McMaster v VWA [2025] VCC 1345

(a) the plaintiff is unable to perform his pre-injury duties as a labourer; and

(b) he has some capacity for sedentary light work..

1. The extent of plaintiff's capacity for such work is in dispute.
2. Specifically, there is dispute as to:

(a) the quantum of the plaintiff's before injury weekly earning capacity; and

(b) whether the plaintiff's after injury earning capacity is no greater than 60% of his before injury earning capacity.

1. The plaintiff contends his pre-tax weekly earnings, at the time of the workplace accident, namely $1187.50, most fairly reflect his earning capacity before injury.
2. The defendant contends the plaintiff's gross earnings of $53,000 for the financial year ending 30 June 2022, equivalent to $1019 a week, is the best evidence of the plaintiff's before injury earning capacity.
3. The plaintiff contends he has a work capacity, limited to 12 hours a week, as a service advisor, customer service representative or data entry operator, which would keep him below the earnings threshold.
4. The defendant contends the plaintiff has a full-time work capacity as a service advisor, weighbridge operator, customer service representative, data entry operator, retail trade assistant, train driver, pick packer or warehouse assistant which would bring him above the earnings threshold, on either calculation of his before injury earning capacity.

1. In the evening, following the accident, the plaintiff went to the Warragul Hospital emergency department because of pain in his ankle and left foot. He was given analgesia.
2. On 23 March 2019 he went to Dandenong Hospital because of continuing pain. An MRI showed a complete rupture of his ATFL and rupture of CFL. Conservative management was recommended.
3. On 25 March 2019, the plaintiff commenced physical therapy.
4. On 23 April 2019, an orthopaedic surgeon, Prof Tran, examined the plaintiff and recommended conservative treatment. [2]
5. Because of continuing pain and mobility problems, the plaintiff sought a second opinion from Dr Keith who performed a lateral ligament reconstruction with internal fixation on 24 January 2020.
6. In September 2020[3], Dr Keith referred the plaintiff to a pain specialist, Dr John Monagle, for persisting pain.
7. Dr Monagle noted "he plays down his pain scores and calls it a 3/10 when he is walking, but his gait, posture and his response says it is significantly more than that."[4]
8. Dr Monagle diagnosed chronic regional pain syndrome ("CRPS") of his left ankle following the injury and surgical repair[5].
9. Because the plaintiff also presented as depressed, Dr Monagle also started him on an antidepressant and referred him to a psychologist. [6]
10. The plaintiff commenced psychological therapy in December 2020[7].
11. On 15 February 2021 Dr Monagle gave the plaintiff a ketamine infusion to try to treat his chronic pain. Unfortunately, it "was not well tolerated and not helpful"[8] .
12. Consequent upon the ketamine infusion, the plaintiff reported a significant decline, which included hallucinations and nightmares, in his mental health. A psychologist, Ms Edwards, diagnosed him with major depressive disorder and generalised anxiety disorder. He had counselling to help manage his mood and pain levels.[9]
13. Dr Monagle then recommended a trial of a spinal cord stimulator for pain relief. [10]
14. In June 2021, Dr Timothy Wood agreed the trial of a neurostimulator was an appropriate treatment. In his opinion, the plaintiff's ability to work was then significantly compromised. [11]
15. On 29 July 2021, the plaintiff underwent a trial implantation of a spinal cord stimulator. It gave him some improvement and, in January 2022, a permanent stimulator was implanted in his left buttock. [12]
16. On 11 March 2022, the plaintiff returned to Dr Monagle who noted the plaintiff was getting reasonable pain relief from the simulator and his mood and sleeping were much better. He referred the plaintiff to a podiatrist to correct the position of his left foot, which had turned about 60° away from his right foot, giving him a shuffling gait which led to right hip pain. [13]
17. On 13 April 2022, the plaintiff told Dr Monagle his pain had stabilised at about 3/10 when resting and worse when moving.
18. A podiatrist, Justin Bradley, gave the plaintiff some foot strengthening exercises, raised his left shoe heel and fitted some orthotics to support his left foot. [14]
19. On 2 December 2022, because of a flareup in his CRPS symptoms, Dr Monagle re-prescribed painkilling medications and turned up the plaintiff's stimulator.
20. Dr Monagle noted, "Outside of this Nick is travelling well. Married life remains exciting and he continues to look forward to his call-up to the train driver roster for VicRail." [15]
21. On 6 February 2023, Dr Michael Lucas, consultant occupational physician, assessed the plaintiff. In his opinion the plaintiff was then capable of performing duties without "excessive ambulatory/ankle loading exposures"[16] . The plaintiff had told him his "current plan" was to obtain employment as a train driver. [17] Dr Lucas believed the plaintiff could work as a train driver "in the absence of an inherent requirement to undertake excessive ambulatory/track walking duties (such as in the presence of train breakdowns)"[18]
