Projevski v Coles Group Supply Chain Pty Ltd [2025] VCC 314

(a) Do the jobs identified by the defendant constitute "suitable employment"?

(b) Is the plaintiff permanently unable to earn at least 60 per cent of his "without injury" earnings in suitable employment because of the permanent impairment consequences of his compensable spinal injury?

(c) Are the loss of earning capacity consequences of the plaintiff's compensable spinal injury "serious"?

1. For the reasons that follow, Mr Projevski is granted leave to seek loss of earning capacity damages for his compensable spinal injury.

1. The following, I believe, are uncontroversial matters. As far as any were contested, these represent my findings unless otherwise stated.
2. The plaintiff is aged thirty-three and was born in Macedonia. He is a married man with a four-and-a-half-year-old son.
3. The plaintiff completed tertiary education in Macedonia and completed a Bachelor of Science in Electrical Engineering and Information Technology, majoring in Power Engineering and Management.[1] He graduated in 2016. The plaintiff struggled with studies and it took him seven years to complete the electrical engineering degree.
4. The plaintiff was not formally employed in Macedonia but undertook volunteer work at an electricity plant.
5. The plaintiff's degree in electrical engineering did not lead to paid employment in Macedonia or Australia.
6. The plaintiff married in Macedonia in 2017. He migrated permanently to Australia in 2018 when aged twenty-seven.
7. In Australia he worked as a manual labourer.
8. In about November 2019, the plaintiff commenced work as a picker-packer with the defendant through an employment agency called Labour Power. He became a direct employee of the defendant in May 2020.
9. The plaintiff worked as a full-time picker-packer on a permanent casual basis at the defendant's distribution centre located at Truganina.
10. He ceased work in November 2020.

What are the permanent impairment consequences of the plaintiff's spinal injury?

1. The plaintiff tendered three affidavits sworn by him in support of his application, dated 17 January 2024, 19 December 2024 and 11 February 2025.[2] He was cross-examined.
2. The plaintiff claimed that he has suffered from the following impairment consequences:
   • Pain - He had ongoing pain in his lower back which fluctuated between 5/10-8/10 in severity. He said that the pain would be 8/10 on most days. He had steadily worsening constant right leg pain. If he stood for long periods of time his right leg could go numb and be painful. The right leg pain could reach 8/10 in severity.
   • Medication - at the time of swearing his first Affidavit, the plaintiff said he was taking two tablets per day of Indomethacin,[3] and Lyrica[4] three or four times per week. He would occasionally take Panadol.[5] He had ceased taking Lexapro[6] and Norgesic[7] due to side effects of drowsiness and reflux.[8] In his second affidavit, sworn on 19 December 2024, the plaintiff had increased his medication use and took between four to six tablets of Indomethacin per day and Lyrica twice per day.
   • Relationship with son - He was unable to undertake activities with his son such as bicycle riding or playing soccer. He was restricted going on excursions with his son. He was unable to assist bathing his son.
   • Social activities - He avoided social activities.
   • Self-care - He had difficulty putting on his socks and cutting toenails.
   • Employment - He had not returned to work. He had attended English classes to improve his English language skills. Between July 2022 and July 2023, whilst IPAR was involved in his case, he applied for 200 jobs through Seek. He applied for full-time jobs that he was not qualified for, or which were beyond his physical capacity. He had one unsuccessful interview. He did not think he had the capacity to work because of constant low back pain and right leg pain.
   • Treatment - the plaintiff was undertaking a self-managed exercise program and continued to attend the Main Road Medical Centre for GP services.
   • General restrictions - he had difficulties with bending, twisting, lifting, and with any activities involving pushing or pulling. He had difficulties walking, sitting and standing for extended periods of time. Prior to injury, he was able to perform basic servicing and maintenance of his cars but was no longer able to because of the bending and manoeuvring required.

