Nuuola v Victorian WorkCover Authority [2026] VCC 329

(a) What are the permanent impairment consequences of Mr Nuuola's compensable spine injury?

(b) Is Mr Nuuola permanently unable to earn at least 60 per cent of his "without injury" earnings because of the impairment consequences of the compensable spine injury?

(c) Is the loss of earning capacity consequence of Mr Nuuola's compensable spine injury "serious"?

(d) Is Mr Nuuola permanently unable to earn at least 60 per cent of his "without injury" earnings because of the impairment consequences of the compensable psychological injury?

(e) Is the loss of earning capacity consequence of Mr Nuuola's compensable psychological injury "severe"?

(f) Are the permanent impairment consequences of Mr Nuuola's compensable spinal injury "serious"?

(g) Are the permanent impairment consequences of Mr Nuuola's compensable psychological injury "severe"?

1. For the reasons that follow, Mr Nuuola is granted leave to seek loss of earning capacity damages for his compensable spine injury. Such leave also entitles Mr Nuuola to claim pain and suffering damages.

1. The following, I believe, are non-controversial matters. As far as any were contested, these represent my findings unless otherwise stated.
2. Mr Nuuola was born and brought up in New Zealand. He completed Year 13 in high school, which is the equivalent of Year 12 in Australia.
3. After leaving school, Mr Nuuola worked as a bus and truck driver and furniture removalist.
4. In about 2008, when aged twenty, Mr Nuuola moved to Brisbane with his family. He again worked as a truck driver and furniture removalist, and then as a security guard.
5. In early 2011, Mr Nuuola relocated to Melbourne. He first worked for the employer as a storeperson through a labour-hire agency in October 2011. In May 2012, following a pre-employment assessment at Bodycare Workplace Solutions, the employer engaged him directly as a full-time employee.
6. Mr Nuuola is approximately 195 centimetres tall, and in May 2012, he weighed about 180 kilograms.
7. Mr Nuuola had experienced episodes of back pain from time to time prior to the incident. He consulted his general practitioner ("GP") and had no more than a day or two off work on such occasions.
8. He had also suffered from episodes of cellulitis prior to the incident. In 2008, he was treated at the Ipswich Hospital, Brisbane, for cellulitis in his right leg.
9. In June and July 2017, Mr Nuuola had an ulcer or wound on his right lower leg which was slow to heal and required antibiotics.
10. Mr Nuuola's work for the employer involved loading cages of produce into trucks. The cages could weigh as much as 200 to 400 kilograms. Mr Nuuola was required to manually manoeuvre the cages within the trucks.
11. On the day of the incident, Mr Nuuola was in the process of moving a cage when it became stuck in the grooves on the floor of the truck. As Mr Nuuola applied force to move the cage, he experienced pain in his lower back. He stopped work and went home.
12. Mr Nuuola submitted a Worker's Injury Claim Form on about 14 December 2017. The claim was accepted.
13. In early December 2017, Mr Nuuola experienced an episode of cellulitis and was prescribed antibiotics. On 11 December 2017, his wound was noted to be getting better and healing well.
14. Mr Nuuola was unable to perform his pre-injury duties following the incident. He performed light duties at various times after the incident and had periods where he was unable to work. He ceased work completely in late 2018 and has not worked since.
15. Mr Nuuola first consulted his GP, Dr Swapnil Acharekar, regarding his back injury in mid-December 2017. In January 2018, he began physiotherapy treatment and hydrotherapy. He has not been referred to a specialist for treatment of his spinal injury.
16. No imaging of Mr Nuuola's spine was undertaken until December 2025, when an MRI scan was reported to reveal thoracolumbar disc bulges, facet joint arthropathy, and ligamentum flavum hypertrophy with spinal canal and foraminal narrowing causing abutment of the left L5 traversing nerve root at the lateral recess.[1]
17. Mr Nuuola's weight increased after November 2017 due to his relative immobility. By January 2019, his weight was over 200 kilograms.
18. In late 2020, Mr Nuuola developed septicaemia consequent upon cellulitis. He spent two or three months in hospital and was put into an induced coma for a period.
19. By December 2024, his weight was estimated to be 350 kilograms.
20. During 2025, Mr Nuuola was able to reduce his weight with the assistance of Tirzepatide. By April 2025, his weight had reduced sufficiently to enable him to undergo bariatric surgery.
21. As at the date of the hearing, Mr Nuuola's weight was about 180 kilograms. That is, about the same as it had been at the time of the incident.
22. Mr Nuuola was referred to a psychologist, Ms Lubna Atif, in February 2019 for treatment of depression.[2] As his weight increased, and his consequential health issues escalated, Mr Nuuola's psychological condition deteriorated. He attempted suicide in 2024.
23. Currently, Mr Nuuola is prescribed Endone, Sertraline and Diazepam. He also takes Panadol and Nurofen. He hopes to resume physiotherapy treatment. He continues to see Ms Atif.
24. Mr Nuuola lives with his wife, two stepchildren and two children near Melbourne.

What are the permanent impairment consequences of Mr Nuuola's compensable spine injury?