22. In May 2023 Dr Wood reviewed the plaintiff.[19] The plaintiff had told Dr Wood he had applied to become a train driver, at the beginning of 2023, and was exploring forklift driver, warehouse operator and truck driver options [20] . Dr Wood believed the plaintiff had capacity to work in those roles. [21]
23. In July 2023, the plaintiff's treating GP, Dr Kapadia, considered the plaintiff was unfit for his preinjury job but fit to resume non-physical work and recommended reskilling. The plaintiff was then being managed with analgesics and physiotherapy.
24. On 18 January 2024, a specialist foot and ankle surgeon, Mr W.H.B. Edwards, examined the plaintiff.[22]
25. In his opinion the plaintiff was "greatly disabled" by his CRPS[23] . He believed, because his ability to walk and stand was very limited, the plaintiff was able to do only sedentary work.[24]
26. On 3 December 2024, the plaintiff consulted Dr Kapadia in relation to continuing left ankle pain. The plaintiff told him he wanted to go on to a pension because he could find any light duty work. Dr Kapadia noted his belief the plaintiff has capacity for light duties. [25]
27. On 18 December 2024 Thomas Kossmann, orthopaedic surgeon, assessed the plaintiff. He found the plaintiff had restricted movement in his left ankle and was limping.
28. He believed the plaintiff was permanently unfit for his preinjury work. In his opinion the plaintiff may have had "a very reduced work capacity for modified/light duties, depending on his pain issues." [26]
29. On 7 January 2025 a psychiatrist, Dr Brendan Hayman, assessed the plaintiff. He diagnosed a mild adjustment disorder with depressed and anxious mood.[27]
30. On 16 January 2025 a pain specialist, Dr Clayton Thomas, examined the plaintiff.
31. He confirmed the diagnosis of complex regional pain syndrome. He noted the plaintiff's primary problem to be limited mobility. He also noted the stimulator had allowed the plaintiff to wean off his medication.
32. In his opinion the plaintiff could not perform any work that is "beyond very part-time, close to home, sedentary to semi-sedentary with minimal standing and walking"[28]
33. An orthopaedic surgeon, Michael Dooley, examined the plaintiff on 18 March 2025. The plaintiff told him he continued to suffer significant pain and disability in his left ankle. In Mr Dooley's opinion the plaintiff has a capacity for light physical work and clerical type work . He noted, "return to such work would need to be on a graduated basis but, ultimately in time, I believe that Mr McMaster would have the ability to return to full-time work." He believed the plaintiff had the capacity to work as a workshop administrator, weighbridge operator, customer service representative, data entry operator or retail trade assistant as had been suggested in a vocational assessment.[29]
34. On 20 May 2025 an occupational physician, Dr Eman Awad, assessed the plaintiff.
35. In her opinion the plaintiff is permanently unfit for his pre-injury duties or any duties which "require him to push, pull, lift, carry above 10 kg, prolonged stand, prolonged walk, walk on uneven grounds, kneel, squat, climb, work at heights, run or move at speed" .[30]
36. Dr Awad believes, considering, inter-alia, his age, the nature of his injuries, level of education and qualifications and the length of time he has been out of work, the plaintiff has capacity for a sedentary role for 12 hours a week. She believes the plaintiff is unlikely to ever return to full-time employment.[31]
37. Specifically, she believes he has capacity for 12 hours work a week as a service advisor/workshop administrator, customer service representative or data entry operator[32] which are sedentary roles.
38. She believes the plaintiff does not have capacity for work as a weighbridge operator[33], retail trade assistant[34], pick packer[35], production roles/warehouse assistant[36] or train driver.[37]

1. The plaintiff swore three affidavits and gave evidence.
2. He is a 36-year-old married man who has a one-year-old daughter.
3. He deposed :

(a) he completed year 10 at school;

(b) he then completed an automotive mechanic's apprenticeship;

(c) he had mechanic's and labouring jobs until he injured his left ankle;

(d) he suffers constant pain in his left ankle and foot;

(e) he can walk for only about 20 minutes and standing for more than 20 minutes is difficult; [38]

(f) he walks with a limp and has been getting right hip pain;

(g) he gets back soreness at the site of his spinal cord stimulator and cannot kneel or squat properly; and

(h) his driving time, in an automatic vehicle, is limited to about 45 minutes

(a) he has been unable to work since the accident;

(b) in 2023, he obtained a forklift license and applied to join Metro rail as a train driver but, after a telephone interview, was unsuccessful;

(c) in July 2025 he completed a job seeking course which included preparation of resumes and covering letters;

(d) he has applied unsuccessfully for other jobs including warehouse worker, forklift driver and store manager [39]; and

(e) he is looking to do an online drafting course with a view to working in his family's structural steel fabrication business, if only on a limited casual basis.