1. The plaintiff tendered an Affidavit of his wife, Simona Projevska, sworn on 15 January 2025.[9]
2. Mrs Projevska met the plaintiff in Macedonia in 2004. They married in 2017.
3. Mrs Projevska said that the plaintiff's English skills were poor when they arrived in Australia and that they had only marginally improved since they had been in Australia, whilst her English skills had improved over time. She said that they spoke Macedonian at home because of the plaintiff's limited English skills.
4. Mrs Projevska is currently employed as an information officer.
5. She deposed to her observations of the plaintiff being in pain in his lower back and right leg. She said that the plaintiff was significantly impeded in caring for their son.
6. Her evidence was generally supportive of the impairment consequences described by the plaintiff. She was not cross-examined. I accept her evidence.

1. The plaintiff tendered the reports of five MRI scans and a report of a CT-guided right L5-S1 epidural steroid injection.
2. The first MRI scan was performed on 14 December 2020.[10] The scan was reported to show "[v]ery minimal right paracentral disc herniation at L5-S1 causing minimal indentation of the right descending S1 nerve root".[11]
3. The plaintiff had a CT-guided right L5-S1 epidural steroid injection on 21 January 2021.[12]
4. The second MRI scan was performed on 6 March 2021 and was reported to reveal a small right paracentral disc protrusion L5-S1. The protrusion was reported to contact and mildly displace the traversing right S1 nerve root in the spinal canal.[13]
5. The third MRI scan was performed on 22 December 2021. The radiologist compared this scan with the first MRI scan. It was considered that there had been some progression of L5-S1 central/right-sided disc prolapse with impingement of the right descending S1 nerve root.[14]
6. The fourth MRI scan was performed on 15 June 2022. The radiologist reported that the MRI scan showed no change since the first MRI scan.[15]
7. The fifth MRI scan was performed on 1 October 2024. It was reported to reveal a small disc protrusion at L5/S1 with a right paracentral annulus tear abutting the right S1 nerve root sheath which may be irritating the right S1 nerve.[16]

1. The plaintiff tendered material from Dr Syed Imran, General Practitioner ("GP"), two neurosurgeons, Dr Hazen Akil and Mr Patrick Lo, and a rehabilitation physician, Dr Damien Daniel.

1. The plaintiff tendered a series of letters and reports of Dr Imran of the Main Road Medical Centre dated 13 July 2023, 20 October 2023, 4 December 2023 and 29 September 2024, together with a Work Capacity Checklist dated 4 September 2023.[17]
2. In a letter dated 29 September 2024, Dr Imran's diagnosis was right sciatica in the context of a mild right paracentral disc herniation at L5-S1.
3. In October 2023, Dr Imran considered that the plaintiff was fit for modified duties.
4. Dr Imran referred to what he considered a relapse of severe lower lumbar back pain and pain in the right leg in November 2023.[18] I find this may explain why he changed his opinion about capacity for suitable employment in subsequent reports.
5. By December 2023 Dr Imran opined that the plaintiff's capacity for any form of suitable employment was dependent on recovery (it is not said to what extent) of pain symptoms.
6. In a document titled "Group Risk Claims Preliminary Medical Attendant's Statement" addressed to Zurich-Australia Limited dated 4 (or 9) December 2023,[19] Dr Imran said that the plaintiff was unable to work and would need a further evaluation of suitable employment at some time in the future.
7. In a report dated 29 September 2024, Dr Imran said the plaintiff was not fit for pre-injury work. Dr Imran opined that the plaintiff would be fit to perform modified duties with restrictions "when he recovers".
8. Dr Imran opined that even after recovery from current pain, the plaintiff would not be able to work more than four hours a day , four days a week(that is, 16 hours a week).
9. Dr Imran was not asked to comment on the two jobs identified by the defendant. Dr Imran opined in his 2024 report that the plaintiff would need a detailed consultation with an occupational therapist to discuss the kind of work he would be able to manage both physically and mentally in future.

