Pecora v Victorian WorkCover Authority [2025] VCC 413

(a) suffers from an ongoing injury to his low back; and

(b) no longer has capacity to perform his pre-injury duties as a machine operator.

1. The VWA dispute that the consequences of his injury are "serious" within the meaning of the narrative test.

1. Mr Pecora bears the onus of demonstrating his impairment is permanent and the consequences are serious. He must establish the consequences to him, with respect to pain and suffering and loss of earnings, when judged by comparison with other cases in the range of possible impairments or losses of a body function, are fairly described as "being at least very considerable" and certainly more than "significant or marked" in accordance with the narrative test set out in ss325(2)(a), (b) and (c) of the Act.
2. The seriousness of an impairment is determined by whether the consequences, "when judged by comparison with other cases in the range of possible impairments or losses, [can] be fairly described at least as 'very considerable' and certainly more than 'significant' or 'marked'".[4]
3. That assessment is informed by what is lost, but the significance of what has been lost may be informed to an extent by what is retained.[5]
4. In order to be granted leave to commence proceedings for damages for economic loss, a worker must also satisfy the requirements of ss325(2)(e), (f) and (g) of the Act in relation to his loss of earning capacity.
5. The measure of the claimed loss of earning capacity requires a comparison of two matters:

(a) the gross income the plaintiff is earning or is capable of earning in suitable employment at the date of the hearing ("after injury" earnings); and

(b) the gross income that the plaintiff was earning or was capable of earning during that part of the period three years before and three years after the injury as most fairly reflects the worker's earning capacity had the injury not occurred ("without injury" earnings).

1. It is common ground that pursuant to ss325(2)(e) of the Act, Mr Pecora must establish:

(a) he has a loss of earning capacity of 40 per cent or more as at the date of the hearing;

(b) he will, after the date of the hearing, continue permanently to have a loss of earning capacity which will be productive of financial loss of 40 per cent or more.

1. I must consider whether Mr Pecora has any realistic capacity to return to full-time employment which might otherwise be suitable, having regard to his age, education, skills, work experience or other matters.[6]
2. In serious injury applications, the credit of the applicant is of great importance.[7] The reliability of Mr Pecora's evidence was in issue.

1. Mr Pecora was born in Australia in 1966.
2. He completed Year 11 at school, is married and has no children.
3. Upon leaving school, Mr Pecora worked various physical jobs including:

(a) construction labourer with various companies from 1985 to 1995;

(b) courier driver with Fast Way Couriers from 1995 to 1997 and The Fashion Movers from 2009 to 2013;

(c) owner driver with V & G Detergents from 1997 to 2000 and Chenelle Cleaning Products from 2000 to 2004;

(d) commercial cleaner with various companies from 1998 to 2004;

(e) products and services with Surfcoast Cleaning Supplies Pty Ltd in 2004;

(f) trades assistant with Cox Coating from 2004 to 2009, Alton Personnel Pty Ltd from 2014 to 2015 and Tricab Australia from 2015 to 2017;

(g) trades assistant and site maintenance with Able Industries Engineering and Westgate Hi-Tech Machinery from 2004 to 2009 and site maintenance with these two employers from 2009 to 2019; and

(h) traffic controller with Daly's Traffic Pty Ltd from 2013 to 2014.[8]

1. Mr Pecora has a longstanding non-work-related depressive condition.[9] Mr Pecora was subjected to abuse as a child and suffered trauma from this. He has taken Ablify and Lexapro for this condition for many years.[10]
2. In 2018, Mr Pecora commenced working with the employer as a full-time machine operator. His work duties included frequent and repetitive heavy lifting including lifting 25 kilogram bags of bleach, and 44-gallon drums.

