Popa v Victorian WorkCover Authority [2025] VCC 1311

1. Mr Popa was aged 33 at the date of the incident, having been born in Romania, and arrived in Australia aged two. He completed Year 12 at Copperfield College, and following school, qualified as a carpenter, working for various carpenters and in the floorboard industry for some years.
2. Mr Popa then had a change in career to the trucking and logistics industry, attaining his Heavy Vehicle Combination Licence. He bought his own truck and worked as a courier driver and for various fuel companies, and Pronto Concrete, all as a truck driver, in various roles requiring physical manual duties which he enjoyed.
3. Mr Popa commenced work with PremiAir Fuels in July of 2021, and his ordinary working hours were 35 hours a week, Monday to Friday. With weekly overtime he would work up to 50 or 60 hours a week.
4. On 24 January 2022, he was doing his usual job driving around and filling up fuel at different businesses and locations around Melbourne. He was at Donburn Customs in Kilsyth, filling up a diesel generator. With his right hand on the fuel nozzle, he lost his footing and when he put his left hand up to steady himself, his hand struck a fan on the equipment. There was no guarding or cover over the fan blades. The generator was located in a small dark shed at the premises. He was wearing safety boots and safety gloves at the time.
5. The circumstances of the injury are not in dispute in this application.
6. An ambulance conveyed him to Box Hill Hospital, and the following day, an operation was performed at Knox Private Hospital by plastic and reconstructive surgeon, Mr Snehal Shah, assisted by Dr G Kratochvil. The procedure performed was debridement of the wound and repair of the first dorsal interosseous of the left hand.
7. Mr Popa had three months off work before returning on restricted and light duties, and he dutifully completed hand therapy at Melbourne Hand Rehabilitation from 17 February 2022 until 8 July 2022, at which time he was certified as fit to return to full-time duties.
8. His job involved attending lots of different premises and filling up tanks with fuel on heavy machinery, and all manner of other equipment, including excavators and bulldozers. He enjoyed the role, which involved climbing onto the machines. He had a lot of friends and enjoyed the variation in the work.
9. I accept his evidence that he experienced left hand pain at work at PremiAir Fuels, and so took a position at Speedy Fuels, where he worked from early 2023 until July 2025. He changed jobs because he could not do the climbing and scrambling around on machinery and equipment anymore due to his left hand injury. The role at Speedy Fuels involved filling up petrol tanks, and did not require any climbing, as it was all performed at ground level. If not for his injury, Mr Popa said he would prefer a job with more variation and interest for him.
10. Another reason he was not able to complete his former duties is they involved dragging hoses around, which is not possible anymore for him because of his left hand injury.
11. I accept Mr Popa's evidence that he:

(a) continues to experience left hand pain, even in the more restricted role at Speedy Fuels;

(b) resigned from this role in July 2025, because of his hand pain; and

(c) misses his previous employment.

1. During the period of Mr Popa's employment with Speedy Fuels between 2023 and 2025, he had limited treatment, but I accept his evidence - which is supported by his general practitioner, and also both medico-legal specialists engaged by the solicitors for the plaintiff and defendant - that there is nothing more that could be done for his left hand condition. He coped with his duties using over-the-counter medications, and self-management as directed by his hand therapist, including use of heat packs. In his words, "that was enough ... until it wasn't".
2. It is not in dispute that he suffered a traumatic laceration type injury to his left hand between the left thumb and index finger through the dorsal interosseous musculature, leaving scarring in the web space in two fragments: one of 5 centimetres and one of 2 centimetres. The injury has resulted in ongoing pain and reduced grip strength, and other loss of function in his left hand.
3. The medical reports available to the Court included that of plastic and hand surgeon, Dr Murray Stapleton, who provided two reports, dated 8 July 2025 and 20 August 2025. Mr Stapleton accepted the plaintiff suffers from ongoing pain consistent with his injury, and records restrictions as follows:

"All activities requiring his left hand have, to varying degrees, been affected. Pushing, pulling, lifting squeezing, twisting, overhead activities, manual dexterity and fine manipulative movements are all now a problem because any activity with his left hand brings with it an aggravation of his underlying pain.