1. Mr Nuuola relied upon three affidavits sworn by him on 16 April 2024, 18 December 2025 and 15 January 2026, and an affidavit sworn by his wife, Laumua Afamasaga-Nuuola, on 18 December 2025.
2. Mr Nuuola deposed to the following impairment consequences:

(a) Constant, variable lower back pain;

(b) Back pain radiates into both legs, worse on the right. He also experiences numbness and tingling in his legs down to his feet;

(c) Bending, squatting, twisting and stooping aggravate his back pain;

(d) Sitting or standing for prolonged periods increases his back pain;

(e) He has difficulties with aspects of showering and dressing;

(f) His sleep is disturbed several times a week;

(g) He has difficulty performing household chores, cooking and gardening;

(h) He avoids driving and has difficulty travelling;

(i) He is unable to play gridiron;

(j) Pain causes him to be irritable and short tempered, which has impacted his relationship with his wife.

1. Mr Nuuola found the process of cross-examination difficult. He often had difficulty understanding the questions asked of him. He became distressed on several occasions. He impressed me as an unsophisticated man who was doing his best to answer questions in a straightforward manner. The VWA did not submit that his evidence was unreliable or lacked credibility.
2. During cross-examination, Mr Nuuola was asked questions about various attendances upon his GP before and after the incident. Mr Nuuola was unable to remember what he did or did not say to his GP at individual appointments but was willing to accept that if his GP recorded a particular matter, it was likely correct.
3. I find that it was understandable that Mr Nuuola could not remember what he did or did not say to his GP at any particular appointment many years ago.
4. It was suggested to Mr Nuuola that the ulcer/wound on his right lower leg in June/July 2017 continued up to the date of the incident and beyond.[3] Mr Nuuola could not recall that being the case. In my view, the clinical records did not provide a sufficient basis for that contention.
5. It was put to Mr Nuuola that on 4 December 2017, he consulted his GP regarding an infected wound and cellulitis that required antibiotics. That is, that he suffered a further episode of cellulitis after the incident but prior to reporting his back injury to his GP. It was put to Mr Nuuola that this episode of cellulitis could not have been caused by or related to any hydrotherapy treatment for his back injury. Mr Nuuola's recollection was that the infection either cleared up and came back after hydrotherapy commenced or was made worse by the hydrotherapy. He was firm in his evidence that he was told that the cellulitis he experienced after early 2018 was because of the hydrotherapy.[4]
6. Mr Nuuola accepted that he likely told Dr Yan Wong, occupational medicine registrar, on 12 December 2017 that his back pain had improved and he experienced mild to moderate pain intermittently on bending his back. Dr Wong examined Mr Nuuola on that date at the request of the employer.
7. Ms Afamasaga-Nuuola deposed that Mr Nuuola was a hardworking and sociable family man prior to suffering his back injury. She recalled her husband telling her he had suffered an injury at work, and noticed that he was in pain and more sedentary because of his back injury. As a result, his weight increased. Although his weight was now similar to what it had been when he suffered his injury, he continues to suffer from back pain. He struggles to sit for long periods and avoids driving. He is unable to help around the house and needs assistance putting on his socks and pants at times. Mr Nuuola's injury has significantly impacted his mental health and caused issues in their relationship.
8. The VWA did not seek leave to cross-examine Ms Afamasaga-Nuuola. I accept her evidence.
9. This is a convenient point to consider the medical evidence tendered by the parties relevant to the spinal injury and claimed consequential weightloss.

1. Ten letters and reports were tendered from Dr Acharekar dated 31 January 2019, 6 February 2019, 12 September 2019, 8 April 2020, 27 January 2023, 17 January 2025, 8 April 2025, 11 December 2025, 18 December 2025 (two). Twenty-four certificates of capacity were tendered. The earliest was dated 15 December 2017, and the most recent, 13 February 2020. In addition, extracts of the clinical records of My Clinic, Tarneit, were tendered.
2. By letter dated 31 January 2019, Dr Acharekar referred Mr Nuoola for consideration for bariatric surgery. He noted he was morbidly obese with a then current weight over 200 kilograms.
3. In September 2019, in a letter addressed "to whom it may concern", Dr Acharekar said, in the context of seeking approval for sessions with a psychologist:[5]

"... [Mr Nuuola] has been off work since last year due to knee injury at work. This resulted in him being inactive and led him to put on more weight. ... ."

4. In his letter dated 17 January 2025, Dr Acharekar relevantly noted:[6]

"... [Mr Nuuola] suffered significant back injury as a result of which he has now got chronic back pain. Following this he has had treatment with physio and pain killers but has not reaped any benefit. He has not been able to mobilise freely as he used [to] and this level of inactivity has resulted in his weight gain. His spiralling weight gain is a result of inactivity following back injury. The back injury and weight gain has also caused significant deterioration in his mental health and has affected his personal life and relations. ... ."

5. Dr Acharekar repeated those opinions in his letter dated 8 April 2025.
6. In his report dated 11 December 2025, Dr Acharekar opined that Mr Nuuola had no capacity for work, and he could not specify his future work capacity.

1. Two reports were tendered from Mr Colliver, dated 31 January 2018 and 8 July 2020.
2. In the first report dated 31 January 2018, Mr Colliver noted that he first saw Mr Nuuola on 12 January 2018 in relation to his lower back pain. His condition was responding well to conservative management. He noted that Mr Nuuola had:[7]

"... developed an infection in his right lower leg which is unrelated to his lower back work injury. Therefore, we have had to put his hydrotherapy and exercise based management on hold until the infection has resolved."