1. The plaintiff tendered three reports from Dr Akil dated 15 March 2021, 10 December 2024 and 16 January 2025.[20]
2. Dr Akil has been the plaintiff's treating neurosurgeon since 22 February 2021. Dr Akil reviewed the plaintiff on 17 September 2024 and 10 December 2024.[21]
3. Dr Akil's initial examination of the plaintiff revealed an absent right ankle jerk but no other sensory or motor deficit.
4. Dr Akil said the initial MRI scan was undertaken prior to the commencement of radicular symptoms so he arranged a further MRI scan.
5. In March 2021, the plaintiff reported to Dr Akil that his pain level had improved, especially in his leg. Dr Akil suggested the plaintiff continue with physiotherapy. Dr Akil advised the plaintiff that he should adhere to work restrictions and avoid repetitive pushing, pulling or lifting, as well as bending, reaching, twisting, stooping, as well as prolonged sitting, standing or walking. Dr Akil considered that in the light of reported improvement, the plaintiff might be able to perform a desk job where he could alternate between sitting and standing.
6. Dr Akil diagnosed discogenic lower back pain with element of right S1 radiculopathy.
7. In December 2024, Dr Akil discussed further treatment options with the plaintiff which included either persevering with physiotherapy, a right S1 nerve sheath block, or a microdiscectomy at L5-S1. The plaintiff said he wanted to discuss these options with Dr Imran.
8. In his report dated 16 January 2025, Dr Akil opined that the plaintiff was restricted in his ability to push, pull, repetitively bend, twist or stoop. These restrictions could affect his ability to sit or stand for a prolonged period or drive a car.
9. Dr Akil opined that it was likely that the plaintiff would be precluded from returning to manual labour for the foreseeable future. It was his opinion that the plaintiff's incapacity for physically demanding employment "was likely to continue".
10. Dr Akil said he did not discuss alternative suitable employment with the plaintiff as he was not fully aware of the plaintiff's educational background, place of residence and work experience.

1. The plaintiff tendered a series of letters from Mr Lo dated 21 July 2021, 3 November 2021, 2 February 2022, 9 March 2022 and 22 June 2022.[22]
2. Mr Lo's letter to Dr Imran dated 21 July 2021 referred to a telephone consultation with the plaintiff. Mr Lo agreed with Dr Akil's recommended conservative approach.
3. Mr Lo's letter to Dr Imran dated 3 November 2021 noted the plaintiff seemed to have stabilised to a degree and was beginning modified duties at work. Mr Lo wanted an updated MRI scan to check the status of the L5/S1 disc prolapse. He considered himself and Dr Imran could "really ramp up" the plaintiff's physical activity if the plaintiff's condition remained stable. Mr Lo also stressed that he wanted the plaintiff to return to hydrotherapy once pools opened up again after the COVID-19 restrictions.
4. By 2 February 2022, Mr Lo was concerned that the analgesia the plaintiff was taking was masking "the real problem". Mr Lo reduced the plaintiff's Lyrica to 1 x 75 milligrams on alternate days.
5. On 9 March 2022, Mr Lo opined he would be happy for the plaintiff to start a return-to-work program with reduced hours, regular rest breaks, and no lifting, bending or twisting of the back, and that if the pain resurfaced, he should rest.
6. In his letter dated 22 June 2022, Mr Lo opined that the June 2022 MRI scan showed no progression of the L5/S1 broad based disc bulge and there was no neural compression. There were no neurosurgical options. He suggested referral to a multidisciplinary pain management team.
7. Mr Lo opined that the plaintiff did not have the capacity to return to pre-injury work. It was his view that the plaintiff may be retrained to work in an office-based environment.
8. No further attendances were scheduled with Mr Lo.

Dr Damien Daniel, specialist rehabilitation physician

1. The plaintiff tendered reports of Dr Damien Daniel of Advance Healthcare dated 31 August 2022 and 8 August 2023.[23] The plaintiff attended Dr Daniel as part of a pain management program which took place between August 2022 and July 2023.
2. On clinical examination on 31 August 2022, Dr Daniel observed the plaintiff was able to walk unaided with a slightly stiff back. Apart from some limitation of flexion of the lumbosacral spine, the plaintiff had an excellent range of motion. There was no tenderness to palpation and no peripheral neurology in his lower limbs. There were no positive results on provocation of his sacroiliac joint on the right side. He was slightly limited in straight leg raise on the right side due to pain.
3. In August 2023, Dr Daniel diagnosed "a mix of pain types, with features of nociceptive and neuropathic pain". He said there was chronic secondary musculoskeletal pain of moderate-marked severity which was most likely due to the L5-S1 intervertebral disc protrusion.
4. Dr Daniel said that after speaking with the plaintiff's treating physiotherapist,[24] he formed the view the plaintiff had the capacity for light modified duties (for example administrative/desk-based duties) at reduced hours. Dr Daniel qualified this opinion, as he had not seen the plaintiff for some time. He did not have any occupational rehabilitation material before him or any assessments of suitable duties/employment options.
5. Dr Daniel's reports predated the tendered vocational material.

