Ljubicic v Victorian WorkCover Authority [2025] VCC 777

1. On 14 February 2019, the plaintiff was working at a construction site. He was walking and carrying some rubbish when he stepped into a set down and rolled his right ankle. He stumbled and felt immediate pain.
2. He attended the work medical clinic on the day of the injury.
3. On 22 February 2019, he had an MRI scan of the right ankle.
4. He completed a WorkCover claim form. His claim was accepted and his pre-injury average weekly earnings were assessed at $1,638 per week.
5. He had a further MRI scan of his ankle on 15 June 2019.
6. On 9 October 2019, ankle surgery was performed by Mr William Edwards..
7. In April 2020, his employment with the employer was terminated.
8. He has not returned to paid employment since February 2019.

1. In February 2024, the Court referred the matter to the Medical Panel.
2. The Medical Panel was asked to answer a series of medical questions, which included questions regarding the plaintiff's work capacity.
3. The Medical Panel provided a Certificate of Opinion dated 11 June 2024.
4. In summary, the Medical Panel found the plaintiff did not have the capacity to return to pre-injury work, but had the permanent capacity to work thirty-eight hours per week in suitable employment as a maintenance officer, a forklift driver, and a sign erector.
5. There was no dispute the Court is bound by the Medical Panel decision, nor that the Court must adopt the Medical Panel Opinion as binding and conclusive in accordance with s313(4) of the Act.[1]
6. Consequently, the only question to be determined by the Court is whether the plaintiff meets the "serious injury" test for economic loss.

(a) two affidavits sworn by him on 2 March 2023 and 25 February2025;

(b) Recovre Vocational Assessment report dated 15 September 2023;

(c) Flexi Personnel reports dated 3 October 204 and 14 March 2025;

(d) Enterprise Agreements covering the period 2016-2018 and the period 2020-2023;

(e) Payslips for the financial year ending 30 June 2018 and 2019;

(f) Nabenet Labour Market Analysis Summary Report dated 22 February 2021;

(g) Medical Panel Certificate of Opinion dated 11 June 2024;

(h) Medical Panel Reasons for Opinion dated 11 June 2024.

(a) CoWork Pty Ltd ("CoWork") Labour Market Analysis Report dated 23 December 2024;

(b) Job applications completed by the plaintiff.

1. During very brief cross-examination, the plaintiff agreed he had unsuccessfully applied for approximately ninety jobs, including a job as a sign installer.
2. There was no re-examination.

Has the Plaintiff satisfied the "serious injury test" for pecuniary loss?

1. In order to meet the statutory test, the plaintiff must meet the narrative test set out in s325(2)(c) and both limbs of s325(2)(e) of the Act.
2. Section 325(2)(e) has two requirements:

(a) s325(2)(e)(i) requires the plaintiff to show that, as at the date of the hearing, he has a current loss of earning capacity of 40 per cent or more, as set out in s325(2)(f) (the current "loss of earning capacity" threshold);

(b) s325(2)(e)(ii) requires the plaintiff to show he will continue permanently to have a loss of earning capacity of 40 per cent or more (the "permanent loss of earning capacity" threshold).

1. I have considered all the tendered evidence, and the oral submissions of counsel, but I shall only refer to the materials to the extent necessary in these reasons.
2. For the reasons that follow, I am satisfied the Plaintiff has met the serious injury test for loss of earnings.

1. In accordance with s325(2)(f)(i) and s325(2)(f)(ii) of the Act, to assess the "without injury" earning capacity, the Court has to consider the greater of:

(a) the amount the plaintiff is earning (whether in suitable employment or not); and

(b) the amount the plaintiff is capable of earning in suitable employment;

(c) the gross income (expressed as an annual rate) that the plaintiff was earning, or was capable of earning, from personal exertion during that part of the period within three years before and three years after the injury "as most fairly reflects" the plaintiff's earning capacity had the injury not occurred.

1. The parties could not agree on the figure which best reflects the plaintiff's "without injury" earnings or what amounts the plaintiff is currently capable of earning.
2. In respect of "without injury" earnings, the plaintiff made alternate submissions.
3. The plaintiff's primary submission was that the starting point for an appropriate figure was $3,412 per week/$177,424 per annum. This figure was said to be based on an analysis of the six-week period prior to the injury when the plaintiff worked overtime. Sixty percent of this figure is $2,047.20 per week/$106,454.40 per annum. The plaintiff then said that the figure should be adjusted to take EBA increases into account up until 2022 and therefore asserted the figure should be $2,348 per week/$122,096 per annum.
4. It is noted that these figures are contrary to what the plaintiff asserted in his second affidavit when he said