(a) he has stopped pain medication and managed the pain by raising the stimulator output;[40]

(b) his ankle pain is manageable so long as he does not do anything silly;[41]

(c) he wants to return to work to support his family;

(d) he believes he has a limited work capacity; and

(e) he got to the interview stage of a train driver application.[42]

1. When he was asked about his injury, he was told he was not suitable for the job because the work involved track walking [43] over ballast when the driver needs to get a train which is parked at the depot.[44]
2. He agreed in December 2024 he told his doctor he wanted to go on to a disability pension because he could not find light duty work.
3. He agreed his doctor said he should be able to find work[45] so he tried to look for work.[46]
4. He said:

(a) there is no presently suitable role for him in the family steel fabrication business so he is looking at drafting courses, for which he will need some further education before he can apply to do such a course[47] , so he might be able to work from home preparing drawings for the manufacture of parts;

(b) he is getting some help from his brother but had not found the right course yet;[48]

(c) he believed he could do light work, largely seated, so long as he could get up and move around to move his foot;

(d) when he did his recent course he had the computer next to his bed so he could lie on the bed, which is his most comfortable position, and then get up and sit on the chair to use the computer;[49]

(e) he got his forklift license; however, he can only drive a one pedal forklift because he cannot put pressure on his left foot;[50]

(f) he might be able to do service advisor, workshop administrator or data entry type work [51]if the job did not require physical work; however, he could not work for very long because of pain when sitting [52] ; he would need to get up and walk around, or lie down, even better;[53]

(g) he could sit for possibly an hour and ½ but would then need to lie down for half an hour because of pain; [54]

(h) he did not believe he could work as a retail trade assistant because it requires standing and walking and he cannot walk for very long because it hurts; and[55]

(i) His pain is constantly at 4/10 since he stopped the medication. [56]

1. When asked about his future he said he would like to help in the family business if he is smart enough to do further study. [57]
2. He agreed he could do light physical work so long as it is very limited; he doubted he could return to full-time work.[58]
3. He disagreed he could work as a weighbridge operator because it involves climbing trucks and inspecting trailers.[59]
4. He doubted he could do pick/packing work because of the volume of picking things up and loading them onto pallets.[60]
5. In re-examination he said:

(a) he could sit for an hour to an hour and ½ maybe then, because of pain, he needs to put his foot up or lie down for half an hour;[61]

(b) he gets random flareups of burning pain in toes and leg which can take the pain up to 7/10;[62]

(c) he discloses his ankle condition in job applications and does not receive a reply to most job applications; sometimes he is asked for further details but then gets no follow-up; [63]

(d) he hopes he could do a drafting course to work in the family business, on his computer at home where he would be able to lie down when he needed; and

(e) He thinks he could work for probably an hour and ½ before he would need to lie down to calm his foot down. [64]

1. The defendant contended the "most beneficial" measure of the plaintiff's without injury weekly earnings is $1019 based on his gross earnings for the 2022 financial year. 60% of that figure is $611.
2. The defendant contended the plaintiff has failed to prove a permanent loss of earning capacity which produces a financial loss of 40% or more.
3. Relying on the opinions of the plaintiff's general practitioner and physiotherapist, and Dr Wood, Dr Dooley and Dr Lucas, the defendant contends the plaintiff is fit for full-time light physical and clerical work, including service advisor/workshop administrator, weighbridge operator, customer service representative, data entry operator and retail trade assistant with gross weekly earnings ranging from $982-$1886[65].
4. More, the defendant contends the plaintiff has capacity to work as a Metro train driver earning $2134 a week.
5. The defendant contends the plaintiff has demonstrated that capacity by getting to interview stage and I should reject, as a recent invention, his evidence Metro told him, when they interviewed him, he was not suitable for the position because of his injury.
6. The defendant also contends I should reject Dr Awad's opinion the plaintiff has capacity for only limited work, because "it's not well reasoned".[66]