1. The plaintiff tendered medico-legal reports from Dr Eman Awad, occupational physician; Professor Richard Bittar, consultant neurosurgeon, and Dr Meena Mittal, pain medicine specialist and anaesthetist.

1. Dr Awad assessed the plaintiff on 14 November 2024 with a Macedonian interpreter.[25]
2. Dr Awad was provided with the radiology discussed above, as well as a right lower limb venous Doppler ultrasound dated 18 August 2021, and an MRI scan of the brain and cervical spine dated 1 March 2022.
3. Dr Awad diagnosed a prolapsed intervertebral disc at L5-S1 and "chronic pain". Dr Awad opined the plaintiff's pain was discogenic and organic.
4. The plaintiff reported constant back pain with a severity of 9/10 in the mornings, reducing to 5-6/10. He reported throbbing, radiating right leg pain with numbness.
5. On clinical examination, the plaintiff displayed full extension. He was able to flex his knees with pain, stand on his toes and squat. Standing on his heels was painful. He had good lateral extension and rotation.
6. Dr Awad opined that the plaintiff was permanently restricted from undertaking any roles that required him to push, pull, lift, carry more than 10 kilograms, work at heights, or repetitively bend. In addition, the plaintiff could not work in a job which required prolonged standing or sitting, walking on uneven surfaces or being exposed to whole body vibration.
7. Dr Awad opined that the plaintiff had retained a residual partial capacity for 20 hours per week, taking into account his age, injuries, ongoing sequalae, education level, qualifications, occupational history, language skills/command of English and length of time out of employment.
8. Dr Awad noted that despite the fact that the plaintiff had completed a Certificate III in English, he had very little direct communication with her during the consultation and he relied on the interpreter.
9. Dr Awad expressed the view that the plaintiff required upskilling/retraining. She said his command of English may be a barrier to employment.
10. In addition, she considered that the plaintiff was likely to experience repetitive flare ups, leading to recurrent absences which may impact on the plaintiff's ability to work in a reliable and sustained manner.
11. Dr Awad was asked to consider the CoWork Report. Relevantly, Dr Awad opined:
    • Administrative Officer - Appointment Setter/Scheduler: He did not have the level of English required for his role. He had no capacity for this role.
    • ICT Customer Support Officer: He did not have the level of English required for this role as he would need to liaise with customers. He had no capacity for this role.
12. It is unclear from Dr Awad's reports whether, when she commented on the suitability of the roles of Administrative Officer and ICT Customer Support Officer, she was basing her opinion on the plaintiff's English capacity only, or whether she considered that the plaintiff did not have the physical capacity to perform the roles.

Professor Richard Bittar, consultant neurosurgeon

1. The plaintiff tendered a report from Professor Bittar dated 22 November 2024. Professor Bittar assessed the plaintiff on 22 November 2024, with the assistance of an interpreter.
2. Professor Bittar was not provided with the MRI scan of the lumbar spine performed on 6 March 2021 or its report. Professor Bittar was provided with MRI scans of the brain and cervical spine dated 1 March 2022 which have not been tendered.
3. On clinical examination, the plaintiff walked with a non-antalgic and non-myelopathic gait. There was no muscle wasting, swelling or discolouration in the lower limbs. There was moderate restriction of lumbar spine flexion but no restriction of lumbar spine extension. Flexion was more painful than extension. There was no evidence of radiculopathy or myelopathy.
4. Professor Bittar diagnosed lower back pain and right sciatica secondary to a right L5-S1 intervertebral disc prolapse. The plaintiff's clinical presentation was consistent with the radiology. Professor Bittar said he did not observe any abnormal illness behaviour.
5. Professor Bittar opined that it was likely that the plaintiff would continue to experience significant pain and disability into the foreseeable future.
6. Professor Bittar recommended the plaintiff have a standing MRI scan of the lumbar spine and right S1 nerve sheath injection with local anaesthetic and steroids. There is no evidence that either of these have been carried out.
7. Professor Bittar opined the plaintiff should be permanently restricted from:
   • Repetitive or forceful pushing or pulling
   • Repetitive lifting or carrying and heavy lifting
   • Repetitive or sustained bending, reaching or stooping
   • Prolonged sitting, standing or walking
   • Driving for long periods (he can drive for up to one hour, but if driving for longer, would need to take additional medications).
8. Professor Bittar was asked to comment on the suitability of the five jobs set out in a CoWork report dated 28 July 2024, as well as the jobs set out in IPAR vocational planning reports dated 28 July 2022 and 16 December 2022 ( which are not before the Court).
9. Without commenting on any of the roles individually, Professor Bittar opined the plaintiff would not have capacity to perform any of the roles on a reliable and consistent basis, when having regard to the consequences of the plaintiff's back injury, functional limitations identified, as well as his education, training, skills (including limited English skills) and work experience.
10. Professor Bittar opined that there was no work for which the plaintiff was currently suited on a consistent and reliable basis.