3. In the second report dated 8 July 2020, Mr Colliver noted that Mr Nuuola had recently attended his first hydrotherapy appointment in a period of six months. Inability to participate in hydrotherapy had led to a significant increase in his lower back symptoms.

Dr Iain Johnson, Emergency Department, Werribee Mercy Hospital

1. One letter was tendered from Dr Johnson dated 1 February 2018.[8]
2. Dr Johnson reported that Mr Nuuola attended the Emergency Department of Werribee Mercy Hospital on 31 January 2018 suffering from cellulitis in his right lower leg. His weight was noted to be 194 kilograms.

1. One report was tendered from Dr Wong dated 12 December 2017. Dr Wong examined Mr Nuuola on 12 December 2017 at the request of the employer to assess his fitness for his duties in light of his claimed spine injury.
2. Mr Nuuloa reported to Dr Wong that he injured his back about a month previously while pushing a jammed cage on a rough floor surface. He said his team leader was aware that he suffered a back injury. In the intervening period he had mostly been absent from work due to back pain. He reported having consulted his GP a few times and being prescribed anti-inflammatory medications.
3. As to Mr Nuuola's symptoms and function, Dr Wong reported:[9]

"... his back pain is much improved with only mild to moderate pain intermittently on bending his back. He reported no resting pain and was able to sleep well at night. He denied any leg symptoms. ...

Functionally, he stated that he has been able to perform household duties including washing, cleaning, vacuuming and doing the laundry.

At work, he reported that he was kept on tugger driving since the onset of his back pain a months ago. He reported aggravation of his back pain from this task."

"Mr Nuuola is likely morbidly obese although he had not weigh[ed] himself for a while. He was able to walk normally ... He had tenderness on his mid-back from T6-T12 area. He had full range of movements of his back although with some pain on lateral rotation. ... ."

2. Dr Wong recommended Mr Nuuola have physiotherapy treatment and perform modified duties at work.

1. Two reports were tendered from Dr Gee, dated 8 May 2019 and 15 October 2019. Dr Gee examined Mr Nuuola on 8 May 2019.
2. In his first report dated 8 May 2019, Dr Gee reported receiving the following account of Mr Nuuola's condition over the eighteen months since the incident:[11]

"The worker's condition has fluctuated with mild improvements depending on posturing and movements. He reports seeing his general practitioner, and commencing physiotherapy for his condition. He reports as a consequence of his back pain he has developed depression requiring the need to see a psychologist. He reports psychological symptoms of lower mood and reluctance to move. The worker reports a massive weight gain since his injury ... an (sic) 60kg weight gain in the last one year."

3. Dr Gee noted that no diagnostic imaging had been undertaken because of logistical issues due to Mr Nuuola's weight. He was taking Nurofen and Panadeine Forte.
4. Mr Nuuola reportedly told Dr Gee that his mobility problems were due to his back and his excessive weight. He noted that Mr Nuuola estimated his weight to be approximately 260 kilograms.
5. Dr Gee diagnosed mechanical back pain. He opined that Mr Nuuola was unfit for any suitable employment.
6. In his supplementary report dated 15 October 2019, Dr Gee relevantly opined:[12]

"It is my Medical Opinion that this worker's weight gain is significantly contributing to his current impairment. The worker's weight gain is a result of this worker's claimed injury allegedly sustained on the 14th November, 2017.

This worker had always been overweight and was significantly obese prior to his injury. However from the date of injury he has had a marked and rapid weight gain which can be attributed to his lower back injury. ... I consider this acceleration of his pre-existing obesity as part of this claim due to the immobility he sustained due to his back injury. ... ."

1. One report was tendered from Dr Baynes dated 16 July 2020. Dr Baynes examined Mr Nuuola via Zoom on that day.
2. Dr Baynes noted that Mr Nuuola then weighed 300 kilograms and had difficulty moving. He reported continuous lower back pain radiating into both legs, moreso the right. He experienced pins and needles in his right foot and stiffness in his back. Coughing increased his back pain.
3. Dr Baynes diagnosed a Chronic Pain Syndrome associated with chronic lower back pain and gross obesity which was also likely contributing to his back pain. He opined that the increase in weight was associated with the compensable injury due to the consequent lack of activity. He opined that Mr Nuuola had no capacity for suitable employment.

1. One report was tendered from Mr Moaveni dated 17 September 2025. Mr Moaveni examined Mr Nuuola that day.
2. Mr Moaveni noted that Mr Nuuola reported experiencing constant pain in his lower back, at a level of "seven out of ten" on average, but it could be exacerbated to "ten out of ten."[13] He could also experience altered sensation, mainly in his right lower extremity.
3. On examination, Mr Moaveni noted a restricted range of motion in the lumbar spine, evidence of lumbosacral paravertebral tenderness and muscle spasm. There was no evidence of radiculopathy or myelopathy in the lower extremities. Mr Nuuola was reliant upon a four-wheel walker for mobility.
4. Mr Moaveni's provisional diagnosis was an aggravation of lumbar spondylosis, which could be confirmed with appropriate imaging. He opined that Mr Nuuola was:[14]

"... likely to be precluded or restricted in relation to activities involving bending, lifting, twisting or stooping, pushing, pulling or lifting, repetitive pushing, pulling or lifting, repetitive and prolonged use of the spine, overhead activities, kneeling, squatting or crouching, prolonged sitting, walking or standing, walking up inclines or down declines, and using steps or ladders. The extent of his incapacity is moderate to severe and likely to continue for the foreseeable future."