... more and more, however, he has to favour his right (dominant) hand."[1]

1. Likewise, plastic surgeon, Mr Damon Thomas, accepted the plaintiff's history of ongoing pain, and identified post-traumatic issues with respect to pain, reduced strength, reduced range of motion, functional loss, as well as cold intolerance. In Mr Thomas' opinion, Mr Popa's occupation is affected, and he has reduced capacity for anything physical. He has had to transition from his original role, which was heavy work from a manual or repetitive point of view, and remains in the fuel delivery business on a permanent modified light duties basis. Mr Thomas identified physical, functional and intrinsic restrictions, altered sensation to the left hand and affected left hand functioning.[2]

1. The relevant legal principles are not in dispute.
2. Mr Popa bears the onus of demonstrating that his impairment is permanent and the consequences are serious. In order to demonstrate his injury is serious, he must establish the consequences to him, with respect to pain and suffering, when judged by comparison with other cases, in the range of possible impairments or losses of a body function, are fairly described as being "more than significant or marked, and as being at least very considerable", in accordance with the narrative test set out in s325(2)(a), (b) and (c) of the Act.
3. Whilst impairment is concerned with what has been lost, the significance of what has been lost may be informed to an extent by what is retained. Although this is a claim for pain and suffering, the effect on the plaintiff's work is a relevant consideration.
4. Maxwell P, in Haden Engineering Pty Ltd v McKinnon,[3] stated_:_

"As to capacity for work, it is necessary to identify whether and to what extent the plaintiff is prevented by the pain from performing the duties of his/her previous employment. The fact that the plaintiff has been able to return to full-time employment does not preclude an affirmative finding of serious injury. It is simply one of the matters to be taken into account. What matters in this regard is the extent to which 'an area of work which [the plaintiff] enjoyed has been closed off to ]him or her]'."

1. Likewise, in Ellis Management Services Pty Ltd v Taylor,[4] the Court of Appeal stated that:

"... The inability of a worker to engage in employment which he or she enjoyed is a matter that may properly be taken into account in assessing pain and suffering and loss of enjoyment of life. Similarly, frustration at being unable to engage in former activities (work or leisure) may be a matter properly to be taken into account in assessing pain and suffering consequences.

... loss of the ability to engage in particular forms of employment may be relevant to the issue of pain and suffering consequences in the following ways:

(a) First, pain may in fact be experienced at work or while performing particular types of work.

(b) Secondly, the inability to perform certain work may be indicative of what injury has in fact been sustained by the worker.

(c) Thirdly, a worker might suffer a loss of enjoyment of life in being unable to perform work which he or she used to enjoy. Under this heading there may also be pain and suffering consequences in respect of any frustration of a worker at being unable to perform activity that he or she used to be able to perform."

1. Of course, the credit of the applicant is of great importance_._[5]
2. In considering Mr Popa's evidence, I have also had regard to the authorities in dealing with credit on an occasion of this type, to the effect that the Court must analyse and give appropriate weight to all the evidence, including objective evidence. And further, that an adverse finding concerning credibility is not by itself sufficient to justify the refusal of the serious injury application.[6]

1. Mr Popa deposed to a previous great love of riding his Kawasaki Ninja 650cc motorbike. He would regularly ride it with a group of three close friends, but often numerous other people would come riding as well, including in the Yarra Valley, and up to Kinglake and similar places. He goes on to state:

"I tried riding after the injury improved but I just could not do it. I got increase in pain and some cramping after using my left hand on the clutch the whole time."[7]