Dr Meena Mittal, pain medicine specialist and anaesthetist

1. The plaintiff tendered a report of Dr Mittal dated 11 November 2024. The plaintiff attended for assessment with Dr Mittal on 11 November 2024 with a Macedonian interpreter.
2. Dr Mittal reviewed the (tendered) radiology as well as a right lower limb venous Doppler ultrasound dated 18 August 2021, and an MRI scan of the brain and cervical spine dated 1 March 2022.
3. On clinical examination, there was normal lumbar lordosis. There was evidence of bilateral paravertebral muscle spasm, which was observed to be worse on the right. Flexion was restricted to 30 degrees and extension was restricted to 5 degrees. There was increased tenderness in the paravertebral and midline regions of the lower lumbar spine. The right S1 reflex was absent. The straight leg raise test was positive at 60 degrees on the right-hand side. There was no evidence of muscle wasting or fasciculations. Power was normal. There was no sensory abnormality to light touch and pinprick.
4. Dr Mittal diagnosed:
   • Aggravation of lumbar spondylosis.
   • Lower back pain secondary to myofascial spasm. There may be an underlying element of facet joint pain.
   • Right lower limb pain secondary to right S1 radiculopathy due to an L5/S1 disc prolapse with impingement on the right S1 nerve root.
5. Dr Mittal recommended that the plaintiff be reviewed by a pain management specialist to address:
   • Analgesic medications, particularly considering the adverse effects of long-term use of NSAIDs.
   • Interventional pain management in the form of neuromodulation or pulsed radiofrequency denervation.
6. Dr Mittal opined that the plaintiff's presentation was consistent with the examination and radiological findings.
7. Dr Mittal opined the plaintiff would be permanently precluded from returning to manual work and would need to avoid:
   • Prolonged sitting, standing or walking
   • Prolonged driving
   • Lifting or repetitive lifting
   • Carrying or prolonged carrying
   • Twisting, turning, stooping, squatting
   • Climbing up and down stairs
   • Climbing up and down ladders
   • Pushing or pulling activities.
8. Dr Mittal opined that all of the roles in the Co-Work report were unsuitable for the plaintiff, taking into consideration:
   • The plaintiff had not worked as an electrical engineer for more than six months[26]
   • The plaintiff completed his education in electrical engineering several years ago
   • He had poor English skills
   • He had difficulty in engaging in activities such as prolonged sitting, standing, walking and driving
   • He had high levels of baseline pain, exacerbated by activities such as sitting, standing, walking or bending
   • He is on medications that are sedative in nature and affect cognition
   • He has not worked as an electrical engineer in Australia.
9. Dr Mittal was unable to comment on whether the plaintiff's incapacity would be likely to continue for the foreseeable future. She considered that given the plaintiff's young age and the fact there was further treatment that can be offered, there was a possibility for some improvement in the foreseeable future (with further training in English skills).