5. Mr Moaveni opined that Mr Nuuola was incapacitated for any suitable employment for the foreseeable future.
6. As to the connection between the lower back injury and weight gain, Mr Moaveni opined:[15]

"... Mr Nuuola's accepted work-related back injury has materially contributed to his substantial weight gain and development of severe morbid obesity. The injury-related functional limitations, chronic pain, inability to work, and reduced capacity for physical activities directly contributed to his sedentary lifestyle and subsequent weight gain. The additional complications from sepsis and cellulitis further compromised his functional capacity and delayed his rehabilitation efforts. Whilst he had pre-existing obesity, the dramatic weight gain following the injury represents a clear deterioration that is causally related to his accepted work-related condition."

1. Two reports were tendered from Dr Slesenger, dated 21 November 2025 and 22 December 2025. Dr Slesenger examined Mr Nuuola on 20 November 2025.
2. Mr Nuuola reported that he was suffering from severe and constant lower back pain with shooting pain in his right leg. He experienced numbness in his right leg. His pain was aggravated by minimal activity. He reported mobilising with the aid of a four-wheel walker, and more than four days each week, he would spend the day in bed to avoid aggravating his symptoms.
3. On examination, Dr Slesenger noted that Mr Nuuola walked with a pronounced right-sided limp. He was severely tender over the lower lumbar spine and had a very restricted range of motion. There was significantly reduced power in the right lower limb, and some reduction of power in the left lower limb, sensory loss in the right lower limb in a stocking distribution to the level of the knee and dull ankle and knee reflexes bilaterally.
4. Dr Slesenger diagnosed a lumbar spine soft-tissue injury, aggravation of degenerative disease and chronic lower back pain with radiating features. He opined that Mr Nuuola was unlikely to be able to work in any suitable employment on a consistent and reliable basis. He was in a deconditioned state.
5. As to the link between the lower back injury and weight gain, Dr Slesenger opined:[16]

"I am satisfied that based on the evidence presented, Mr Nuuola's weight gain and obesity has been materially contributed to by the index injury and associated inactivity. ... ."

6. Dr Slesenger did not re-examine Mr Nuuola for the purpose of his supplementary report dated 22 December 2025. He was provided with various extracts of clinical records. Having reviewed the records, Dr Slesenger opined that they supported the history given to him.

1. One report was tendered from Professor Bittar dated 20 December 2025. Professor Bittar examined Mr Nuuola that day.
2. Professor Bittar noted that Mr Nuuola complained of constant thoracolumbar pain, with an average severity of "6/10" and a maximum of "9/10".[17] He reported a walking tolerance of 10 minutes, a sitting tolerance of 30 minutes, and a 5-minute standing tolerance. Mr Nuuola said that his pain worsened if he lifted anything more than a light object. His pain was relieved by lying down, frequent postural changes, heat packs and medications. Mr Nuuola also reported suffering from intermittent bilateral leg pain, worse on the right, and intermittent numbness in both legs through to his feet, worse on the right.
3. Professor Bittar noted the past medical history of intermittent lower back pain, and morbid obesity.
4. On examination, Professor Bittar noted severe restriction of lumbar spine extension and flexion, and moderate restriction of thoracic spine rotation to each side. There was tenderness throughout the entire lumbar region, extending to the lower thoracic spine. He could not palpate any muscle spasm. Neurological examination did not reveal radiculopathy or myelopathy.
5. Professor Bittar diagnosed an aggravation of lumbar spondylosis, significant weight gain, and recurrent cellulitis. He opined:[18]

"... [H]is work-related injury on 14/11/2017 remains a significant contributing factor to his ongoing lower back condition and its sequelae, including his significant weight gain."

6. Professor Bittar was of the view that Mr Nuuola should be reviewed by a pain specialist. His prognosis was poor. He opined that Mr Nuuola was totally incapacitated for suitable employment.

1. One report was tendered from Dr McCallum dated 23 December 2025. Dr McCallum examined Mr Nuuola via Telehealth that day.
2. Dr McCallum noted the following history:[19]

"Mr Nuuola's weight increased significantly post-injury, from 170-180 kg in 2017 to over 350 kg by November 2024. He was practically bed-bound for several years. This inactivity and weight gain were complicated by recurrent cellulitis of his right leg, attributed to hydrotherapy sessions. In late 2019/early 2020, he developed sepsis from cellulitis, requiring hospitalisation and an induced coma for approximately six to seven weeks, during which a tracheotomy was performed. He underwent bariatric surgery (gastric sleeve) in April 2025 and has since lost a significant amount of weight, down to approximately 200 kg."

