed the plaintiff during consultations that took place on 13 June and 12 July 2024. After noting briefly what the plaintiff had told him about the circumstances of his injury and brief treatment history, Mr Sheard records that his examination of the plaintiff showed the plaintiff was tender over the L5-S1 region and that: forward flexion reduced to approximately 50 degrees full extension; reduced left rotation and flexion; straight leg raising bilaterally to 60 degrees; negative sciatic stretch test; neurology intact; normal sensation and plantars downward. Mr Sheard arranged an MRI scan of the plaintiff's lumbar spine with SPECT/CT to look for any increased uptake and flexion/extension views to look for instability.[62]
2. On a subsequent review, Mr Sheard recorded that flexion and extension views show no instability and that the MRI scan shows some mild L4/5 nerve root compression and the plaintiff's predominant complaint is back pain. Mr Sheard recorded that the plaintiff's CT/SPECT shows increased uptake at facet joints, and he referred the plaintiff to a pain specialist for consideration of medial branch blocks.[63]

Dr Joeseph Slesenger, Specialist Occupational Physician

1. Dr Slesenger prepared three reports dated 21 April 2023, 7 September and 13 October 2025[64] respectively, and he considers that the plaintiff's pre-injury job demands, particularly repetitive bending, twisting, and manual handling, were a plausible cause of his lumbar spinal impairment. Dr Slesenger states that the employment continues to materially contribute to the plaintiff's injury and condition[65] and considers that the plaintiff sustained a soft tissue injury, an aggravation of previously asymptomatic degenerative disease of the lumbar spine because of his work activities and has developed chronic lower back pain with radiating features but without any confirmed evidence of radiculopathy.[66]
2. Dr Slesenger considers that there is an organic physical basis (aggravation of degenerative disease) for the plaintiff's lumbar spine impairment considering the plaintiff's history, the examination and the documentation that has been provided to him.[67] Dr Slesenger noted several injury related functional limitations and that the plaintiff should avoid prolonged sitting, prolonged standing, prolonged walking, prolonged driving, repetitive turning, repetitive twisting, repetitive stooping or bending, and lifting or carrying items weighing greater than 5 kg.[68]
3. Dr Slesenger noted that the plaintiff continues to experience symptoms related to his back injury and has been treated under the care of a physiotherapist. Dr Slesenger recommended further treatment, specifically a referral to a pain specialist for improved pain control, and suggested that interventional procedures and a pain management program may be beneficial.[69]
4. Dr Slesenger opined that the plaintiff cannot return to his pre-injury role as a meter reader, as the job demands are outside his capacity limits. And he considered the plaintiff is also unlikely to be able to return to any suitable alternative duties on a consistent and reliable basis due to his symptoms and functional limitations. Dr Slesenger considers that the plaintiff has no capacity for work.[70] Dr Slesenger also considered the plaintiff's capacity to undertake various other roles including information officer, car park attendant, product assembler, higher controller and gas meter reader concluding that the plaintiff was unlikely to be able to work in these roles performing the duties on a consistent and reliable basis.[71] Dr Slesenger reached the same conclusion about the plaintiff's capacity to perform a series of other employment positions including, product assembler, pathology courier, customer service officer, rental salesperson and rover/car park attendant.[72]
5. Dr Slesenger considered the plaintiff's prognosis is guarded. Dr Slesenger noted several negative prognostic factors, including the length of impairment, job detachment, psychological comorbidity, and the degenerative nature of the condition. However, he opines that the plaintiff is more likely to see an improvement in symptoms than deterioration in the foreseeable future, but cannot say whether incapacity will continue indefinitely.[73]
6. In sum, Dr Slesenger considers the plaintiff's back injury is an aggravation of a pre-existing degenerative disease caused by work activities, with ongoing symptoms and a guarded prognosis. He considers the plaintiff totally unfit for pre-injury or suitable alternative employment at present, and that the injury continues to materially contribute to his incapacity.

1. Mr Doig prepared four reports variously dated 24 October and 12 December 2022 and 28 July and 13 October 2025.[74] Mr Doig diagnoses the plaintiff with an aggravation of pre-existing asymptomatic facet joint arthropathy of the lumbar spine. He considers there is a substantial organic component to the plaintiff's pain, with objective signs including tenderness and limited range of motion. He notes that the injury is consistent with the plaintiff's work as a meter reader, which involved repetitive bending and manual handling, and that this work was a significant contributing factor to the development and aggravation of the back injury.[75]
2. Mr Doig noted the plaintiff experiences ongoing significant pain and discomfort in his back, with limited movement and functional restrictions. He finds it difficult to sit or stand for long periods, has trouble with daily activities, and his sleep is disturbed due to pain.[76] Mr Doig states that the plaintiff has had little in the way of treatment, despite recommendations (including his own) for pain management and facet joint injections. Mr Doig recommends that the plaintiff should be having treatment and be referred to pain management for consideration of facet joint injections. He notes that the lack of treatment is hindering recovery.[77]
3. Mr Doig considers that the plaintiff is not fit to return to his pre-injury employment as a meter reader, nor is he capable of performing any other suitable employment on a reliable and consistent basis at this stage due to his ongoing symptoms and lack of treatment. He notes that the plaintiff has no current work capacity, but that this may improve if appropriate treatment is undertaken.[78]
4. Mr Doig's opinion of the plaintiff's prognosis is guarded_._ Mr Doig states that if the plaintiff receives appropriate treatment (such as facet joint injections), there is a reasonable chance of improvement sufficient for a return to work. However, the longer the pain persists without treatment, the more entrenched and difficult to treat it becomes, and the more likely it is to become permanent.[79] Mr Doig considers the plaintiff's back injuries to be permanent, given the significant duration of symptoms and lack of improvement.[80] Mr Doig opines that the plaintiff's back injury significantly limits his ability to perform activities of daily living, household tasks, social and recreational activities. And he needs assistance with some personal care and cannot engage in activities he previously enjoyed.[81]
5. In sum, Mr Doig considers that the plaintiff's back injury is a permanent aggravation of a pre-existing facet joint arthropathy, caused and materially contributed to by his work duties. He considers the plaintiff is unfit for any employment, has significant functional limitations, and requires further pain management treatment. The prognosis remains guarded, with some chance of improvement if recommended treatments are pursued.

Professor Richard Bittar - Consultant Neurosurgeon

1. Professor Bittar saw the plaintiff on 28 June 2025 and prepared a report on the same day.[82] Professor Bittar diagnoses the plaintiff with an aggravation of lumbar spondylosis with ongoing lower back pain and referred leg pain. He considers the plaintiff's employment as a meter reader, which involved repetitive bending, walking on uneven terrain, and occasional lifting under time pressure, to be a significant contributing factor to the development and aggravation of the back injury. He considers the onset of the plaintiff's symptoms, and their exacerbation to be consistent with a cumulative trauma disorder with an acute-on-chronic presentation.[83]
2. Professor Bittar states there is a substantial organic component to the plaintiff's pain, supported by clinical findings and imaging, particularly facet joint changes seen on nuclear medicine scans.[84] Professor Bittar noted the plaintiff experiences constant severe pain**,** functional limitations (restricted sitting, standing, and walking), and neurological symptoms including bladder and bowel dysfunction. He considers these symptoms severely impact daily functioning, social and recreational activities, and sleep.[85]
3. Professor Bittar does not recommend spinal surgery but recommends continuing the current treatment regime, and specifically suggests:
   • Medial branch blocks to confirm the source of pain.
   • If effective, radiofrequency denervations (likely needed every 6 to 18 months).
   • Participation in a multidisciplinary pain management program.[86]
4. Professor Bittar opines that the plaintiff is totally incapacitated for work due to his back condition, and this incapacity is permanent. He considers the plaintiff cannot perform his pre-injury role or any suitable alternative employment on a consistent and reliable basis, as even light administrative work has proven unsustainable.[87] Professor Bittar considers the plaintiff is likely to continue experiencing significant pain and functional limitations indefinitely. He considers there is a likelihood of ongoing or progressive disability, and any employment would likely exacerbate his condition.[88]
5. In sum, Professor Bittar opines that the plaintiff's back injury is a permanent aggravation of lumbar spondylosis, caused and materially contributed to by his work duties. He considers the plaintiff has ongoing severe symptoms, is totally unfit for any employment, and the prognosis is poor, with continued disability expected.
6. In a supplementary report dated 20 October 2025, Professor Bittar considers some additional suitable roles identified for the plaintiff in the Recovre Vocational Assessment report dated 29 September 2025, namely those of courier, chauffeur, delivery driver, call centre operator, receptionist, rental salesperson and parking inspector. Professor Bittar opines that none of these roles would constitute suitable employment for the plaintiff because he would not be able to carry out the roles reliably and consistently by reason of his back injury.[89]