1. Mr Popa's affidavit evidence included he sold his motorbike because he was not able to use the clutch continuously with his left hand. He explained the function of a motorbike, which involved depressing the clutch with his left hand to change gears, and his increase in pain when attempting this. Further, that his reduced grip strength made this very difficult. He misses being able to ride with his friends and having a bike.
2. It emerged during cross-examination that aspects of this evidence were incorrect. He sold his motorbike on 26 March 2022, a couple of months after the incident, and he conceded at that time, he had not returned to motorbike riding at all. And further, that he sold his bike, in part, for financial reasons. I found his lack of explanation for these discrepancies somewhat unsatisfactory.
3. Nevertheless, there is objective evidence consistent with Mr Popa's evidence that he is no longer able to ride motorbikes, and I refer to the evidence of the medico-legal doctors set out above. His evidence that he could no longer ride a motorbike is also corroborated by his wife, Richelle Tuazon, in her affidavit sworn 19 August 2025.
4. I was also urged to accept a submission that Mr Popa attended his general practitioner after a gap of a couple of years, in February 2025, only to assist his case. I reject this submission.
5. On 19 February 2025, Mr Popa was prescribed Lyrica by his usual general practitioner, in the context of ongoing care that had been provided by Dr Hiran Fernando. Mr Popa's explanation for his attendance on his general practitioner was because his pain had spiked, and that work had taken its toll on his left hand.
6. Mr Popa denied that he had attended his general practitioner only for this purpose and, accordingly, I find that the submission is based on a somewhat speculative proposition that this was so. I am fortified in my views about this because the general practitioner accepted Mr Popa's history and prescribed him Lyrica.[8]
7. Overall, Mr Popa impressed me as a young person who gave forthright evidence. He consistently made appropriate concessions, and there was nothing to suggest to me he was exaggerating his symptoms, or that any of his evidence or conduct was afflicted with any form of guile. There was no suggestion in the medical reports of any question as to his credit.
8. I was fortunate in this case, even if I had some concerns - and I do have some concerns about his evidence about the timing of the sale of his motorbike, and the circumstances - but on the critical question of Mr Popa's level of pain, his ongoing pain and restrictions in function, the medical evidence is all one way.
9. His wife was also not required for cross-examination. Accordingly, I may accept her evidence, which corroborates Mr Popa's account of his ongoing pain and restrictions.
10. Much of Mr Popa's evidence in his two affidavits of 22 November 2024 and 13 August 2025 went unchallenged.
11. Although a significant attack was mounted on his credit, I believe it is fair to say that the principal submission of the defendant related to the question of range, and in this case, that issue is quite finely balanced.

1. I find that all of the doctors consider Mr Popa's injury is permanent. The test to be applied is whether the injury will persist, and that there will be no significant improvement over time. There is no further surgery indicated, and his ongoing management, including prescription and over-the-counter medications with other conservative treatment, including heat packs, is appropriate, and he will continue to experience pain and loss of function.