1. On 19 March 2020, Mr Pecora was lifting a 44-gallon drum when he felt pain in his lower back. He completed an incident report.
2. A few days later, the employer sent Mr Pecora to see Dr Zoran Ilic, general practitioner, of Altona North Medical Centre. He was referred for physiotherapy treatment at Hobsons Bay Physiotherapy and asked to take annual leave.
3. On 6 April 2020, Mr Pecora completed and submitted a Worker's Injury Claim Form for his low back injury. He received weekly payments until they were terminated in October 2022.
4. On 24 April 2020, the employer terminated Mr Pecora's employment, citing unsatisfactory work performance, first raised with Mr Pecora on 3 March 2020.
5. In August 2020, Mr Pecora commenced consulting with general practitioner, Dr Fayaz Wani, for his low back injury. Dr Wani referred him for a CT scan of his lumbar spine. The CT scan conducted on 6 June 2022 confirmed:[11]

"At L4/5, there is a mild broad based disc bulge, which extends into the subarticular recesses bilaterally and contacts both traversing L5 nerve roots.

At L5/S1, central disc protrusion noted. No canal, foraminal, or subarticular recess stenosis."

1. In August 2022, Mr Pecora was referred to orthopaedic surgeon, Mr John Cunningham.[12] Mr Cunningham did not recommend surgery[13] and advised Mr Pecora to continue with conservative treatment[14] inclusive of physiotherapy and gym-based strengthening exercise.[15]
2. On 27 September 2022, Mr Pecora had an MRI scan of his lumbar spine which showed: "Multilevel disc degeneration without focal disc protrusion or significant central canal stenosis."[16]
3. There is no ongoing complaint consistent with sciatic pain.
4. After the MRI scan in September 2022, Dr Wani, reported that Mr Pecora had a diagnosis of low back pain with bilateral foraminal stenosis at L2-3 and L5-S1, without neural compression.[17] Dr Wani further recommended strengthening exercises for his back should continue.
5. Mr Pecora was assisted by return-to-work specialist, Nabenet, until his weekly payments were terminated in October 2022. Since then, he has applied unsuccessfully for several jobs, including as a meter reader, forklift driver, nursery hand, cleaner, trades assistant, workshop assistant and graffiti remover.[18]
6. He gave up applying for work in mid 2023, when he claims his back condition flared up and he was sleeping poorly because of his low back pain. His evidence included that his back pain has not improved at all since then.[19]
7. He has received physiotherapy treatment at Hobsons Bay Physiotherapy since shortly after the incident, up to twice a week. Mr Pecora continues to attend physiotherapy fortnightly[20] and Dr Wani once every two months.[21]
8. Mr Pecora's treatment has included over-the-counter Voltaren, although the rate and extent of reliance upon pain medication is disputed. His affidavit evidence includes he takes Voltaren twice a day, uses ice packs and heat packs frequently, and Deep Heat or Voltaren cream twice a day.[22] This evidence is not consistent with his history to Dr Wani that he only takes painkillers as needed during a flare up.[23]
9. His condition has remained fairly static over time, save he claims to have developed some left posterior thigh pain in early 2024, which he attributes to walking on uneven surfaces.[24]

1. Although I accept Mr Pecora has certain functional restrictions, the restrictions present at the time of Mr Graeme Doig's medico-legal assessment in August 2024 appeared "excessive relative to the underlying pathology", despite Mr Pecora presenting "in a forthright manner". Ultimately, I agree with both of these observations.
2. I did not ever form the impression that Mr Pecora was doing anything other than attempting to give an honest account of his present and historical circumstances. This impression was consistent with other comments through the medical reports. Nevertheless, I was not convinced he was an entirely reliable witness, and in this regard, the VWA raised a number of concerns in relation to his credit.
3. Counsel for the defendant, Mr McKenzie, cross-examined Mr Pecora carefully on inconsistencies in his accounts of his tolerances. In histories to Dr Horsley, occupational physician, and Professor Bittar, consultant neurosurgeon, Mr Pecora reported that he could sit for an hour, drive for an hour and stand for an hour.[25] However, during cross-examination, his evidence was he could only sit for half-an-hour, drive for half-an-hour to 45 minutes and stand for half-an-hour.[26] The surveillance material recorded Mr Pecora sitting in his car in a car park for 40 minutes in August 2024.
4. Mr Pecora was prepared to assert to Dr Horsley in November 2024 that he had literacy issues. This history stands in stark contrast to the presentation of Mr Pecora in the witness box, supported by the surveillance footage of him reading a newspaper in his car for an extended period of time. It is not mentioned in either of his affidavits, which he had no difficulty reading and swearing. His oral evidence in cross-examination ultimately was he had no literacy issues as such, but has a problem with concentration which affects his reading.[27] This is consistent with his history to rehabilitation consultant, Lynne McClaren, that his concentration is "affected when symptoms exacerbated".[28]
5. He also gave the following history to Recovre:

"Mr Pecora confirmed that English is his primary language and that he does not have any issues in relation to reading or writing. ... ."[29]

1. Nabenet, in its 2022 report, noted his English reading and writing was at an average level.[30]
2. His oral evidence in court was to the effect that he struggles to walk, let alone run. Surveillance footage taken over several days and at different times[31] depicts Mr Pecora walking around normally, briskly, without any sign of restriction; and on 8 September 2024 even jogging back to his car.
3. I find Mr Pecora provided a history to his doctor that he uses over-the-counter Voltaren only intermittently for back pain. Mr Pecora, however, suggested in his most recent affidavit, "I take Voltaren twice a day for my back pain". I reject that evidence. Given his tendency to exaggerate, I prefer the account he gave to his longstanding general practitioner. Dr Horsley also recorded a history of intermittent over-the-counter use of Voltaren for back pain. Although Mr Pecora denied giving this history, I accept that this is the most likely position.
4. In a case such as this, it is unfortunate that Mr Pecora, who bears the burden of proof, did not rely upon any evidence of his wife (who was present in court during the trial) or other person who could confirm his level of function.
5. Without the benefit of any corroborating account of the consequences of his low back condition, I find that Mr Pecora exaggerated some of his evidence.

1. As noted above, in about mid 2023, Mr Pecora states that he had a flare-up of pain which did not settle, and because of this has not applied for any work since.
2. This claimed increase in symptoms is not supported by any contemporaneous history to his treating doctor or physiotherapist. Mr Pecora has seen Mr Jed Ritchens, physiotherapist, up to twice a week (currently fortnightly) since shortly after the March 2020 incident. It is unlikely Mr Pecora would have failed to report such a significant flare-up to Mr Ritchens if it had occurred.
3. I reject Mr Pecora's evidence that:

(a) he had a flare-up of pain in 2023 which did not settle;

(b) a flare-up of pain in 2023 is the reason he has not applied for any work since.

What is Mr Pecora's capacity for suitable employment?

1. The fact that Mr Pecora has been unsuccessful in obtaining job interviews is not relevant to his physical capacity to undertake "suitable employment" within the meaning of the Act, which is determined under ss325(2)(g) of the Act.
2. In March 2022, Mr Pecora gave a history to occupational physician, Dr Philip Mutton, in these terms:

"... He has applied for a number of jobs the last of which was two months ago. He has been unsuccessful. He believes he has capacity for full-time light work."[32]

1. Although in cross-examination, Mr Pecora denied giving this history, he agreed Dr Mutton recorded every other aspect of his history correctly. I find Mr Pecora himself believed he had a capacity for full-time work in March 2022.