Dr Peter Grossberg - General Surgeon and Endoscopist

1. Dr Grossberg prepared five reports variously dated 18 December 2019, 6 March and 29 June 2020 and 6 July and 22 September 2025.[90] Dr Grossberg diagnosed the plaintiff with a mild lumbar back strain, noting no evidence of sciatica. He described the lumbar strain as a self-limiting soft tissue musculo-ligamentous injury that should resolve within a few months with appropriate treatment such as anti-inflammatories and physiotherapy. He also noted some degenerative disease of the lumbar facet joints, which could cause intermittent flare-ups and resolution of symptoms.[91] Dr Grossberg considers that the plaintiff should be able to return to his pre-injury duties, provided he is taught proper bending and squatting techniques. He did not consider meter reading to be heavy physical work and felt that lifting meter covers of 2-3 kg should not be problematic. He stated that by walking and reading meters, the plaintiff would have sufficient time for breaks and sitting during his duties.[92]
2. Dr Grossberg opined that no specific ongoing treatment was necessary for the plaintiff's back injury, suggesting that it could be managed with gentle exercises and analgesics. Dr Grossberg was not convinced that physiotherapy or hydrotherapy would provide further measurable benefit, given the time elapsed since the injury.[93] Dr Grossberg indicated the back injury had not fully resolved and might be an ongoing issue due to underlying degenerative changes. He expected symptoms to intermittently flare up and resolve, but did not see this as a barrier to returning to suitable work.[94]
3. Dr Grossberg did not consider that there were other factors affecting recovery from the back injury and encouraged the plaintiff's participation in occupational rehabilitation, including job analysis and functional assessment.[95] Dr Grossberg noted that the plaintiff was not a candidate for surgical intervention and that there was no correlation between his current presentation and investigations but that the plaintiff was very focused on the fact that he had some degenerative disease in the lumbar spine.[96]
4. Dr Grossberg considered the back injury to be mild and self-limiting, with no ongoing physical impediment to returning to pre-injury duties, though underlying degenerative changes could cause intermittent symptoms. He recommended return to work with appropriate education on body mechanics and did not advocate for ongoing intensive treatment. Most recently, Dr Grossberg noted that the plaintiff has not worked for approximately 4 years and continues to suffer from apparent significant symptoms of his lower back. He noted that he had initially thought the plaintiff's back pains were musculoligamentous in nature but now he was aware that this is probably on a background of some early degenerative changes of the lumbar spine that were picked up on an MRI after his complaint of back pain. Dr Grossberg opined that the degenerative changes of the plaintiff's lumbar spine will not alter and that it will progressively get worse over a period as is the natural history of these conditions. Dr Grossberg considered the plaintiff's overall prognosis is poor.[97]
5. As to the vocational assessments undertaken, Dr Grossberg opined on 22 September 2025 that:

The important aspect of the question that you asked me is whether the worker would be able to work on a consistent and reliable basis. I would have thought that in the normal course of events that he would be able to do nonphysical work as outlined in the vocational assessment report that would not involve twisting or turning or frequent bending (provided that he has the herniae repaired) He should also not involve any lifting beyond 5 kg.

Based on his history however and his current mental health status he would not be consistent or reliable as a worker. He would not be able to do any physical work as a result of the fact that he has a recurrent herniae. I did not find a para umbilical hernia as did the occupational physician but on occasions these are not clinically evident despite appropriate physical examination. This could of course be confirmed by an ultrasound.[98]

Dr Michael Bloom - Occupational and Environmental Physician

1. Dr Bloom prepared two reports dated 6 February and 21 March 2023 respectively.[99] Dr Bloom notes that the plaintiff has mild to moderate symptoms of degenerative dorsopathy (degenerative changes in the lumbar spine). He states that any soft tissue strain injury to the lower back would have resolved long before now. Ongoing symptoms are attributed to the pre-existing degenerative condition, not to any traumatic or occupational injury.[100]
2. Dr Bloom opines that the accepted soft tissue strain injury dated 21 May 2019 is no longer relevant and is no longer materially contributing to any condition or incapacity. He believes the ongoing symptoms relate to the underlying degenerative dorsopathy, which has nothing to do with the plaintiff's work as a meter reader.[101] Dr Bloom states there is no contraindication for the plaintiff to return to his pre-injury duties or suitable paid employment from the perspective of his lower back condition. Dr Bloom emphasises that the primary barriers to return to work are suboptimal levels of tolerance and motivation, rather than any ongoing physical strain injury.[102]
3. The best evidence-based treatment for degenerative dorsopathy, according to Dr Bloom, is good pain education, re-activation/functional restoration, and encouragement to return to suitable paid employment. Dr Bloom considers the prognosis is guarded primarily due to the plaintiff's pain focus and fear-avoidant behaviour, not because of the back injury itself.[103]
4. Dr Bloom recommends, in respect of suitable employment, that the plaintiff avoid prolonged static posture, have the latitude to change posture frequently, limit manual handling to no more than 5kg, and avoid climbing ladders or working at heights. These restrictions were suggested until full recovery from any hernia treatment, but from a purely physical perspective, there is no contraindication to full-time work duties.[104]
5. Dr Bloom concludes that any work-related back strain has resolved, ongoing symptoms are due to pre-existing degenerative changes, and there is no physical reason preventing the plaintiff from returning to work. The main obstacles are psychological factors, not the back injury itself.
6. Dr Bloom also considered a range of occupations for which the plaintiff would be suitable and which roles the plaintiff could undertake. These included building concierge, hire controller, car park attendant/rover and product tester/assembler. Dr Bloom opined that having read the details of the work site assessment reports in respect of these occupations, the plaintiff could undertake these jobs in a consistent and reliable basis without risking further injury. Dr Bloom opined that from a purely physical perspective there would be no contraindication to full-time hours in any of these jobs. Dr Bloom opined that because the plaintiff has been out of the workforce for so long a period of adjustment and work hardening would be recommended so that the plaintiff should commence on a part-time basis of 3 hours per day over four days per week, graduating to full-time over a period of not more than two months.[105]