1. The plaintiff contends the plaintiff's weekly pay of $1187.50[67], immediately before his injury, is the best measure of his without injury earnings.
2. The plaintiff contends his long-standing diagnosis of CRPS, the need for surgical intervention and stimulator implant, with his lasting limp, demonstrate the plaintiff has a severe persisting disability.
3. The plaintiff contends, because the assessments of Dr Wood and Dr Lucas are dated, their opinions the plaintiff has some capacity for full-time work, should not be accepted.
4. The plaintiff contends should reject Dr Dooley's opinion because it is against the weight of the specialist evidence.
5. The plaintiff contends I should accept the opinions of Dr Edwards[68] , because he is a specialist foot and ankle surgeon, and Dr Awad[69], because hers is the only current occupational assessment, and, in relation to both, because Dr Kossmann[70] and Dr Thomas[71] have given similar opinions, namely that the plaintiff has capacity for only part-time, sedentary work.
6. The plaintiff contends these opinions are consistent with his evidence and, in combination, they establish he cannot work full-time and has only limited work capacity which brings him below the earnings threshold.
7. The plaintiff contends I should reject Dr Dooley's opinion because it is against the weight of the evidence.
8. I find there is force to the plaintiff's contentions.

1. I assess the plaintiff to have been a credible and reliable witness.
2. He has a solid work history before the injury. I accept his evidence he is trying to get back to work because of his desire to support his wife and young daughter.
3. He suffered an injury which, as the defendant accepted, was serious within the meaning of the Workplace Injury Rehabilitation and Compensation Act 2013 ("WIRCA").
4. He underwent an ankle reconstruction, a failed ketamine infusion and has a permanent spinal cord stimulator implant to manage his chronic pain.
5. He is permanently incapacitated for his pre-injury work.
6. I accept his evidence:

(a) he applied for a train driver's position because he likes trains[72] and he had heard Metro looks favourably on applicants with a disability;[73]

(b) he was told he was unsuitable for the position because of the requirement for track walking;

(c) he has applied unsuccessfully for many jobs and is hopeful of reskilling as draftsman with a view to working in the family engineering business where he can work from home at reduced capacity; although the availability of suitable course may be a barrier; and

(d) he has chronic pain, from time to time elevated by random flareups, which severely restricts his capacity to lift items or to stand or sit for any lengthy period without the extended breaks.

1. In all the circumstances I must consider what work the plaintiff might, in the foreseeable future, be able to do on a regular and consistent basis.[74]
2. For the reasons the plaintiff advanced, I accept;

(a) Dr Thomas's opinion, which is supported by Dr Kossmann's assessment[75], that the plaintiff cannot perform any work that is beyond very part-time, close to home, sedentary and semi sedentary with minimal standing and walking[76]; and

(b) Dr Awad's opinion the plaintiff has capacity only for 12 hours a week work in the sedentary roles of service advisor/workshop administrator, customer service representative or data entry operator[77]

1. As a service advisor his earnings, for 12 hours work, would be $309.64, for customer service, $307.80 and for data entry, $298.44[78].
2. Overall, I am satisfied the plaintiff, regardless of which of the three positions may be suitable, meets the threshold test, whether his without injury earning capacity is $1187.50, as the plaintiff contended, or $1019, as the defendant contended.
3. Were it necessary to decide, following the Victorian Court of Appeal's guidance in Jessop[79] and Yirga-Denbu[80] I would determine his gross weekly earnings, at the time of the accident, of $1187.50,[81] most fairly reflect his before injury earning capacity.

1. I am satisfied the plaintiff has met the narrative test[82] for serious injury.
2. I am also satisfied the plaintiff has established he has suffered:

(a) a loss of earning capacity of 40% or more as at the date of the hearing, and

(b) a permanent loss of earning capacity which produces a financial loss of 40% or more. [83]

1. Accordingly, I grant the plaintiff leave to commence common law proceedings for pain and suffering and loss of earning capacity damages.
2. I will make the consequential orders.

[7] Evergreen Psychology, Ashlee Edwards, PCB 51

[33] because it requires prolonged standing, bending and looking under vehicles and squatting

[34] because it requires lifting and carrying

[35] because it requires prolonged standing, walking and lifting

[36] because it requires lifting and prolonged standing

[37] because he would not pass the requirement to be trackside

[38] I note he was seated for an hour in the witness box while he gave evidence

[65] see "Workable Consulting" vocational assessment DCB 91 - 97

[74] Harris v DJD Earthmoving Pty Ltd [2016] VSCA 188, [49].

[78] see "Flexi Personnel" earnings report PCB 116 and 117

[79] The Herald & Weekly Times Limited and VWA v Jessop [2014] VSCA 292

[80] Yirga-Denbu v VWA (2018) 57 VR 545

[81] stated in the injury claim form PCB 115

[83] WIRCA s 325 (2) (e) (i) and (ii)