3. Dr McCallum noted that Mr Nuuola reported suffering constant, severe pain in his lower back, aggravated by standing for more than 5 to 10 minutes, bending, squatting, twisting or stooping. He also reported pain radiating down the back of both legs to his feet, and a constant feeling of numbness in his feet. He reported suffering from recurrent cellulitis of his right calf and ankle.
4. Dr McCallum diagnosed an aggravation of lumbar spondylosis, a Chronic Pain Syndrome with features of central sensitisation, and bilateral leg pain which could be neuropathic. He noted the weight gain after the incident and commented that this was extremely common in patients with lower back pain. He was of the view that the weight gain was directly related to the back pain and associated inactivity.
5. Dr McCallum opined that the prognosis was very poor. Mr Nuuola's life had been profoundly impacted.
6. Dr McCallum opined that Mr Nuuola was unfit to work for the foreseeable future, and the extent of his limitations was extremely marked.

1. Three reports were tendered from Dr Menz, dated 19 July 2024, 16 December 2025 and 6 January 2026. Dr Menz's first report was written 'on the papers'. He examined Mr Nuuola for the purpose of providing his second report.
2. In his first report, Dr Menz said that he strongly suspected Mr Nuuola had degeneration of his lumbar spine "due to the fact he has been morbidly obese for many years".[20]
3. Dr Menz opined that the incident appeared to be minor, and "possibly caused a minor soft tissue injury which should have resolved within three to six months".[21]
4. Dr Menz also offered the following opinion:[22]

"In the absence of employment between October 2011 and November 2017, considering this man's morbid obesity, he would have had a degenerative spine anyway and he would have had symptoms associated with it. > > ... > > ... His back pain in particular appears to be a minor problem compared with all the issues he has with his morbid obesity. > > I am unaware that this man has a significant spinal problem now and certainly has barely been mentioned since about 2018. > > ... > > If he does have ongoing spinal issues, then these would be solely related to his super morbid obesity."

5. Dr Menz stated that if Mr Nuuola had been of normal weight, with a BMI less than 30, his compensable injury would have resolved in three to six months.[23]
6. Dr Menz was asked to opine as to the likelihood of Mr Nuuola ceasing work as a storeman by the ages of forty, fifty-five and sixty-five, even if he had not performed the work with the employer. He said:[24]

"Considering his pre-existing condition which is solely morbid obesity and his current comorbidities, I believe there is a 100% chance he would have ceased work as a storeman by the age of 40 and obviously by the age of 55 and 65."

7. As I have said, Dr Menz examined Mr Nuuola prior to writing his second report.
8. Mr Nuuola reported that his lower back pain was the same, or possibly worse. He rated it at "8/10". Dr Menz said it was not possible to conduct a clinical examination "because of this man's morbid obesity, his poorly functioning range of movement and incapacity as well."[25]
9. Dr Menz opined:[26]

"... the sole reason this man has back pain and has had it for nearly eight years is because his obesity has caused the degeneration of his spine and this is a clinically proven pathology. With the degeneration of his spine, it became painful and this is the source of his ongoing pain to this day. > > ... > > In isolation I believe the minor incident of 14.11.2017 has resolved and as such he could return to pre-injury duties. ... ."

10. Dr Menz was subsequently provided with the report of the MRI scan performed on 16 December 2025, and asked to further comment.
11. Dr Menz said that the results of the MRI scan supported and re-affirmed the opinions he had previously given regarding the degeneration in Mr Nuuola's spine.

1. Four reports were tendered from Dr Drnda, dated 28 January 2025, 1 December 2025, 11 December 2025 and 23 December 2025. Dr Drnda's first and second reports were written 'on the papers'. He examined Mr Nuuola on 11 December 2025. He did not re-examine him for the purpose of his final supplementary report.
2. In his first report dated 28 January 2025, Dr Drnda noted that prior to the incident, Mr Nuuola had occasional low back pain and stiffness. He opined that given his pre-existing morbid obesity, his lumbar spine was likely to have significant degenerative disc disease. Dr Drnda said that failing to address the morbid obesity would result in the continued progression of lumbar spondylosis, "potentially leading to more complex complications".[27]
3. As to the impact of the incident, Dr Drnda opined:[28]

"The incident ... likely caused some muscular strain. Given the morbid obesity and likely pre-existing lumbar spondylosis, Mr Nuuola's paraspinal muscles were always vulnerable to potential physical strain. In my opinion, the incident caused strain of the muscles, which then likely settled over the ensuing weeks, as he reported improvement. In my opinion his recurrent issues became related to his morbid obesity and his inability to walk due to his leg cellulitis. Additionally, due to his cellulitis and ulcers, he was not able to utilise hydrotherapy in his treatment, which would be the most beneficial treatment for a morbidly obese person. ... ."

4. I note that Dr Drnda somewhat qualified his opinion regarding the impact of the incident later in his report when he opined:[29]

"... the work-related incident caused a relatively minor and temporary problem of low back pain related to muscular strain, which was self-limiting, if the presence of morbid obesity is excluded. ... ."

1. Dr Drnda further opined that absent the incident, Mr Nuuola's lumbar spine would very likely have become symptomatic:[30]

"... Even innocent strains like getting off the chair, sneezing or coughing could have triggered his spinal problems. With time spinal issues would become more complex."