Dr Majid Rahgozar - Consultant Occupational Physician

1. Dr Rahgozar prepared two reports dated 5 August and 22 September 2025 respectively.[106] Dr Rahgozar notes the plaintiff's presentation had elements suggestive of non-organic presentation and exaggeration of symptoms and disabilities.[107] Dr Rahgozar considered the plaintiff does not require any treatment for his spine apart from simple analgesics and self-managed exercises. A multi-disciplinary pain management approach may be considered due to significant non-specific pain, but ongoing pain and disability are likely until legal matters are resolved.[108]
2. Dr Rahgozar considered that from the point of view of the spine, the prognosis is good. The risk of future significant pain and disability is not different from a man of similar age and constitution.[109] Dr Rahgozar considered that the circumstances of the plaintiff's work environment, namely frequent bending and twisting of his back to uncover water meters, made it possible that he had sustained a musculoligamentous injury or exacerbation of pre-existing degenerative changes of the lumbar spine in May 2019. The reported abnormalities of the facet joints in his imaging are quite common in a man of his age and constitution, which would have been evolving over many years or perhaps decades prior to the 2019 injury and cannot be attributed to his occupational exposures or the compensable injury of May 2019.[110]
3. Dr Rahgozar opined that the spine imaging findings are common for a man of his age and are not concordant with his clinical presentation. There are physical signs suggestive of non-organic presentation and illness behaviour, indicating likely exaggeration of symptoms and disabilities.[111] Dr Rahgozar considered that the initial back injury from employment as a meter reader has resolved. Ongoing back pain is attributed to psychosocial circumstances and cannot be linked to his employment, exposures, or compensable injury of May 2019.[112] Dr Rahgozar considered that there is no need for specialist treatment or surgery for the spine, and the plaintiff's back pain is primarily non-specific and not caused by work-related factors.[113]
4. In considering the plaintiff's capacity for work, Dr Rahgozar states that the plaintiff has capacity for all the roles identified in the Recovre Vocational Assessment report - including information officer, receptionist, rental salesperson, car park attendant, meter reader, product assembler, courier, parking inspector, and call/contact centre operator - on a full-time basis without any restrictions. Dr Rahgozar considered that these roles do not have physical demands that would exceed the plaintiff's capacity, such as frequent heavy lifting or prolonged fixed postures, and are not likely to expose him to whole body vibration. Therefore, Dr Rahgozar concluded that the plaintiff is fit to perform these jobs consistently and reliably without any limitations.[114]

1. In a report from Dr Umberto Boffa, an occupational and environmental physician on 26 September 2020,[115] a referral from the plaintiff's treating GP, Dr Boffa opined that the plaintiff had developed an aggravation of a pre-existing lumbosacral facet arthropathy without radiculopathy and a left inguinal hernia from his constant bending and straightening up from a bent and twisted position as a result of the duties as a water meter reader. Dr Boffa recommended a self-managed graduated core strengthening walking program, beginning with 10-minute walks twice daily and graduating to 30-minute walks thrice daily over 12 weeks, clenching his buttocks when passing each driveway. Dr Boffa opined that the plaintiff may consider making a graduated return to work as an electric meter reader which involves less demanding manual handling than does water meter reading.[116]
2. In a report from Dr Sheik Yan Wong, occupational physician, to Dr Shankar Ramaswamy dated 31 March 2025,[117] Dr Wong noted that the plaintiff seems to have chronic lower back pain related to lumbar spine degenerative changes. He also has recurrent left inguinal hernia awaiting surgical review. Dr Wong noted that usual activities which do not require repetitive bending/twisting and heavy manual handling will unlikely result in worsening of the underlying pathology. Dr Wong noted that if the plaintiff is keen to return-to-work, he can return to part-time sedentary work with flexibility for him to change posture with no time pressure to complete tasks. Dr Wong acknowledged that it will be challenging to find an employment of that nature.[118]

1. The most recent MRI and bone scan reports of 5 July 2024 show the following results[119]:
   • As to MRI Lumbar Spine:

Discs are normal for age with excellent preservation of disc height and signal and posterior disc abnormalities are limited to very minor posterior disc bulging at L3/4 and L4/5.

Conclusion: Essentially normal examination for age.

Findings: Dynamic flow and blood pool phase imaging are normal.

There is mild-to-moderate uptake in the L3-4 facet joint bilaterally, more prominent on the right.

Subtle uptake is demonstrated in the left L5-S1 facet.

Delayed imaging does not demonstrate any other major osteoblastic focus with particular reference to the endplates, disc spaces and facet joints.

Uptake in the sacroiliac joints are symmetrical and normal.

The renal silhouettes and soft tissue outline remain normal.

Mild-to-moderate bilateral L3-4 facet arthropathy, more prominent on the right.

No other convincing osteoblastic cause of lumbar back pain demonstrated.

1. The plaintiff prepared a résumé at around the time he applied for employment with Service Stream.[120] There, the plaintiff describes himself as a "[d]ynamic and performance-driven administrative professional with strong organisational, customer service, coordination and communication skills. Multi-disciplinary industry expertise with emphasis in records management, payroll processing, accounts payable and receivable. Distinguished performance maintaining timely and accurate financial reporting; including accounts payable and receivable".[121]
2. During his oral evidence, the plaintiff said that he had been assisted in the preparation of the résumé by a friend who worked in a hiring firm.[122] In aid of a submission that the plaintiff has limited transferable skills, it was submitted the plaintiff's résumé was created by his friend who was doing her best to "dress up the plaintiff's résumé" to assist him to find employment".[123] There is no evidence for that proposition and in any event, apart from suggesting during re-examination that he did not formulate budgets, draft policies and his computer skills were not very good,[124] the plaintiff did not say that he lacked or exaggerated the preponderance of the other skills and experience set out in his résumé.
3. Two vocational assessment reports concerning the plaintiff had been prepared by Recovre. In the first report dated 20 March 2023, after summarising the medical opinions about the plaintiff's capacity for suitable employment, Recovre opined that:

Mr Ananiadis has a work history comprised of a variety of job roles including low-skilled machine operation, security operations and administrative job roles within the Department of Defence and Department of Foreign Affairs and Trade.

Mr Ananiadis noted that any future employment would require postural variety, specifically no prolonged sitting. Mr Ananiadis is of the opinion that he could not work a full day and he acknowledged that office based work which allowed him postural variety was potentially suitable for him to consider.

Mr Ananiadis acknowledged his varied work history and noted that he enjoyed the role he undertook at the Department of Defence as it included a variety of administrative and event management tasks. Mr Ananiadis also noted that he enjoyed his employment in Security at Melbourne Airport.

As such, Mr Ananiadis as (sic) a range of skills to utilise in suitable employment which accommodates his physical requirement of postural variety with no heavy or repetitive lifting. These include roles which utilise his sound English literacy and communication skills and his sound computer skills which he can utilise in a range of administrative, clerical and customer service roles.

Mr Ananiadis also has experience in low skilled work and as such he has capacity for roles such as packer and product assembler in roles which accommodate his need for postural variety.[125]

Based upon Mr Ananiadis education, work history, transferable skills and based on the opinions that Mr Ananiadis retains a capacity for suitable employment, the following work options have been identified as suitable for Mr Ananiadis to consider.

Recovre acknowledges that not all roles within each occupation would be suitable for Mr Ananiadis to perform however job roles can and do exist within the nominated occupations which are vocationally and physically suitable for him to perform.

The average gross weekly wage for these roles is noted and is taken from Jobmarkets.com.au reports relevant for the 2022/2023 period.

1. Information Officer ANZSCO:541211 $1436
   1. Hire Controller - classified under Clerical and Administrative Workers not elsewhere classified ANZSCO: 599999 $1351
2. Car Park Attendant ANZSCO:899912 $1495
3. Meter Reader ANZSCO:561912 $1161
4. Product Assemblers ANZSCO:832211 $972[126]
5. The second report is dated 19 September 2025. In that report, again after summarising the medical opinions about the plaintiff's capacity for suitable employment, Recovre opined that:

Since the vocational assessment dated 20/03/2023, Mr Ananiadis has not returned to any form of employment or completed any further vocational training. As such, the occupations recommended in the vocational assessment report dated 20/03/2023 remain suitable for Mr Ananiadis to perform along with the occupations of Courier, Chauffeur and Call Centre Operator.[127]

1. Thereafter the assessment sets out, in tabular form, inter alia, the number of positions vacant in Melbourne North-West, based on the plaintiff's residence and the average gross hourly rate of pay for each job into which the plaintiff could, in the assessor's opinion, become employed.
2. The plaintiff's evidence was that he could not undertake any of the jobs identified in the two vocational assessment reports. His reason was that to the extent that each of the jobs required sitting, standing, walking, lifting or bending, he could not do the job.[128] I found the plaintiff's responses unpersuasive, and for the reasons explained further below, I accept the defendant's contention that the plaintiff retains capacity for suitable employment, including part-time sedentary work with flexibility.