"My earnings at Oceania were substantial. For example, during a six-week period in the 2018 financial year, my average weekly gross income was $2,292. In the following 2019 financial year, working for 33 weeks until my injury on 14 February 2019, my average weekly gross income was $2,412. My highest weekly gross income was $3,412 for the week ending 6 February 2019."[2]

1. In the alternative, the plaintiff submitted that the appropriate starting point was $2,412 per week/$125,424 per annum, which was based on the plaintiff's income earned in the financial year from 1 July 2018 to the date of injury. Sixty percent of this figure equals $1,447.20 per week/$75,254.40 per annum. Consistent with the approach adopted in his primary submission, the plaintiff submitted that this figure should be adjusted to take EBA increases into account and therefore asserted that the sixty percent figure should be $1,660.70 per week /$86,356.40 per annum.
2. The plaintiff submitted the wages for three positions identified by the Medical Panel were lower than the figures proposed.
3. The defendant submitted the plaintiff's income with the employer was variable and inconsistent.
4. The defendant submitted the appropriate figure to represent the sixty per cent threshold is $1,447.20. The defendant said that, even if the Court accepted an argument that the appropriate figure was $1,457.30 or $1,600 per week, the plaintiff would still be unsuccessful.[3]
5. The defendant submitted the plaintiff was capable of earning in excess of $1,900 per week/$98,800 per annum in one of the positions identified by the Medical Panel.

1. I reject the plaintiff's primary submission - it cherry picks the highest figure earned by the plaintiff in the pre accident period. It is not a true reflection of his earnings.
2. I prefer the alternate approach suggested by the plaintiff, set out in paragraph 36 above, as it most fairly reflects the income earned by the plaintiff prior to the injury and takes into account the relevant EBA increases in the three year period after the injury.
3. I find that the appropriate sixty percent figure is $1,660.70 per week/$86,356.40 per annum

What are the jobs identified by the Medical Panel?

1. The plaintiff relied upon the following figures:

(a) Flexi Personnel ꟷ $1,003.20 per week/$52,166.40 per annum, based on the relevant award and classified at level 2 (CW/ECW2);[4]

(b) Nabenet ꟷ $1,068 per week/$52,416 per annum ꟷ it is not clear what this figure is based upon.[5]

1. The defendant relied upon the following figures:

(a) CoWork ꟷ provided a range of figures with the lowest figure being $941.70 per week/$48,968 per annum and the highest figure being $1,252.48 per week/$65,128.96 per annum.[6]

1. It is not necessary to make any findings regarding these figures, as none of the amounts exceed any of the sixty per cent figures contended by the parties.

1. The plaintiff relied upon the following figures:

(a) Recovre ꟷ $1,266 per week/$65,832 per annum,[7] which was described as being in the plaintiff's age bracket;

(b) Flexi Personnel - Grade 1 (basic) $960.64 per week/$49,953.28 per annum. Or, Grade 2 (advanced) $980.40 per week/$50,980.80 per annum.[8] There was no information regarding the differences between grades.

(a) CoWork:

(i) a forklift driver ꟷ $1,216 per week/$63,232 per annum. Or, up to $1,520 per week/$79,040 per annum;[9]

(ii) a tugger operator/loader ꟷ $1,459.58/$75,898.16 per annum. Or, up to $1,587.26 per week/$82,537.52 per annum.[10]

1. The defendant submitted the plaintiff was capable of earning $1,587 per week/$82,537 per annum as a tugger operator/loader which is higher than the sixty percent figure relied upon by the defendant.
2. The plaintiff submitted the position of tugger operator/loader was not the same as a forklift driver.
3. CoWork did not specifically say the two positions were the same.
4. The duties of a tugger operator/loader were described as:

"Your primary duties will involve the salvage of empty pallets with a forklift & assisting with loading trucks using Electric Pallet Movers (Tuggers).

Please note an LF Licence and Driver's Licence is essential for these roles. ... ."[11]

1. Given this description, I find that a tugger operator/loader job is a type of forklift driver job.
2. I find the defendant's reliance on the figure of $1,587 per week/$82,537 per annum is misconceived and I reject the defendant's submission that this is a job which would provide a wage higher than the sixty percent figure relied upon by the defendant.
3. I make that finding based on the following evidence:

(a) the defendant relied upon an hourly rate of $41.77 for a tugger operator - the material made it clear this higher rate was to be paid on shifts which commenced after 5:00pm and the lower rate of $38.41 was to be paid on shifts which commenced before 5.00pm;

(b) the job of tugger operator/loader was advertised as a 60-hour per fortnight job - i.e. thirty hours per week. The defendant's extrapolation of the figures to a thirty-eight hour week was not supported by the evidence and was not an accurate reflection.