1. In Dr Wani's opinion, in December 2022, Mr Pecora was "able to do modified duties where he cannot lift more than 10 kilos from ground and 15 kilos from wrist to waist".[33]
2. Mr Pecora's longstanding physiotherapist, Mr Ritchens, reported on 24 January 2023 that Mr Pecora could work under restrictions of modified duties which would include no lifting greater than 10 to 15 kilograms; no prolonged sitting or standing; and having the ability to interchange between the two positions, and could, accordingly, return to work in a restricted capacity. In his opinion, Mr Pecora would continue to benefit from physiotherapy twice weekly and a gym membership so he could continue self-management strategies, as prescribed by a physiotherapist, and noted that the condition continued to improve with physiotherapy and self-management strategies.[34]
3. Based on the treating practitioners' evidence, as at late 2022/early 2023, Mr Pecora retained an unexercised capacity to perform suitable duties on a full-time basis.
4. Mr Pecora confirmed in cross-examination that in early 2023:

(a) he was applying for work in various positions involving light manual duties;

(b) considered he had capacity to perform those roles;

(c) was prepared to undertake the roles, at the least on a trial basis, and see how he went.

1. To the extent of any inconsistency, I prefer the evidence of his longstanding treating general practitioner and physiotherapist at the time, of his level of capacity, and his history to Dr Mutton (referred to at paragraph 50).
2. Mr Ritchens, as at 20 January 2025, remained of the view that Mr Pecora was able to work with restricted capacity, noting he may in fact return to a greater capacity with less restrictions in the future; however, "this will be dependent on clinical outcomes which would be monitored following an initial undertaking of work with restricted capacity".[35]
3. Mr Ritchens' current view appears to be that, subject to the restrictions set out in his first report, Mr Pecora has capacity to work full time.
4. In his report dated 25 February 2025,[36] Dr Wani, without any explanation as to his change of opinion, states: "Based on the current state of Vincent he is not in a position to work at all", although no specialist opinion or treatment was indicated. It is difficult to give this opinion much weight because it is not based on any new investigation or history to him or any other practitioner, and is not otherwise supported by any reasoning or my finding that Mr Pecora did not experience a permanent flare-up of symptoms in 2023.

1. Consultant orthopaedic surgeon, Dr Graeme Doig, examined Mr Pecora at the request of the VWA's solicitors in August 2024. Dr Doig noted Mr Pecora walked comfortably into his consulting rooms in no distress and with no evidence of a limp. This observation was consistent with observations I made of the plaintiff in 47 minutes of surveillance footage over a number of days in 2024 and 2025.[37]
2. Dr Doig diagnosed aggravation of degenerative change and ongoing, functional restrictions which appeared "excessive relative to the underlying pathology". He noted that Mr Pecora is not using any strong analgesics to control his discomfort. He recorded that Mr Pecora presented in a forthright manner and the Waddell's signs were negative.
3. Dr Doig considered the vocational assessment report compiled by Recovre dated 17 April 2024, which identified employment positions of packer, product grader, product assembler and pathology courier. In his view:

"All of these positions appear much less, physically demanding than Mr Pecora's previous job and on paper, should not exceed the musculoskeletal restrictions pertaining to his back."[38]

1. Dr Doig recommended Mr Pecora not push, pull or lift any more than 10 to 15 kilograms, limit bending and twisting through the spine, and take regular breaks from prolonged sitting and driving.
2. In his opinion, the driving position may be appropriate, provided long distance trips were not required, and further:

"With an ergonomic set up, sympathetic employer and the ability to sit and stand as required, the first three positions would be suitable as long as the previously listed restrictions are not exceeded. [Positions of packer, product grader and product assembler]."[39]

1. In view of the period of time out of the workforce, Dr Doig recommended restricted hours initially due to deconditioning, perhaps four hours per day, three days per week, with alternate days off to recover and upgrading as tolerated.[40]
2. In other words, Dr Doig, as at August 2024, considered Mr Pecora had a residual capacity to work 12 hours per week on alternate days, with capacity to upgrade "as tolerated" having regard to deconditioning.
3. Consultant neurosurgeon, Professor Richard Bittar, examined Mr Pecora at the request of the plaintiff's solicitors and prepared a report dated 29 November 2024.[41] On the basis of the history provided to him, with only mild lumbar spine flexion and extension restriction upon examination, and no abnormal illness behaviour, Professor Bittar diagnosed aggravation of lumbar spondylosis. In his opinion, employment was a significant contributing factor.
4. Professor Bittar recommended a repeat MRI scan of the lumbar spine and, if neural compression is demonstrated, consideration for surgery. Otherwise, Mr Pecora should continue with his conservative current treatment regime.
5. Professor Bittar was of the view that Mr Pecora was totally incapacitated for work as a result of his lumbar spine condition, which precluded him from employment or activities involving:

1. b. Kneeling, squatting or crouching
2. c. pushing, pulling or lifting
3. d. driving/steering of a motor vehicle/truck
4. e. above shoulder & overhead movements
5. f. heavy lifting
6. g. repetitive lifting
7. h. prolonged sitting, walking or standing
8. i. walking up inclines or down declines
9. j. using steps or ladders
10. k. any other physical functions or motions."[42]

1. Taking into account his incapacity, education, placement skills and work experience, Professor Bittar considered Mr Pecora did not have the capacity to perform any suitable employment.
2. In the opinion of Associate Professor Anthony Buzzard, consultant general surgeon, Mr Pecora has a "light work back", which would preclude him from some activities, but he would be capable of suitable employment.[43]
3. The Court of Appeal in Giankos v SPC Ardmona Operations Ltd[44] has warned against over-reliance upon surgeons for opinions in relation to work capacity, which expertise is within the province of occupational physicians.

What is the evidence of the occupational physicians as to capacity?

1. The Court had the benefit of two reports from occupational physicians: one relied upon by each party.
2. The plaintiff relied upon Dr Horsley's report dated 6 November 2024.[45]
3. I also accept that Mr Pecora gave a history to Dr Horsley of his significant literacy issues. On this basis, he would not be suitable for any role which involved a significant administrative component.
4. Dr Horsley's assessment of functional tolerances of walking, dynamic standing and static standing of 30 minutes were understated compared with Mr Pecora's history to other doctors, and his affidavit evidence (one-hour tolerance). He has retained a sitting and driving tolerance of at least one hour.
5. Dr Horsley noted that Mr Pecora did very little with his time. Surveillance showed a person somewhat more active than this history to Dr Horsley, although this material was not provided to Dr Horsley for comment. Based on the surveillance material, I do not accept his history to Dr Horsley that he "spends his time moving from bed to couch and couch to bed"[46] as it does not reflect his actual capacity.
6. While Dr Horsley recorded that Mr Pecora's gait was slow, this was not supported by the surveillance footage either, which depicted a man walking unhindered, with no obvious sign of restriction or pain, and in fact included him jogging a short distance back to his car after collecting his winnings from the TAB at the Epping RSL.
7. Dr Horsley ultimately was of the view that Mr Pecora presents with ongoing mechanical back pain with referred left leg pain. He had developed a "chronic pain problem" and is quite deconditioned. Critically:

"Mr Pecora is disadvantaged. He is a vulnerable individual having experienced significant childhood trauma. He has significant literacy issues. He relies upon his wife for assistance with literacy. He has no computer skills at all. His opportunities for redeployment are really in the manual arena. His back condition significantly limits his options."[47]

1. Dr Horsley said she believed the following work restrictions "would be prudent" when considering Mr Pecora's back condition alone:

• • Avoidance of repetitive pushing and pulling;
• • Avoidance of truncal rotation;
• • Avoidance of static postures involving the lumbar spine, particularly static forward flexion;
• • Avoidance of repetitive bending and lifting;
• • Avoidance of lifting items greater than 10 to 12kg except on an occasional basis;
• • Avoidance of lifting items up to 10kg on a repetitive basis."[48]