(a) He claims total and permanent incapacity for work due to intractable low back pain.

(b) His injury is diagnosed as an aggravation of a pre-existing, asymptomatic degenerative lumbar spine disease.

(c) Multiple medical experts support the diagnosis and the plaintiff's incapacity, including Dr Haralambakis, Mr Doig, Professor Bittar and Dr Slesenger.

(d) His work history is dominated by manual and semi-skilled roles, with limited transferable skills.

(e) He attempted to return to work and retrain but was unsuccessful.

(f) The pain and suffering consequences include impaired sleep, loss of function, reduced daily activity and loss of hobbies.

(g) His evidence was frank, honest, and unchallenged in critical areas.

(h) The medical evidence supports loss of work capacity, particularly due to reduced sitting tolerance.

(i) There has been no real challenge to the plaintiff's claimed pain, suffering, or inability to work.

(j) His credit and reliability are intact, and the evidence should be accepted.

(a) The plaintiff no longer relies on hernia or psychological injury for this claim.

(b) The defendant accepts that a lumbar spine injury exists but disputes the seriousness and whether it meets the statutory threshold.

(c) The medical evidence (Dr Grossberg, Dr Bloom and Dr Rahgozar) indicates no ongoing significant work-related impairment.

(d) The ongoing consequences of the back injury are not serious enough to meet the narrative threshold.

(e) The plaintiff retains capacity for suitable employment, including part-time, sedentary work with flexibility.

(f) Dr Wong and Dr Boffa opine the plaintiff can return to less physically demanding work.

(g) The plaintiff's varied work history shows adaptability and ability to retrain for new roles.

(h) The plaintiff retains significant physical abilities: walking, driving, fishing, jet skiing and trips with friends.

(i) The losses claimed are partial impacts, not total loss of activities.

(j) The agreed pre-injury earning capacity is $40,509 per annum; 60 percent threshold is $24,305.

(k) The plaintiff's treating doctors' opinions do not strongly support total permanent incapacity.

(l) The defendant relies on vocational reports showing available alternative employment options.

(m) The defendant challenges the plaintiff's credibility and reliability, pointing to alleged inconsistencies in his evidence and arguing that these should be considered when assessing the seriousness of his injury, the extent of his incapacity and his current capacity for work.

(n) Overall, the plaintiff's retained capacities preclude satisfaction of statutory "serious injury" and loss of earning thresholds.

1. There is no dispute, and I accept, that the plaintiff sustained a compensable injury to his lumbar or lower spine. The contest, as earlier noted is about the extent of the consequence of the injury and whether it meets the statutory threshold.

1. It is unremarkable that the plaintiff's reliability and credibility are important issues in serious injury applications. The defendant argues that these are particularly relevant here, given the existence of two broad bodies of evidence: one supporting a capacity to return to a variety of occupations, and the other claiming the plaintiff cannot work at all due to back injury. The reliability of the plaintiff's complaints, both as a witness and in medical consultations, is an important factor for the Court to consider. So much may be accepted.
2. The plaintiff submitted that his credit and reliability are intact and that his evidence should be accepted. I do not agree. As will be seen below, there are aspects of the plaintiff's evidence which are difficult to accept and I agree with the defendant that the plaintiff's failure to return to work, noting an aborted attempt in 2021 with his brother-in-law, despite medical support for a return, may reflect on his motivation and reliability. Added to this is the absence of any attempt to undergo any form of retraining or up skilling. There is no evidence of any failed attempt to up skill or retrain, and the plaintiff accepted that his varied work history demonstrated an ability to work in different areas and to retrain, if necessary, in different industries.[129] Altogether, for the reasons articulated by Dr Rahgozar and based on my own observations of him, the plaintiff is not at all times a reliable clinical historian. This is also underscored by Dr Bloom's assessment that the primary barriers to return to work by the plaintiff are the very suboptimal levels of tolerance and motivation he displays rather than any ongoing physical strain injury.
3. In these circumstances the plaintiff's wife's affidavit does not provide meaningful corroboration, and I give it little weight.
4. Whilst I do not completely reject the plaintiff's account of the impact of his injury, I am persuaded by the assessments of both Drs Bloom and Rahgozar in assessing the plaintiff's claimed pain and suffering consequences and his capacity for work.

Was the plaintiff's injury permanent/long term?

1. I consider that Dr Bloom's assessment that the plaintiff likely sustained a soft tissue injury in his lower back in the course of his work which represented an exacerbation of a pre-existing degenerative dorsopathy in the lower back, is reflective of the plaintiff's injury. Dr Bloom opines, and I accept, that any soft tissue injury will have naturally resolved and is no longer relevant. Dr Rohgozar concurs with that assessment. And it appears, and I accept that the plaintiff continues to experience moderate ongoing symptoms related to a degenerative facet arthropathy and that he has become pain focused and fear avoidant.

What was the plaintiff's pre-injury earning capacity?

1. As earlier mentioned, the parties have agreed the plaintiff's pre-injury earnings capacity was $40,509 gross per annum, which equates to $779 per week. Sixty percent of this figure is $467 per week, or $24,305 per annum.

What was the plaintiff's "after injury" earning capacity?

1. For the reasons set out later below, I do not consider the applicant has no capacity for work. Indeed, the evidence suggests that in respect of some occupations he has, or after a short easing-in period, he will have the capacity to engage in full-time employment. I accept that having regard to his age and the length of the period he has been out of the workforce that some of the jobs into which he might return might be difficult to obtain. I do not accept that the applicant's prior skills and experience are not transferable. The positions identified in the vocational assessments are, by and large, lower end skilled occupations requiring no formal qualifications. The plaintiff has a history of being employed in occupations requiring similar lower end skills as those identified in the skills assessment. The plaintiff acknowledges that none of the jobs he has previously undertaken required any formal qualifications.[130] I consider, and the evidence I prefer (discussed further below) supports, that at the very least the plaintiff could return to work in a part-time capacity in a number of the positions identified in the vocational assessment reports particularly those of car park attendant, building concierge, information officer, hire controller, rental salesperson and customer service officer. These occupations carry with them per annum earnings as follows: Car park attendant between $66,976 per annum and $77,740 per annum;[131] Information Officer between $74,672 per annum and $78,416 per annum;[132] Building Concierge $69,992 per annum;[133] Hire Controller between $40,000 per annum and $70,000 per annum;[134] Rental Salesperson between $40,000 per annum and $50,981 per annum;[135] and Customer Service Officer $59,280 per annum.[136]
2. To achieve at least 60 percent of the plaintiff's pre-injury agreed earnings, the plaintiff would need only work less than 20 hours per week in most cases. Based on the evidence that I accept as to his work capacity discussed further below this is more than achievable and so I am not persuaded that the plaintiff's earning capacity is no greater than 60 percent of the agreed pre-earnings amount.

Is the plaintiff permanently incapacitated for work?

1. For the reasons discussed further below, I am not persuaded that the plaintiff is permanently incapacitated for work, and he retains capacity to engage in suitable alternative employment at least on a part-time basis in the occupations described above.

What are the impairment consequences for the plaintiff?