2. Dr Drnda said that Mr Nuuola's inability to walk and his ongoing low back pain are "entirely related to morbid obesity".[31]
3. Dr Drnda was asked as to the percentage likelihood that Mr Nuuola would have ceased all work by the age of forty absent working for the employer, given his pre-existing conditions. By way of "educated guess", Dr Drnda opined that Mr Nuuola would "definitely (100%)" have ceased work due to "any of the possible complications of morbid obesity".[32]
4. Dr Drnda was subsequently provided with some further material, and asked whether it changed his opinion. In his report dated 1 December 2025, he opined:[33]

"The reporting of the work-related injury was not convincing. Mr Nuuola did not initially inform his GP, and no imaging was arranged, which would have been appropriate for a significant injury. No pain medication was prescribed at the time; the first prescription (naproxen 500 mg BD PRN) was issued on 27 January 2018, with subsequent prescriptions on 8 May 2018 and 29 January 2019, when Panadeine Forte was prescribed for the first time. The ongoing prescription of simple medications was inconsistent with severe low back pain and was also for other painful conditions, such as knee pain, likely related to his increasing morbid obesity."

5. As I have said, Dr Drnda examined Mr Nuuola on 11 December 2025 for the purpose of this third report.
6. Mr Nuuola told Dr Drnda that at the time of his low back injury, he did not have any issues with his right leg. Dr Drnda observed that this contradicted the medical records. Mr Nuuola reported that his low back pain had been "7-8/10" from the time of the injury, and remained so.[34]
7. On examination, Dr Drnda opined that Waddell's signs of non-organic illness behaviour were readily present. He did not explain the particular findings which supported that observation.
8. Dr Drnda did not alter his previously expressed opinions after examining Mr Nuuola. He maintained his view that the work-related back injury resolved within four to five weeks. He said:[35]

"... Mr Nuuola did not provide any additional information that would clarify or change the understanding of his injury. Furthermore, several of his statements were inconsistent with the documented medical evidence, and he frequently had difficulty recalling the sequence of events."

9. Dr Drnda subsequently viewed the MRI scan of Mr Nuuola's lumbar spine taken on 16 December 2025. He opined that the scan revealed pronounced facet joint arthropathy, and a degenerative joint condition. He said the degenerative disc disease was mild. He said the MRI scan findings did not cause him to alter his previously expressed opinions.

Professor Tony Korman, infectious diseases physician and medical microbiologist

1. One report was tendered from Professor Korman dated 13 January 2025. Professor Korman provided his report 'on the papers'.
2. Professor Korman was provided with various documents, including the clinical records of Mr Nuuola's GP. He was asked to opine as to "the likely condition of the worker's cellulitis prior to the claimed incident". Profesor Korman noted only that Mr Nuuola was treated for right thigh cellulitis at Ipswich Hospital in 2008. I pause to note that this was in contrast to the puttage to Mr Nuuola regarding having cellulitis in mid 2017 and ongoing, referred to earlier in these reasons.
3. Professor Korman opined that obesity was a risk factor for cellulitis, and previous episodes of cellulitis are risk factors for future episodes of cellulitis. Further, obesity tends to increase with age, and the risk of cellulitis also increases with age.
4. Professor Korman opined:[36]

"There is no evidence to suggest that Mr Nuuola's employment in general, and in particular the back injury sustained on 14 November 2017, materially contributed to the development of cellulitis."

5. Professor Korman agreed with the opinion of Mr Colliver, physiotherapist, that the right lower limb infection Mr Nuuola had in January 2018 was unrelated to his lower back injury.
6. Professor Korman noted that Mr Nuuola was managed for further episodes of cellulitis in 2018, 2019, 2020, 2021 and 2022. He also noted that Mr Nuuola suffered from lipodermatosclerosis, a chronic inflammatory disorder of the legs, which is often mistaken for conditions such as cellulitis. He said lipodermatosclerosis can also be complicated by superimposed cellulitis.
7. Professor Korman was of the view that Mr Nuuola would likely have developed further episodes of right leg cellulitis in the absence of any issues related to his employment.

1. This is an aggravation injury as Mr Nuuola had pre-existing degenerative change in his lumbar spine. It was intermittently symptomatic prior to the incident, although the prior episodes of lower back pain were short-lived.
2. It is long-established that in a case involving a pre-existing condition, a comparison is to be made of the impairment immediately before the incident with the impairment thereafter. Where the pre-existing condition is degenerative, this comparison may involve determining the difference between the progression which would likely have occurred had the incident not happened, with the progression that in fact occurred.[37]
3. As was observed in Seckold v Transport Accident Commission:[38]

"... It applies whether or not the pre-existing condition was symptomatic (as in Petkovski) or asymptomatic (as in the present case). It is the nature and extent of the impairment resulting from the injury sustained in the accident that must be identified by the applicant. Of course, the extent of any necessary analysis of such an impairment (particularly in the case of an asymptomatic pre-existing condition) will depend upon the whole of the evidence adduced in the case, including the medical evidence directed to the effects (if any) of the injury upon the underlying degenerative condition and a consequential impairment."