1. Dr Horsley recommended a referral to a pain management specialist and involvement in a pain management program with a focus on functional restoration, which Mr Pecora did not pursue.
2. Dr Horsley's opinion is that Mr Pecora has a theoretical capacity for suitable duties within the vicinity of 15 to 20 hours per week, but overall, has no capacity. Dr Horsley ultimately expressed her view in this way -

"... at 58 years of age, with his significant literacy issues and lack of computer skills, and now four years out of the workforce, with his current physical restrictions related to his back, [he] would find it very difficult to compete in an open marketplace. ... ."[49]

"In theory, within the restrictions as outlined above, Mr Pecora probably does have a theoretical capacity for suitable duties within the vicinity of 15 to 20 hours per week. However, the reality is that he presents poorly. He is 58 years of age. He has been out of the workforce for four years. He has only ever worked in manual work. He has poor literacy skills. He has no computer skills. His qualifications, which include a Forklift Licence, and a Traffic Management Certificate (both of which have expired), lend themselves to jobs that are beyond his physical capacity. Realistically, at 58 years of age, with his current presentation and level of disadvantage, I believe that he has come to the end of his working life. His transferable skills are unlikely to [be] marketable in an open and competitive market place. He is not a realistic retraining candidate."[50]

1. The incorrect histories provided by Mr Pecora are relevant both to his capacity, and to his credit. They affect the weight of Dr Horsley's opinion considerably.
2. I reject her opinion insofar as it relies on Mr Pecora's illiteracy. Mr Pecora's literacy levels are not a significant barrier to re-entry into the workforce.
3. I find Mr Pecora's failure to exercise his residual capacity for work is the reason for him being out of work for so long, so I reject Dr Horsley's opinion that he has come to the end of his working life on this basis.
4. In contrast, Mr Pecora saw occupational physician, Dr Philip Mutton, at the request of the VWA on two occasions, in March 2022 and later, in May 2024.
5. In Dr Mutton's opinion, Mr Pecora has a capacity for full-time light work notwithstanding his diagnosis of chronic low back pain on account of disc degeneration.
6. In his report dated 15 May 2024, Dr Mutton opined that:

"4. Mr Pecora has capacity to undertake a range of light to moderate activities. He is reliant on Voltaren only to control his pain. He has pain intermittently without pain-free days. He was motivated to look for light work but has since stopped due to failure to be successful in his job applications. It is most unlikely that he could perform his preinjury duties, which appeared to be quite heavy and physically demanding. moving empty 44-gallon drums in addition to forklift work.

1. I have noted the documentation from Recovre dated 17/04/2024. I have noted the suitable employment options as selected packer roles, selected product grader roles, selected product assembler roles and pathology courier. I have noted in particular the description of packer, product examiner, product tester/assembler and pathology courier and their inherent physical demands. Mr Pecora should have capacity to undertake this work. He should be able to undertake the sitting activities, the standing activities and the walking activities. There is no heavy lifting with most items being lightweight.

The physical demands are within his capacity. There is sitting and standing and rotation. Lifting and pushing is up to 5kgs.

The physical demands are within his capacity. He can sit and stand and freely interchange. There is limited walking. Maximum lift is 4kg.

He is capable of the critical work demands with option to sit and stand. Lifting is restricted to less than 5kg.

I think there will be issues here given his reported lack of tolerance for driving and only driving short intervals. The physical demands would be within his capacity but repetitive driving and entry and exit of the vehicle would be a barrier.

1. The worker should have capacity for work. This is based on the level of pain relief that is required and the known pathology. It is likely he suffers from a degree of chronic low back pain. It should be able to be managed to the extent that he would be able to undertake light to moderate work on a regular basis. I expect that he would be able to undertake light to moderate work on a full-time basis."[51]
2. I accept the evidence of Dr Mutton in relation to Mr Pecora's retained capacity for work and as to the suitability of the particular roles identified in the return-to-work consultant reports because:

(a) Dr Horsley does not address these at all;

(b) Mr Pecora's longstanding physiotherapist - who has seen him on a fortnightly basis for nearly five years - considers Mr Pecora to have capacity for full-time light work. I place significant weight on Mr Ritchen's opinion.