1. The plaintiff reports experiencing daily ongoing pain, especially in the lower back, which is aggravated by prolonged sitting. He described that sitting for too long increases his pain, and even after taking breaks, the pain returns quickly. This pain also affects his sleep, causing impaired sleep and further impacting his daily functioning. The plaintiff states that the pain and inability to work have caused him significant distress and a sense of loss, as he is unable to provide for his family or enjoy social company as before. The plaintiff's evidence was that the pain in his lower back is constant, it fluctuates throughout the day and night, but it is always there to some extent, and the pain can rise to a strong level.[137] The plaintiff said that he takes Mersyndol for his pain, on a regular basis but not every day. He said that on average he takes this pain medication 3 to 4 times per week. He said that as the medication contains codeine, he is worried about becoming reliant on it.[138]
2. The plaintiff was advised by Dr Ramaswamy to undergo a medial branch block under sedation.[139] As earlier noted the request for approval for the procedure from the insurer was refused earlier this year. The plaintiff says that the lack of funding is an obstacle to him undertaking the procedure.[140] But in his affidavit he also expresses a reluctance to undergo such a procedure.[141] And during cross-examination the plaintiff was less equivocal indicating that he was not prepared to go through with the medial branch blocks as recommended by Dr Ramaswamy.[142] This was despite the medical opinion that undergoing the treatment might improve his back pain.[143] Although the plaintiff rejected the proposition that his refusal to undergo the treatment might suggest that his pack pain was manageable without the procedure,[144] I nevertheless consider that it is so indicative. Medial branch blocks are used, inter alia, to diagnose and plan further treatments for pain originating from spinal facet joints. And for completeness Professor Bittar, in his 28 June 2025 report also noted that whilst the plaintiff does not require surgery, he recommended the plaintiff should undergo medical branch blocks to confirm the source of pain.
3. During his cross-examination the plaintiff suggested, in response to a proposition that he could not know whether he could cope with a return to work in some of the jobs described in the vocational assessments without trying any of the jobs, that he was able to know because "even by sitting here [he was] just in excruciating pain"[145]. It must be said that during the entirety of the hearing the plaintiff did not exhibit, on my observations of him, any signs of being in "excruciating pain". And I struggle to understand that if the pain being experienced by the plaintiff is excruciating, why the plaintiff would not subject himself to a procedure which might relieve the pain. Objectively the absence of more frequent use of pain-relieving medication and the refusal to undergo a potentially beneficial pain-relieving procedure and a procedure which might be used to disclose further treatments for the pain, point more surely to a conclusion that the plaintiff's pain, although doubtless real, is manageable and is not excruciating as suggested in the plaintiff's narrative about his experience of the pain.
4. Moreover, as Dr Bloom pointed out there is no ongoing pain education or pain management.[146]

1. As to sleep, as earlier noted, the plaintiff says he has interrupted sleep because he is woken by the pain and it is hard for him to get back to sleep after waking, so he is often tired during the day.[147] He says because of poor sleep his focus and concentration on most days is poor.[148] Professor Bittar recorded the plaintiff's sleep is impacted and that he gets less than six hours of sleep per night because of the pain and that he now sleeps separately from his wife because of his restlessness.[149] The plaintiff's wife, Mrs Georgia Ananiadis, in her affidavit sworn on 14 October 2025 confirmed that she had sent her husband to the next bedroom to sleep because of his restlessness which was disturbing her sleep.[150]
2. The plaintiff told Dr Slesenger that he was waking at around 6:00 am or 7:00 am and retiring around midnight.[151]
3. During his oral evidence the plaintiff said that he usually gets between six and seven hours of sleep "from 12 to six basically" and that he retires around midnight.[152] The plaintiff sought to clarify inconsistencies about the number of hours he sleeps, explaining that while he may be in bed for six to seven hours, his actual sleep is less due to frequent awakenings caused by pain and in general he would get 6 to 7 hours sleep.[153]
4. That the plaintiff has interrupted sleep was not seriously challenged and I accept that he does. What is more difficult to accept is that the plaintiff's duration of sleep of less than six hours is a result of pain. What is not explained is why the plaintiff, who is not working, and says he is otherwise restricted in domestic tasks and hobbies is not getting to bed before midnight. There is no evidence that the plaintiff's pain is not allowing the plaintiff to go to bed before midnight. On the state of the evidence, I accept that the plaintiff is getting less than six hours sleep because of interruptions. I also accept the plaintiff is often tired during the day in part because of interruptions to his sleep. But the duration of the plaintiff's sleep is also affected by the time he chooses to retire, which for reasons unexplained does not begin until midnight. And there is no evidence that the plaintiff could not get to bed earlier or that the pain prevents him from so doing. The duration of his sleep is thus also impacted by the choices he makes about his sleep habits.

1. The loss of work capacity is principally relevant in assessing pain and suffering consequences to the extent that the lost capacity is significant to the plaintiff. And so, a loss of capacity to pursue a kind of work that the plaintiff has never expressed interest in will generally not be relevant.[154] There is no suggestion here of a loss of capacity to pursue or work in a particular desired job or career. As already noted, the plaintiff has worked in a variety of jobs and industries in positions that did not require formal qualifications. And as will be evident shortly, the plaintiff's capacity to continue to do so in various roles has been retained.
2. The plaintiff's work capacity is also relevant in assessing any loss of earning capacity consequences of the injury.
3. The plaintiff says he is unable to work in his pre-injury job or any other position for which he is suitably qualified by reason of his injury. The plaintiff submitted that he is totally and permanently incapacitated. The plaintiff gave evidence that he attempted to return to work by helping his brother-in-law in his business sometime in 2021 and specifically to help him out with some purchase orders but that he found that his back flared up because of the sitting involved and that he lasted less than a day.[155]
4. The plaintiff suggested that the preponderance of the medical evidence suggests he does not have a capacity for work, either in his pre-injury role or in other suitable employment. As earlier outlined, the plaintiff's principal treating physician Dr Haralambakis together with Mr Sheard, Dr Ramaswamy, Mr Doig, Professor Bittar and Dr Slesenger all consider that the plaintiff does not have a capacity for work. Professor Bittar also considered the plaintiff's capacity to undertake various roles identified in the vocational assessment reports. Professor Bittar concluded that the plaintiff would be unable to undertake any of the roles identified because of the various limitations to his tolerance to prolonged sitting, prolonged standing and prolonged walking as well as some roles involving extensive walking and bending.
5. However, Dr Grossberg considered in late September 2025 that the plaintiff has, subject to repairing the hernia, a capacity for work and Dr Grossberg noted the plaintiff could undertake physical work as outlined in the vocational assessment report that "would not involve twisting or turning or frequent bending". I do not accept the plaintiff's criticism of Dr Grossberg's opinion, that he now supports an ongoing material contribution by way of a persisting aggravation. Dr Grossberg acknowledges that he is now aware the plaintiff's back pain is probably on a background of some early degenerative changes of the lumbar spine that were picked up on an MRI, but nevertheless he clearly opines that the plaintiff would be able to undertake the non-physical work as outlined in the vocational assessment report that would not involve twisting or turning or frequent bending, provided he has the hernia repaired.[156]
6. Dr Grossberg had two months earlier opined that the plaintiff could undertake work which did not involve frequent bending, twisting and turning and that he would be suitable for a deskbound job provided he be permitted adequate times of rest and ability to walk around between jobs. Dr Grossberg does not identify what kinds of deskbound jobs would be suitable for the plaintiff having regard to the restrictions identified. In any event it appears to me that the positions of car park attendant, product assembler, courier, and parking inspector identified in the vocational assessment reports will unlikely involve frequent bending, twisting and turning rendering the roles suitable. The roles of information officer, receptionist, call or contact centre operator or rental salesperson are deskbound or predominantly deskbound jobs.
7. Whilst I accept that the plaintiff's age and period out of the workforce are factors which touch upon his capacity to obtain such employment, the positions are lower skilled positions requiring no formal qualifications and are well within the plaintiff's work experience and skill set.
8. As earlier noted, Dr Rahgozar considered the plaintiff's presentation had elements suggestive of non-organic presentation and exaggeration of symptoms and disabilities.[157] Dr Rahgozar considered the plaintiff could undertake all the roles identified in the vocational assessment reports. Dr Rahgozar opined that significant non-specific pain, but ongoing pain and disability are likely until legal matters are resolved.[158] While I accept the plaintiff's contention that Dr Rahgozar's opinion runs counter to the opinion expressed by the plaintiff's physician, I do not accept that Dr Rahgozar's opinion is infected by an unexplained refusal to accept the plaintiff's complaints of pain and history at face value as suggested by the plaintiff.
9. Dr Rahgozar was asked to report on whether there are any "objective signs" that the worker is feigning illness or exaggerating.[159] Dr Rahgozar opines that the plaintiff "is not a reliable clinical historian and this has been detailed in the 'Opinion and Diagnosis' section of [the] report".[160] Although there is no section of the report titled "Opinion and Diagnosis", in the section titled "ANALYSIS OF FINDINGS AND DIAGNOSIS", Dr Rahgozar opines that the plaintiff's "presentation today had elements suggestive of non-organic presentation and exaggeration of symptoms and disabilities. Therefore, one could argue that he is not regarded a reliable clinical historian."[161] Dr Rahgozar goes on to identify "objective signs" underpinning his view that the plaintiff was not a reliable clinical historian as follows:

With regards to his lower back pain and considering the circumstances of his work environment, namely frequent bending and twisting of his back to uncover water meters, it is possible that he had sustained a musculoligamentous injury or exacerbation of pre-existing degenerative changes of the lumbar spine in May 2019. The reported abnormalities of the facet joints in his imaging are quite common in a man of his age and constitution, would have bene (sic) evolving over many years or perhaps decades prior to the injury of 2019, and cannot be attributed to his occupational exposures or the compensable injury of May 2019.