"... [W]here the injury was an aggravation of a pre-existing condition, and where there had been very little by way of any symptoms requiring medical treatment for a significant period of time following the accident, it was incumbent upon the applicant to establish the difference between the progression which would likely have occurred had the accident not happened, and the progression which has in fact occurred as a result of the aggravation caused by the accident. Notwithstanding the need for the applicant to undertake this exercise, the applicant adduced no evidence which sought to deal with this issue. Specifically, there was no evidence as to the extent of the aggravation, or the likely duration of the effects of the aggravation. These were matters of evidence which the applicant was required to address as part of his case in endeavouring to establish that the consequences of the injury caused by the accident were serious."

5. I bear in mind that this is a gateway proceeding. As was observed by the Court of Appeal in Findlay v Transport Accident Commission:[40]

"As has been said before, a serious injury application is a 'gateway' proceeding, usually conducted with no oral evidence other than that of the plaintiff. The result of the application does not give rise to any liability to pay damages. Nor does it create any relevant issue estoppel. This Court has previously held that a plaintiff in a serious injury application must prove causation. However, the question, whether the evidence tendered in such a gateway application is sufficient for that purpose, needs to be considered in light of the limited purpose for which the question is being asked, and in light of the more limited scope of the evidence adduced on that issue than that which might be adduced in a full trial."

6. Senior Counsel for the VWA submitted that the evidence supported the view that Mr Nuuola experienced a simple soft tissue injury in the incident and good symptomatic improvement within a very short space of time. It was submitted that Mr Nuuola's immobility due to cellulitis was the real cause of his dramatic weight gain. The cellulitis was a pre-existing problem prone to recurrence, and was unrelated to the lower back injury or hydrotherapy. It was submitted that Mr Nuuola did not report the injury to his GP until 15 December 2017, which supported a conclusion that not much was being made about the incident at the time. Further, no imaging was requested. Mr Nuuola's habitus is not a satisfactory explanation for that absence, given that he was able to have an MRI scan in December 2025 whilst weighing 180 kilograms. It was also submitted that Mr Nuuola was not prescribed analgesia for his lower back injury until 2023.
7. Senior Counsel for the VWA submitted that in an entry dated 4 December 2017, Dr Acharekar noted Mr Nuuola had cellulitis of his right lower limb. Dr Acharekar noted that the wound needed dressing and a prescription for antibiotics.[41] On 11 December 2017, Dr Acharekar noted the wound was healing well, but advised Mr Nuuola to continue taking antibiotics for a further week.
8. I approach the clinical notes of Mr Nuuola's GP with some caution. They are not a verbatim account of any particular attendance. Whilst Mr Nuuola was willing to accept that what was recorded was likely correct, he had no memory of any particular attendances.
9. The clinical notes of Dr Acharekar, the letters from Mr Colliver, and the report of Dr Wong in the period December 2017/January 2018, support the proposition that Mr Nuuola complained of a back injury, was attending physiotherapy, and was diligently following the prescribed exercise program. His symptoms improved but were continuing. He was keen to resume work but was only intermittently able to undertake light duties.
10. Mr Nuuola's account of the incident and his lower back symptoms accords with the contemporaneous account given to Dr Wong on 12 December 2017 regarding the circumstances of the injury, course of symptoms and Mr Nuuola's work between 14 November 2017 and 12 December 2017. This reinforces a finding that it was back pain, not cellulitis, which was inhibiting Mr Nuuola's ability to work at this time.
11. The episodes of cellulitis from which Mr Nuuola suffered following the incident restricted his ability to participate in hydrotherapy. That is, he was unable to pursue a treatment option that was expected to be beneficial for his back injury.
12. In late February 2018, Mr Nuuola was admitted to hospital for four to five days to treat cellulitis in his right leg. Mr Colliver recommended he recommence hydrotherapy once he had the all clear from his GP. I find the hydrotherapy was to treat his lower back condition, which was continuing.
13. I accept Mr Nuuola's evidence as to his experience of back pain since the incident. That is, that he has experienced ongoing lower back pain of variable severity since November 2017.
14. Notwithstanding his lower back pain, Mr Nuuola attempted to work on modified duties and reduced hours at times after the incident, ultimately ceasing work in late 2018. He has not worked in any capacity since.
15. I accept Mr Nuuola's evidence that his relative immobility after November 2017 was primarily due to his lower back injury and symptoms.
16. The certificates of capacity from December 2017 onwards also provide contemporaneous evidence of an incapacity for pre-injury employment due to the lower back injury sustained on 14 November 2017.
17. I find that what followed during 2018 was that Mr Nuuola's immobility and inability to perform his pre-injury duties led to an increase in his weight. Within twelve months, his weight was more than 200 kilograms. By May 2019, he weighed about 260 kilograms. With the increasing weight, there was greater immobility, and other significant health issues. He was caught in a spiral of increasing incapacity, increasing weight, and even greater incapacity.
18. I find that when Mr Nuuola was suffering from an episode of cellulitis, he often experienced pain and stiffness in one or both legs and had further difficulties with his mobility. This was in addition to the continuing back pain which was reducing his mobility.
19. Mr Nuuola's weight reached its peak of 350 kilograms in late 2024. He was gravely ill, but too large for bariatric surgery. Fortunately, with the assistance of Tirzepatide and subsequent bariatric surgery, Mr Nuuola is back to a weight which is similar to his weight at the time of the incident. That is, there is no consequential weight gain at the present time.
20. Senior Counsel for Mr Nuuola relied upon the VWA's payment of weekly payments and payment of an impairment benefit as admissions by the VWA of ongoing incapacity due to the compensable injury. Senior Counsel for the VWA submitted that the notice of termination of weekly payments was based on the reports of Dr Menz and Dr Drnda casting doubt upon the connection between the compensable injury and incapacity. Consequently, little or no weight should be placed upon the payment of weekly payments and an impairment benefit.
21. My findings are based on a consideration of the whole of the evidence, and I place limited reliance on the payment of statutory benefits.
22. I prefer the opinions of Dr Acharekar, Mr Colliver, Dr Wong, Dr Gee, Dr Baynes, Mr Moaveni, Dr Slesenger, Professor Bittar and Dr McCallum that Mr Nuuola suffered an aggravation of lumbar spondylosis in the incident and continues to suffer from that aggravation injury. Further, his weight gain was a consequence of the relative immobility caused by his lumbar spine aggravation injury.
23. I do not accept the opinion of Dr Menz that Mr Nuuola suffered a minor soft-tissue injury which resolved within three to six months. As stated, I find that the aggravation injury did not resolve, and Mr Nuuola's symptoms have continued. Dr Menz's opinion that Mr Nuuola would have had symptoms due to his degenerative spine in any event is insufficiently explained, likewise his opinion regarding work capacity absent the compensable injury.
24. I do not accept the opinion of Dr Drnda. I note that Dr Drnda discounted Mr Nuuola's account of his lower back symptoms following the incident, stating they were contradicted by the clinical records. It is not the role of a medico-legal neurosurgeon to make that determination.
25. Further, Dr Drnda opined that if Mr Nuuola had not been morbidly obese at the time of the incident, he would have recovered within a matter of weeks. There are a number of problems with that opinion. First, and fundamentally, Mr Nuuola was morbidly obese at the time and the employer takes the plaintiff as it finds him. Second, the opinion is not sufficiently explained.
26. Similar difficulties attend Dr Drnda's opinion regarding the progression of Mr Nuuola's degenerative disease in his lumbar spine absent the incident. Dr Drnda does not sufficiently explain the basis for his opinion that Mr Nuuola's lumbar spine condition would have become consistently symptomatic even absent the incident.
27. Prior to the incident, Mr Nuuola had experienced an episode of cellulitis in 2008. I accept Professor Korman's opinion in this regard. In particular, as I have already noted, Professor Korman did not opine that Mr Nuuola was experiencing an episode of cellulitis in the months leading up to, and at the time of the incident.
28. I accept Professor Korman's opinion that Mr Nuuola also suffers from lipodermatosclerosis, which is often mistaken for cellulitis.
29. Notwithstanding Mr Nuuola's belief to the contrary, Senior Counsel for Mr Nuuola did not submit that the episodes of cellulitis in late 2017 and 2018 were caused by Mr Nuuola's attendance at hydrotherapy.
30. In brief compass, I am satisfied that the current impairment consequences of the lumbar spine injury suffered by Mr Nuuola in the incident are:

(a) He suffers from constant back and leg pain of varying severity;

(b) He has very significantly reduced functional tolerances;

(c) He has difficulties completing his personal care;

(d) His sleep is regularly disturbed;

(e) He is very limited in the performance of household chores.

1. In the course of the hearing, I asked Senior Counsel for the VWA what the VWA's position was in the event that I determined the principal issue of the connection between the injury to the spine and the weight gain in Mr Nuuola's favour.[42] The VWA's final position was that it would make no submissions that the injury was not a serious injury for pain and suffering and loss of earning capacity.

Is Mr Nuuola permanently unable to earn at least 60 per cent of his "without injury" earnings because of the impairment consequences of the compensable spine injury?

1. Having determined the principal issue in Mr Nuuola's favour, in my view, the medical and other evidence overwhelmingly supports a finding that Mr Nuuola is permanently incapacitated for any suitable employment by reason of his compensable aggravation injury.
2. I find that Mr Nuuola is permanently incapacitated from undertaking any suitable employment. He is therefore unable to earn at least 60 per cent of his "without injury" earnings because of the impairment consequences of the compensable spine injury.

Is the loss of earning capacity consequence of Mr Nuuola's compensable spine injury "serious"?

1. Mr Nuuola's permanent incapacity for any suitable employment is a serious loss of earning capacity consequence for this young man.

1. Mr Nuuola is granted leave to seek loss of earning capacity damages in respect of the spine injury he sustained in the incident. Such leave also entitles him to claim pain and suffering damages.
2. Given that Mr Nuuola is granted leave with respect to this lumbar spine injury, it is unnecessary to consider his application for leave in respect of his consequential psychiatric injury.
3. I will hear the parties on the issue of costs.

[1] Plaintiff's Further Amended Court Book ("PCB") 31

[8] Defendant's Court Book ("DCB") 66-67

[37] Petkovski v Galletti [1994] VicRp 32; [1994] 1 VR 436

[38] [2025] VSCA 18 ("Seckold") at paragraph [58]

[40] [2025] VSCA 126 at paragraph [61] (footnote omitted)