1. Mr Pecora has not sufficiently disentangled any psychological consequences of his "chronic pain" condition in his application under paragraph (a) of the definition of "serious injury".[52]
2. Professors Bittar and Buzzard, Dr Horsley, Dr Doig and Dr Mutton all acknowledge a physical injury to the lumbar spine (and the VWA conceded as much), but:

(a) Professor Buzzard, on 21 November 2003, considered there was a "chronic pain problem";[53]

(b) Dr Horsley also considers he has developed a "chronic pain problem";[54] and

(c) Dr Doig noted his psychiatric condition.[55]

1. The onus falls on Mr Pecora to disentangle any psychological consequences in a paragraph (a) application, however the evidence does not establish whether this "chronic pain problem" is physically or psychologically based.
2. This poses another difficulty for Mr Pecora's application, particularly where his symptoms are not readily explained by radiology or other findings on examination, but rather the subjective reports of pain and functional limitations from the plaintiff.

1. I accept Mr Pecora has limited computer skills, and given his work background, purely administrative or sedentary work roles are not suitable for him.
2. The agreed "without injury" earnings figure is $1,504.50.[56] I accept Mr Pecora would need to work at or close to full-time hours as a packer, product grader or product assembler in order for him to exceed the 60 per cent threshold of $902.00 gross per week.
3. Based on:

(a) the medical opinion of Dr Mutton on the proposed forms of suitable employment set out in the Recovre Vocational Assessment Report dated 17 April 2024;

(b) Dr Wani's 2022 report;

(c) Mr Pecora's condition largely remaining static after March 2022; and

(d) Mr Ritchens' two reports,

I find that Mr Pecora has capacity to engage in full-time suitable employment in any one of the roles set out above.

1. The application is refused in relation to loss of earnings.

1. Mr Pecora swore two affidavits in support of his application, setting out the claimed consequences of his low back injury.
2. He claims to suffer from constant low back pain with intermittent referred pain and cramps in his left leg. I accept he has intermittent pain on a daily basis.[57] I find that as at March 2022, he had minimal symptoms and (in accordance with the opinion of Dr Mutton) could self-manage at home using a home exercise program. When Dr Mutton examined him in May 2024, Mr Pecora confirmed that apart from the recent left leg pain, his lower back pain remained similar.
3. He requires over-the-counter Voltaren on an intermittent basis to control his pain.
4. Mr Pecora does not suffer from significant symptoms consistent with radiculopathy, and that is consistent with the MRI findings.
5. As at August 2024 when he was examined by Dr Doig, Mr Pecora was able to undertake light, domestic tasks wearing a back support and knee pads, and continued to enjoy walking to keep fit.[58] I find he is still able to perform light domestic tasks, although his gardening is compromised. I accept he is reliant to an extent on his wife for assistance with some activities of daily living requiring low back bending.
6. He is an avid numismatist, and makes no complaint of no longer being able to enjoy this hobby.
7. Mr Pecora claims his sex life is practically non-existent due to his back injury. This evidence has to be assessed in light of the fact he made no complaints to any doctor about this, and there is no corroborative evidence from his wife. I am entirely dependent on his evidence about this issue, which of itself is not overwhelming as to the impact of intermittent (not constant) pain on intimacy. Given the mechanical nature of his lumbar spine injury, I do accept intimacy is likely to be impacted to some extent, which is significant.
8. Prior to his injury, he used to go to the gym four or five times a week. He says he is no longer able to attend a gym. I have some doubt about this evidence, at least in the context of twice weekly physiotherapy at times and his compliance with a home-based exercise routine.
9. Mr Pecora says he can no longer go on bike rides which he used to enjoy. If this is so, it is also significant.
10. Although Mr Pecora says his sleep is poor and he is woken up by his back pain every few hours, he has not requested any prescription medication to address his pain or sleep problems, which is a more reliable indicator of their extent.
11. I accept prolonged sitting, standing and walking aggravate his back pain. These consequences are consistent with his employment restrictions.
12. He also claims any bending, twisting and lifting also aggravate his pain. This would be significant, if his account is not exaggerated. On multiple occasions in the surveillance, Mr Pecora is seen bending, at times deeply, into his vehicle. Surveillance also shows him handling a 15-kilogram vacuum cleaner, and on 7 January 2025, bending over and beating a vacuum bag with some force. In each sequence, he is apparently able to straighten his spine and walk away without any suggestion of discomfort. I give limited weight to this claimed consequence, but accept that heavy tasks are likely to aggravate his symptoms.
13. I accept his incapacity for pre-injury duties is significant.
14. I accept the VWA's submission that by reason of his present financial situation of owning a home without debt, and sufficient savings by virtue of an inheritance his wife received, Mr Pecora may have little motivation to return to work.
15. Overall, I consider Mr Pecora's pain and suffering consequences are not more than "very considerable". He has intermittent pain, some daily, but I do not accept the extent of that pain to be as significant as reported by Mr Pecora.
16. In my view, what he does about his pain is a more reliable indicator than what he says. Mr Pecora:

(a) takes only over-the-counter Voltaren, and then only sometimes;[59]

(b) has required only conservative treatment;

(c) takes no prescription pain, anti-inflammatories or sleep medication;

(d) has not seen any treating specialists since Dr Cunningham in 2022;

(e) has not required any injections for pain relief, and

(f) has declined to follow up on recommendations of Dr Horsley and Professor Bittar for pain management treatment which might alleviate any significant symptoms, or even have his lower back investigated by further MRI scan as suggested to him by Professor Bittar, which in my view is inconsistent with him having a significant back problem.

1. Leave to commence common law proceedings for pain and suffering and loss of earnings damages is refused.
2. I will hear the parties on the form of the final order, and costs.

[1] CT scan dated 6 June 2022 of the lumbar spine, Plaintiff's Court Book ("PCB") 37

[4] Humphries and Anor v Poljak [1992] VicRp 58; [1992] 2 VR 129 at 140

[5] Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 at paragraph [27]

[6] Richter v Driscoll [2016] VSCA 142; (2016) 51 VR 95 at paragraphs [74]-[97]; Harris v DJD Earthmoving Pty Ltd [2016] VSCA 188

[7] Johns v Oaktech Pty Ltd [2020] VSCA 10

[8] Plaintiff's current résumé, DDCB 70-77; affidavit of the plaintiff sworn 31 January 2024, paragraph [6]

[9] Transcript ("T") 12; affidavit of the plaintiff sworn 31 January 2024, paragraph [5]

[11] CT scan dated 6 June 2022 of the lumbar spine, Plaintiff's Court Book ("PCB") 37

[17] Report dated 20 December 2022, PCB 39

[18] Affidavit of the plaintiff sworn 31 January 2024, paragraph [27]

[19] Affidavit of the plaintiff sworn 31 January 2024, paragraph [28]

[22] Affidavit of the plaintiff sworn 30 January 2025, paragraph [7]

[23] Report of Dr Fayaz Wani dated 25 February 2025, PCB 46-47

[25] PCB 52; Report of Professor Richard Bittar dated 29 November 2024, PCB 57-58

[43] Report dated 21 November 2023, DCB 81

[44] [2011] VSCA 121; (2011) 34 VR 120 at paragraph [96]

[56] Defendant's Statement of Calculations dated 3 March 2025; plaintiff's Employment Separation Certificate (DCB 56-57); and bundle of Nu-Mega Ingredients PAYG payment information to April 2020, Exhibit 10

[57] History to Dr Mutton on 23 March 2022, DCB 5

[58] History to Dr Doig, August 2024, DCB 21