A musculoligamentous injury or exacerbation of pre-existing degenerative changes of the spine tend to resolve in (a) few weeks or perhaps a couple of months. Today's assessment is in line with such resolution. Although a minor mechanical dysfunction of the lumbosacral spine cannot be ruled out but there is no evidence of spinal instability, cord compression or progressive neurological loss and the avaiblae (sic) imaging is quite unremarkable.[162]

1. Dr Rahgozar clearly regarded the plaintiff's physical presentation as being consistent with a resolution of any exacerbation of pre-existing degenerative changes to the plaintiff's spine and the absence of any evidence of spinal instability, cord compression or progressive neurological loss together with the unremarkable available imaging of that Dr Rahgozar reviewed, were inconsistent with the plaintiff's account of his pain.
2. Dr Bloom also considered the plaintiff had a capacity for suitable employment which involved avoiding prolonged static posture[163] which Dr Bloom opined was the most important condition and that the plaintiff should have latitude and facility to change posture frequently and to remain as mobile as possible.[164] Dr Bloom opined that the primary barriers to the plaintiff's return to suitable paid employment "relate to the very suboptimal levels of tolerance and motivation rather than to any ongoing physical strain injury".[165] The plaintiff suggested that Dr Bloom's evidence should not be accepted because of an unexplained refusal to accept the plaintiff's complaints about his pain. But such refusal is not unexplained. Dr Bloom considers that there is no contraindication for the plaintiff to return to his pre-injury duties or to suitable alternative employment.[166] And like Dr Rahgozar, Dr Bloom's opinion was based on his findings on examination and a review of the radiological material. Dr Bloom wrote:

The ultrasound of his left groin dated 4 July 2019 was reported to be consistent with a direct inguinal hernia. Today there is evidence of a recurrence of left inguinal hernia. The repair of his right inguinal hernia and umbilical hernia remain sound.

With regards the low back strain injury, although I was not given access to the MRI scan report, I gleaned from reading the attachments and clinical records that the MRI scan that was undertaken in 2019 was reported to show mild multilevel facet joint arthropathy and mild degenerative disc disease, but no foraminal or spinal canal stenosis. In other words, those described changes are degenerative and constitutional, and would have developed over many years and pre-dated his work with Service Stream Energy, and were not caused or significantly contributed to by his work. The described changes do not indicate traumatic injury or occupational injury.

From the clinical perspective, this man has mild dysfunction of his low back characterised by mild intermittent discomfort and stiffness and slightly restricted active range of motion. There is no clinical radiculopathy.[167]

1. On supervising a physical examination of the plaintiff, Dr Bloom recorded that the plaintiff walked with a normal gait, was able to heel and toe walk and was able to fully weight bear on each foot independently and that he achieved a full squat and transferred back to standing without support. Dr Bloom recorded that an inspection of the spine revealed preservation of lumbar lordosis and there was no deformity. Dr Bloom recorded that palpation revealed some tenderness, but no evident spasm and he recorded some restriction in the movement of the lower back.[168] Dr Bloom's observations in February 2023 as set out above are consistent with the conclusion arising from the examination conducted by Dr Rahgozar in August 2025.
2. The examination results and conclusions of both Drs Bloom and Rahgozar are unsurprising given that as early as September 2020 Dr Boffa, to whom the plaintiff had been referred by Dr Haralambakis, opined:

. . . your patient has developed aggravation of his pre-existing lumbosacral facet arthropathy without radiculopathy and a left inguinal direct hernia from his constant bending and straightening up from a bent and twisted position in the course of and as a result of his duties as a water meter reader.

He has no red or yellow flags and I recommend a self-managed graduated core-strengthening walking program, beginning with 10minute walks twice-daily and graduating to 30minute walks thrice daily over 12 weeks, clenching his buttocks when passing each driveway.

The direct hernia is less of an incarceration problem than its indirect cousin and requires no urgent attention in my view.

He may consider making a graduated returning to work as an electric meter reader, which involves less demanding manual handling than does water meter reading.[169]

1. Dr Boffa's opinion expressed above is consistent with the opinion of Dr Grossberg expressed a few months earlier wherein Dr Grossberg states that he believes the plaintiff "would be able to undertake his preinjury duties and hours with respect [to] his claimed lower back injury"[170]; that he needs to be taught how to bend down and squat rather than flex forward; and that he can actively participate and cooperate in the planning of his return to work including a rehabilitation process; and that the only specific treatment the plaintiff requires for his back is its management through exercise and analgesic tablets.[171]
2. Finally, Dr Wong, to whom the plaintiff was referred by Dr Ramaswamy, recommended in March 2025 that the plaintiff could resume work in jobs that do not require repetitive bending, twisting or heavy manual handling and that he could return to part-time sedentary work with flexibility for the plaintiff to change posture and without time pressure, acknowledging that it may be challenging to find employment of that nature.[172] The plaintiff criticised this report on the basis that it was a bit wishy-washy. That may be so, but it does not diminish the report's underlying message which is consistent with the reports of Drs Grossberg, Bloom and Rahgozar and the earlier report from Dr Boffa that the plaintiff retains a capacity to work.
3. Ultimately, I prefer the assessments of Dr Grossberg, Dr Bloom and Dr Rahgozar, as well as those expressed by Dr Wong and Dr Boffa. These support the view that the plaintiff is physically able to return to work, at least in a part-time or sedentary capacity, and in some cases even to full-time employment. These assessments are supported by the vocational assessment reports, and indeed some of the opinions endorse the plaintiff's capacity to undertake the roles identified.
4. The plaintiff's continued ability to engage in various physical activities, such as fishing and jet skiing, as well as the ability to undertake long distance travel, discussed further below reflect an ongoing physical capacity and are more consistent with the medical reports that I prefer than those which suggest the plaintiff has no work capacity.