1. The defendant made no submissions regarding the CoWork figures for a forklift driver.
2. Ultimately, even if the figure of $1,587 per week/$82,537 per annum was accepted, given the earlier finding that the sixty percent figure is $1,660.70 per week, the earnings for the forklift driver role (including the tugger operator/loader role) do not exceed this amount.

1. Both parties produced figures relating to jobs described as a "sign installer", as opposed to "sign erector". Neither party addressed the Court as to whether this was an issue.
2. The plaintiff produced the following figures:

(a) Recovre - Band 3 level $1,212 per week/$63,039.11 per annum;[12]

(b) Flexi Personnel - based on the Local Government Industry Award Level 2 ꟷ $980.40 per week/$50,980.80 per annum.[13]

(a) two sets of figures from CoWork:

(i) $950 per week/$49,400 per annum ("the lower figure");

(ii) $1,900 per week/$98,800 per annum ("the higher figure").[14]

1. Despite Recovre identifying the relevant wage as $1,212 per week/$63,039.11 per annum, the plaintiff submitted the appropriate figure based on the Recovre report was $1,245 per week/$64,740 per annum.
2. In addition, despite Flexi Personnel identifying the relevant wage as $980.40 per week/$50,980.80 per annum, the plaintiff submitted the appropriate figure based on the Flexi Personnel report was $960.64 per week/$49,953.28 per annum.
3. No explanations were offered for these discrepancies.
4. The defendant submitted the plaintiff could earn $1,900 per week/$98,800 per annum.
5. I prefer the plaintiff's figures, although they are somewhat jumbled.
6. I find the methodology adopted by the defendant was flawed. The CoWork report referred to a job in a sign company which commenced at the lower figure of $25 an hour for a graduate or new employee and noted that the hourly rate could increase to $50 per hour for a very experienced installer with a minimum of five years' experience.
7. The defendant submitted the Court should infer that the plaintiff could commence working in a job in a sign company at $25 per hour and in five years could earn up to $50 per hour. This is pure speculation and the Court will not draw such an inference.
8. The defendant relied upon the case of Roleff v Chubb[15] to support its argument that the Court should look at the word "permanent" in the common law sense.
9. I reject this argument, as it is speculative and the Court has to determine whether the plaintiff currently satisfies the serious injury test at the time of the hearing and to determine whether the plaintiff will continue permanently to have a loss of earning capacity of forty per cent or more.[16]
10. I prefer, and accept, the plaintiff's submission that the projected potential earning of $50 per hour/$1,900 per week (possibly in five years' time) is not representative of current real-world earnings. It was submitted this is suitable, as the starting salary was $25 per hour, rather than $50 per hour.
11. I accept the submission that the plaintiff does not currently have the capacity to earn $50 per hour.

1. Accepting the Medical Panel Opinion, I find the plaintiff does not have the capacity to return to his pre-accident employment and I further find the plaintiff has the capacity to work thirty-eight hours per week as a maintenance officer, forklift driver, and sign erector.
2. Bearing in mind this is a gateway application, I accept the plaintiff's evidence and find that none of the jobs relied upon would pay more than sixty per cent of the plaintiff's "without injury" earnings.
3. I reject the defendant's evidence for the reasons set out above.
4. I therefore find the plaintiff has satisfied the provisions of s325(2)(e)(i) and s325(2)(e)(ii) of the Act, as he has sustained a loss of capacity of 40 per cent or more, and this loss is permanent.
5. I refer to the observations of the Court of Appeal in Guppy v Victorian WorkCover Authority.[17] Considering the plaintiff has lost over 40 per cent of his earning capacity, I further find the loss of earning capacity consequences are fairly described as being "more than significant or marked" and are "at least very considerable". Therefore, the plaintiff has met the narrative test set out in s325(2)(c) of the Act.
6. Accordingly, the application is granted.
7. I will hear the parties on the question of costs.

[1] Masters v McCubbery [1996] 1 VR 635, Said v Smart Group Management Pty Ltd [2021] VCC 746; Durrant v 101 Warehousing Pty Ltd [2021] VCC 834; Kuluk v Victorian WorkCover Authority [2021] VCC 1262; Osborne v Victorian WorkCover Authority [2022] VCC 2244

[2] Plaintiff Exhibit 1, Plaintiff's Amended Court Book ("PACB') 19-20 at paragraph [14]

[6] Defendant Exhibit D1, Defendant Amended Court Book ("DACB") 109

[15] [2011] VSCA 21; (2011) 31 VR 235 at 244, paragraph [30]

[17] [2010] VSCA 164 at paragraph [51]