1. The circumstances of the injury are not in dispute, including that it required surgical repair, three months off work, and a lot of prescription pain medication.
2. Mr Popa completed hand therapy to get as much movement and feeling back as possible. He was under the care of his local general practitioner. He was placed on a number of different heavy painkillers for a period of time, and gradually weaned himself off most medication. He was shown exercises to do, and did these exercises regularly, and has regained substantial movement in his left hand. But he has not retained all function, and he experiences ongoing symptoms and limitations.
3. He continues to have pain on a daily basis. Although it is not present when his hand is at rest, it progresses to a deep pain in the hand from a milder ache upon use, and it also is reactive to temperature. The more serious deep pain is after use, and is more consistent and worse on cold mornings in winter. He continues to take Nurofen when required. Several days a fortnight, over a day or two, he takes two tablets, three or four times a day. He does not like taking medication, and only does so after he has done something that has increased the pain in his hand over time. More recently, since February 2025, following an increase in his pain at work, he is taking a strong prescription medication, Lyrica, on a fortnightly basis.
4. Although his treatment on an ongoing basis is limited - occasional attendance at his general practitioner - he needs medication to control his pain. I accept his evidence he does not like taking strong prescription pain medication, and has limited his intake over time. I accept that he suffers daily pain, reduced strength and loss of function which has affected things like his fine motor skills. His daily pain was accepted by Mr Stapleton as being from 3 to 4 out of 10, using the pain scale, up to 7 or 8 out of 10 on the pain scale.
5. The injury has had a significant effect on his working life. Although this was conceded by the defendant, it was submitted that this effect was not "more than considerable".
6. In my view, the effect on his working life could be described as "very considerable".
7. Mr Thomas, Mr Stapleton and Dr Fernando all agree that Mr Popa is incapacitated for his previous employment as a bulk fuel delivery driver. He no longer has capacity to work as a carpenter. Even though he has no plans to return to this employment, this is an indicator of very considerable ongoing impairment as a result of his workplace injury. Mr Popa has had to change jobs to find less demanding, but less satisfying, work involving minimal, or very restricted, use of his left hand.
8. Although the timing of the sale of his motorbike was not as stated in his affidavit material, I do accept Mr Popa's evidence that he has made a judgement he will not be able to return to motorbike riding due to pain and reduced strength, which affects his ability to operate the clutch with his left hand, and more generally because of safety concerns in handling a heavy bike as a result of his injury.
9. His wife corroborated this evidence.
10. I accept Mr Popa's evidence that notwithstanding his improvement, he still would have difficulties riding,[9] and he has not returned to it.
11. Mr Popa did concede he would be able to perhaps ride an electric, automatic bike. That was not an option he had considered prior to being cross-examined, and there is no evidence that he will do so in the future. He has not ridden for several years now, and feels this loss deeply.
12. I find this incapacity is a significant consequence, and a theoretical return to riding on electric bikes in the future is not enough to alter the fact of his incapacity to engage in his previous hobby and pastime of motorbike riding. Nor it is not enough to alter the outcome of the application, when all of the consequences are considered in combination.
13. On the one hand, his general practitioner and Mr Popa himself concede that his pain is mild a lot of time, and manageable, and he also accepts he can still do most things with modifications, and with only, perhaps, relatively limited medication required to control his pain.
14. On the other hand, both Mr Thomas and Mr Stapleton accept Mr Popa suffers from significant ongoing pain and loss of function.
15. I do not consider his pain-related sleep disturbance to be very significant, due to his pre-existing issues. Nevertheless, I do accept pain in his left hand does wake him at times, and again, his wife's affidavit corroborates this evidence.
16. Again, although the effect on his activities of daily living is not very significant, it is still significant. His ongoing impairment affects any task involving his non-dominant hand, and is a constant reminder of his injury and loss of function.
17. To his credit, he has returned to work full time, up to 60 hours in various roles. I am not prepared to hold that against him. I accept that for a young man, although he still enjoys his work as a truck driver, the loss of flexibility and capacity has restricted him from doing more physical work in fuel delivery which he previously enjoyed. This is significant. He has had to change jobs, and recently also cease employment.
18. In the context of a finely balanced application, I find Mr Popa's relative youth has increased the seriousness of the consequences of his injury. Even if no one consequence might be said to be "at least very considerable", the fact that he will endure them in combination for many decades to come has tipped the application in his favour.
19. On the evidence as a whole, I am satisfied that the combination of surgical intervention, ongoing pain whenever he uses his left hand, the interference with his work, and to a more than limited extent, his domestic and recreational activity, and more particularly his age, is such that the pain and suffering consequences to Mr Popa of his injury are "at least very considerable".
20. I grant leave to the plaintiff to commence proceedings for damages in respect of injuries suffered in the course of his employment on 24 January 2022, and I will hear the parties as to final orders and costs.

[3] [2010] VSCA 69; (2010) 31 VR 1 at paragraph [15]

[4] [2013] VSCA 326 at paragraphs [35] and [44]

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

[6] Cakir v Arnott's Biscuits Pty Ltd [ 2007] VSCA 104

[7] Plaintiff's first affidavit affirmed 12 September 2024, paragraph [17]: PCB 15

[9] For example his second affidavit sworn 13 August 2025, at paragraph [9]