1. Both the plaintiff's evidence and some of the medical evidence, are suggestive of restrictions in the plaintiff's mobility. For example, Professor Bittar, describes the plaintiff's mobility as a moderate restriction of lumbar spine flexion, with extension of the back being more painful than flexion, and paravertebral tenderness over the mid and lower facet joints.[173] Mr Doig also said there was tenderness, particularly around L3 bilaterally**,** and recorded findings as to the range of motion, but he does not specify what is normal.[174] Dr Ramaswamy noted objective findings of tenderness and pain on extension and axial rotation**,** consistent with symptomatic facet joint degenerative change.
2. Both the plaintiff's evidence and his complaints recorded in some of the medical reports are suggestive of a lowered sitting and standing tolerance. During his oral evidence the plaintiff requested and was granted a break mid-morning. In submissions the plaintiff suggested that this was indicative of his lower tolerance of sitting. However, the plaintiff did not specify why he wanted a break, and no reason is recorded in the transcript.[175] Moreover based on my observations of the plaintiff during his evidence, I did not discern any indication of discomfort exhibited by the plaintiff while he was seated.
3. In conducting a physical examination of the plaintiff Dr Rahgozar noted that the range of motion of the cervical spine and hip joints appeared to be normal, that he was able to unilaterally bear weight on right and on left standing on his tiptoes and on his heels and he could make a full squat. He observed that the plaintiff did not report any significant tenderness on palpation of the lumbar spine, pelvic girdle or lower limbs.[176] Dr Rahgozar observed the plaintiff's range of motion of lumbarrascal spine was severely restricted in all planes and that this was associated by expressions of pain upon simulated rotation of spine and axial loading.[177] But as already noted, Dr Rahgozar regarded the plaintiff's presentation as suggestive of an exaggeration of the plaintiff's symptoms and disabilities. This view was based on a conclusion that such injury or exacerbation of pre-existing degenerative change of the spine would likely have resolved in a couple of months and that the assessment undertaken by Dr Rahgozar was in line with such a resolution, together with the absence of any evidence of spinal instability, cord compression or progressive neurological loss and a review of the available imaging.[178]
4. In this regard I prefer Dr Rahgozar's assessment, which is consistent with various physical activities, such as fishing and jet skiing, as well as the plaintiff's ability to undertake long distance travel, and on my own, albeit limited, observations of the plaintiff during his evidence and whilst in Court.

1. The plaintiff said that he loved fishing in the past, but this is now less enjoyable because he finds it hard to sit and stand for long periods. But his evidence was that he would go fishing every few weeks over the summer, about 2 to 3 times each month which would be about 12 times over the summer, that he fishes from a riverbank and does so with relatives and friends, and that he fishes on the Mornington Peninsula while staying at his sister's house over the summer.[179]
2. The plaintiff said that he plans to do the same this summer.[180] The plaintiff also said that he has reduced the number of times that he goes fishing on a boat and fishing off the surf.
3. Although there was no mention of jet skiing in the plaintiff's first affidavit, the plaintiff says in his second affidavit that because of his back pain he has difficulty with riding his jet ski; that he used to ride his jet ski about 6 times a year in the non-summer months and about 50 times during summer; that he cannot ride the jet ski the way he used to and he does not go on long rides; and that he now takes his jet ski out about two or three times a year, weather permitting and when he takes it out it is basically to drop a line and do a bit of fishing.[181]
4. In his oral evidence the plaintiff suggested that he continues to jet ski only very rarely and that the last time he had jet skied was last summer.[182] As earlier noted, Dr Slesenger records in his 7 September 2025 report that the plaintiff said he had been a keen jet skier and that he had engaged in occasional jet skiing over the course of the last three months on two or three occasions. The plaintiff was limited to jet skiing on a flat surface and that a friend or family member would assist him in pulling the jet ski in and out of the water.[183] The plaintiff said in his evidence that he couldn't recall telling Dr Slesenger that he had jet skied over the course of the last three months.[184]
5. The plaintiff also said during his oral evidence that he recalls telling Dr Slesenger that he does ride the jet ski and "that'd be throughout the year ...".[185] This suggests that the plaintiff does not confine his jet skiing activities to the summer months.
6. The plaintiff agreed telling Dr Slesenger that when he goes jet skiing he attends with a friend or family member who will assist him in pulling the jet ski in and out of the water and he said, "that's basically what I do".[186] This suggests a capacity to bend and pull a relatively heavy item such as a jet ski, albeit with the assistance of another. The plaintiff was cross-examined about his capacity to ride a motorcycle, and specifically whether given his capacity to jet ski, he was impeded as he suggests in riding motorcycles.[187] The plaintiff disagreed with a proposition that riding a jet ski would be worse than riding a motorcycle because, he only rides the jet ski when the waters are not choppy and then only at a slow speed.[188] I have trouble accepting this evidence because it defies both common sense and basic physics. Riding a jet ski on an unstable surface such as water, even when calm, is likely to challenge the rider's balance and strength more so than riding a motorcycle on a more stable surface such as a road. Moreover, basic physics dictate that manoeuvring a jet ski at a slow speed through water, particularly turning, is more difficult than when the jet ski travels at speed. In any event, the notion that when the plaintiff undertakes jet skiing he does so only on calm waters cannot be accepted in as absolute terms as the plaintiff suggests. Conditions on water change quickly and that which might at the beginning be calm waters, might not endure.
7. Moreover, in the applicant's second affidavit, he deposed to the fact that he tried to ride his dirt bike once after his injury but stopped because of his back pain as there was too much vibration with which he could not cope. During cross-examination, the plaintiff rejected the notion that jet skiing would involve him bouncing up and down on the basis that he did not ride the jet ski when it was choppy. Whether the conditions on the water are choppy is not a matter over which the plaintiff has any say. Calm waters can become a little bit choppy reasonably quickly and without warning. But in any event, the notion that riding a jet ski buoyant on calm water does not involve some bouncing around or vibration is contrary to common sense and cannot be accepted.
8. The plaintiff also does not explain how it is that he is unable to continue fishing from the back of the boat because of the movement of the boat because it is too hard on his back,[189] but he is able to bear the same kind of buoyant movement of a jet ski on water.
9. At its highest, the plaintiff's evidence is that he engages less frequently in jet skiing, but it is an activity he still undertakes perhaps with less vigour than that which was once the case. I therefore also accept the defendant's contention that the plaintiff's continued ability to jet ski reflects a continued ability to do a wide variety of physical activities**.**
10. The plaintiff explained in his second affidavit that he stopped riding his dirt bike because it involved too much vibration. That may be so although I doubt there is an absence of vibration in riding a jet ski. The plaintiff said in that affidavit that he no longer rides his road bike because of the difficulty in leaning forward and that manoeuvring the bike was also taxing on his back. The plaintiff does not explain how manoeuvring a jet ski is less taxing on his back.
11. The plaintiff's evidence is that his capacity to go shooting is restricted because of the requirement for long walks. He is recorded as telling Dr Bloom that he no longer goes shooting because of a lack of availability of somewhere to shoot[190] but during cross-examination he denied saying that to Dr Bloom.[191] Although the plaintiff describes shooting as a hobby, in neither of his affidavits does the plaintiff depose to how often he would go shooting, with whom or where. In those circumstances it is difficult to assess in any meaningful way, the magnitude of the loss to the plaintiff. I also find it difficult to accept the plaintiff ceased going shooting merely because of the requirement for long walks in circumstances where the evidence is that the plaintiff can walk and stand for up to an hour.[192] Moreover the plaintiff's response during cross-examination that he could probably walk only half a kilometre[193] (500 metres) in one hour is just implausible. On that estimation it would take him 60 seconds or one minute to walk a little over 8 metres. This evidence is plainly exaggerated.
12. Dr Bloom also records that the plaintiff continues to pressure wash the concrete in his backyard and to fix various things in his home such as plastering and painting.[194] The plaintiff said during cross-examination that he hasn't pressure washed the concrete for ages but would be able to do so if required and that he has done it in the last few years .[195]
13. The plaintiff deposed to his hobby of restoring cars and indicated that he has not engaged in that activity since his injury. Dr Bloom however records the plaintiff telling him that his past times have included restoring old cars and that the plaintiff said that he continues to tinker with cars and car repairs.[196] Dr Bloom also records the plaintiff as telling him that he does nothing in the garden but spends time tinkering in the garage and that he gave examples of tinkering as making shelving, repairing car parts and working on his car.[197]
14. The plaintiff also gave evidence that he used to enjoy kicking the football with his niece who played in the AFLW, but he can no longer do this. He is recorded as telling Dr Doig that he cannot play social footy with the kids.[198] By this I gather the plaintiff is suggesting that he avoids engaging in kick-to-kick with his friends and family whilst attending AFLW games, when his niece plays for St Kilda as he deposes in his second affidavit.[199]
15. The plaintiff also gave evidence that he travelled overseas to Europe where he stayed for two months last year. That he did so on travel arrangements that self-evidently requires taking long haul flights does not sit comfortably with a person who says he finds it hard to sit for long periods, and that sitting for long periods is the reason why he assesses that several positions described in the vocational assessment reports are unsuitable.[200]
16. Overall, I consider that the plaintiff's participation in hobbies and activities has been somewhat affected but as discussed above, I do not consider the plaintiff's evidence about the reasons for his reduced participation particularly persuasive.

1. The plaintiff said that he no longer mows the lawn at his house because he finds it hard as it causes pain and so he has engaged someone else to undertake that task. He says he finds gardening difficult because of the bending and lifting involved and that he finds it difficult to make the beds as well as engaging in tasks such as vacuuming and mopping. The plaintiff said in his affidavit that because of his spine injury he has difficulty walking long distances. But he accepted that the assessment noted by Dr Slesenger that the plaintiff can walk and stand for about an hour was a fair assessment.[201] The plaintiff appears to have told Dr Bloom that he has a walking tolerance of about 30 to 60 minutes and that he is able to squat and kneel and to negotiate stairs.[202] Although he does the shopping, most meals and household work is carried out by his wife although he said that he does sweep, vacuum and dusts.[203] He also told Dr Bloom that he walks the dog every day.[204]
2. In his affidavit material, the plaintiff does not give any indication about how frequently he used to engage in cleaning activities before his injury and how frequently he used to make the beds which he now says he finds difficult. Although the plaintiff's wife deposes to the fact that the plaintiff avoids the heavier household chores, there is nothing in her affidavit nor in the plaintiff's affidavit which speaks to the frequency with which he engaged in those activities before the injury. It appears overall that the plaintiff still engages in many of the household chores but finds them more difficult.
3. Overall, I consider that the plaintiff's daily activities have been impacted but not in a significant way. There is much to be said about Dr Bloom's recording that the plaintiff said that he limits his level of physical activity because of a fear of increasing pain and worsening the damage to his lower back.[205]
4. Dr Bloom records, and there is no evidence to the contrary, that the plaintiff is otherwise fully independent in all his personal care activities, he drives his car and he has no trouble using public transport.[206]

1. The plaintiff's evidence was that he finds that he seizes up after a long driving trip and so he limits his driving. The plaintiff said that if he needs to drive longer distances, he will get out of the car and stretch. The plaintiff agreed that Dr Doig's recording that the plaintiff told him that he could drive up to 45 minutes was accurate.[207]
2. Again, there is no evidence about how frequently and over what distances or periods of time the plaintiff would drive before the injury and so it is difficult to assess the impact. There is evidence that in his prior employment he was required to drive to and from various suburbs both metropolitan and country to read meters. Restrictions on driving would obviously affect his capacity to engage in an occupation that involved regular driving but outside of employment, how frequently he needed to drive, over what distances and for what periods is unknown.

1. The plaintiff gave evidence that his intimate relationship with his wife has reduced greatly but gives no further detail. He deposed that he now sleeps separately, and this also impacts his relationship and closeness with his wife.[208] Mrs Ananiadis, confirms in her affidavit the separate sleeping arrangements because of the plaintiff's restlessness disturbing her sleep[209] but otherwise says nothing about the impact on their intimate relationship. Such evidence as she gives about the stress on their relationship arises from the fact that arguments are caused by her perception of the plaintiff's contribution to household chores and that she carries the burden of most of the housework. She also deposes to arguments about the length of time they spend out when going to restaurants or bars.

1. The plaintiff reports experiencing daily ongoing pain, especially in the lower back, which is aggravated by prolonged sitting. He described that sitting for too long increases his pain, and even after taking breaks, the pain returns quickly. The medical evidence that I have preferred suggests the plaintiff's experiences of pain is not so severe or disabling. This is reinforced by the pattern of use of pain medication and the refusal to undertake procedures which might alleviate his pain or at least point to an alternative or further path to treatment. And there is evidence with which I concur, that the plaintiff's presentation is suggestive of exaggeration and that he has a very suboptimal level of tolerance. The plaintiff's daily personal care activities do not appear to be impacted, but his domestic activities are somewhat. The evidence about his capacity to pursue all his pre-injury hobbies is mixed but he is still able to undertake several of them, and he has provided unsatisfactory reasons for the cessation or reduction of some.
2. Moreover, the activities to which the plaintiff deposed as being affected are not, as the defendant rightly pointed out, total losses. And it is appropriate to consider what the plaintiff has retained in assessing what the plaintiff has lost. As noted above, the plaintiff has retained the ability to go fishing, to jet ski, to drive, to walk for up to an hour, to go on overseas trips and on trips with his friends about which he gave evidence during cross-examination. Overall, the plaintiff has retained the ability to undertake a wide range of physical activity.
3. As to work activities and the capacity to work, I consider for the reasons given that he has a capacity for work. I agree with the defendant that, despite the plaintiff's denials, he lacks motivation to seek work. He has not tried any of the jobs he says he is not suitable for because "he knows" he can't do them. That is circular reasoning and reinforces Dr Bloom's assessment that there were no contra indications preventing a return to work and that the primary barriers for a return related to very suboptimal levels of tolerance and motivation rather than any ongoing physical strain injury.
4. For the reasons earlier given, I do not consider that the plaintiff's post injury earning capacity is no greater than 60 percent of the agreed pre-earnings amount.
5. The plaintiff's capacity to participate in and enjoy some of the activities and hobbies he enjoyed before the injury have been negatively impacted but I do not accept it is to the degree alleged for the reasons earlier articulated. And on the totality of the evidence, and the combined impact of the different matters discussed above, I am not persuaded that the plaintiff's impairment, considering the level of the plaintiff's pain and suffering consequence discussed above meets the "very considerable" test in s 325(2)(c) of the Act. I consider that when comparison is made with a range of cases, including cases involving impairment of the brain, the spine and larger or weight bearing joints, and cases involving consequences such as pain requiring prescription medication, significant medical treatment, significant sleep deprivation and inability to work or socialise, the plaintiff's impairment falls short of the statutory threshold. He retains a capacity to work and a capacity to socialise and he has retained capacity to participate in some of his pre-injury activities.
6. Consequently, the plaintiff's impairment of a body function, is not serious for the purposes of s 335(2) of the Act because the pain and suffering consequence discussed earlier is not, when judged by comparison with other cases, in the range of possible impairments of a body function, fairly described as being more than significant or marked, and as being at least very considerable.
7. As to the question whether the plaintiff's impairment of a body function is serious because of the loss of earning capacity consequence, the plaintiff has not satisfied the additional statutory requirements[210] because he has not shown a loss of earning capacity of 40 percent or more as at the date of the hearing nor a permanent loss of earning capacity which produces a financial loss of 40 percent or more. Consequently, leave under s 335(2)(d) of the Act on the basis that the plaintiff has established the loss of earning capacity cannot be granted. As earlier explained, I am not persuaded the applicant cannot undertake suitable alternative employment.
8. The application for leave to bring proceedings to recover damages for pain and suffering and loss of earning capacity is refused.
9. I will hear the parties on costs.

[1] Amended Plaintiff's Court Book (PCB) 44, 48, 51 62, 68, 69

[8] Section 325(2)(b) of the Act

[9] Section 325(2)(c) of the Act

[10] Humphries and Anor v Poljak [1992] VicRp 58; [1992] 2 VR 129

[13] Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69, 31 VR 1

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

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

[18] Haden at [12], citing Sabanovic at [142]

[19] Section 325(2)(e) of the Act

[20] De Bono v Victorian Workcover Authority [2019] VSCA 85 at [50]-[57]

[24] Exhibit P20 at PCB 157 and Exhibit P21 at PCB 163

[25] PCB 13-14, 19, 48, 51, 62, 68, 69, 141

[90] Amended Defendant's Court Book (DCB) 13-24, 199, 200

[154] Peak Engineering Pty Ltd v McKenzie [2014] VSCA 67 at [42]-[45]

[210] Section 325(2)(e) of the Act