1. The defendant tendered medico-legal reports of Dr Joseph Slesenger, occupational physician.

1. The plaintiff attended Dr Slesenger for assessments on 9 March 2023 and 30 September 2024 with a Macedonian interpreter. Dr Slesenger prepared reports dated 10 March 2023 and 1 November 2024.
2. Dr Slesenger reviewed the (tendered) radiology, apart from the MRI of the lumbar spine dated 1 October 2024 which came into existence after his second examination. Dr Slesenger also had the report of an MRI scan of the brain and cervical spine dated 1 March 2022 which is not before the Court.
3. In his first report, Dr Slesenger diagnosed a soft tissue injury to the lumbar spine, presenting with chronic lower back pain. In his second report, Dr Slesenger diagnosed the plaintiff with a soft tissue injury, aggravation of degenerative disease of the lumbar spine, and chronic lower back pain with radiating features.
4. In his first report, Dr Slesenger opined there was a functional element to the plaintiff's presentation which contributed to his impairment. Dr Slesenger referred to inconsistences between the seated and supine straight leg raise. He also noted the absence of wasting, despite complaints of weakness and a demonstrated restricted range of movement. He considered that there was an improved range of lumbar spinal movements upon distraction, particularly flexion.
5. In his second report, Dr Slesenger did not comment on functional elements, but he acknowledged his earlier comments regarding functional elements.
6. On clinical examination in 9 March 2023, Dr Slesenger found no tenderness upon palpation of the lumbar spine, extension of the lumbar spine reached 30 degrees, and right and left rotation each reached 70 degrees. Power was reduced in the lower limbs and ankle and knee reflexes were normal bilaterally.
7. On clinical examination on 30 September 2024, Dr Slesenger found tenderness over the lower lumbar spine and the paraspinal musculature, and restrictions in the range of movement in flexion, extension, bilateral rotation and titling. Dr Slesenger said that the plaintiff's lumbar spinal movements improved upon distraction. On neurological examination, Dr Slesenger found globally reduced power with collapsing weakness noted, dull ankle and knee reflexes bilaterally, and plantar reflexes down going bilaterally. The straight leg raise tests achieved a range of 20 degrees on the right (supine), 30 degrees on the left (supine) and 90 degrees bilaterally when seated.
8. Dr Slesenger opined the plaintiff was approaching a position of maximum medical improvement. He noted the length of the impairment and disability, the limited response to treatment to date and the comprehensive nature of the treatment received. Dr Slesenger noted a number of other negative prognostic indicators including his psychological comorbidity and his current job detachment.
9. Dr Slesenger opined that the plaintiff could not return to his pre-injury job.
10. Dr Slesenger opined the plaintiff maintained a capacity for work with restrictions. The restrictions were:
    • No push, pull, carry or lift over 5 kilograms on a repetitive basis and 7.5 kilograms on an occasional basis
    • Avoid repetitive bending and twisting
    • Avoid prolonged static postures
    • Avoid exposure to whole body vibration.
11. Dr Slesenger opined the plaintiff could return to work on a graduated return-to-work plan, commencing work four hours a day, four days a week, graduating back to pre-injury hours over six to eight weeks. Dr Slesenger recommended this graduated return to work in both of his reports.
12. Dr Slesenger was asked to comment on the suitability of the roles set out in a CoWork report dated 28 July 2024.
13. Dr Slesenger opined the plaintiff could return to work on a graduated basis, adhering to the restrictions set out above, in the roles of Administrative Officer (Appointment Setter/Scheduler) and IT Technical Support Officer (presumably Dr Slesenger was referring to the role of ICT Customer Support Officer) and Desktop Support Engineer and Service Desk Support (which appear to be examples of jobs under the umbrella description of IT Customer Support Officer).

1. Counsel for the defendant did not challenge the plaintiff's credit.
2. Senior Counsel for the plaintiff submitted that the plaintiff gave evidence in a clear and unequivocal manner, noting that there was no attack on his credit and no extraneous material such as surveillance or significant medical evidence to suggest that the plaintiff was presenting in a functional manner.[27]
3. I have had the benefit of observing the plaintiff while he was giving evidence to the Court. I formed the view that he tended to exaggerate or overstate things. At one stage, he described the English course he studied as not a professional course. He quickly resiled from that description.[28]
4. Despite his tendency to exaggerate, I formed the view that he was an honest witness who appeared to be doing his best to provide accurate responses to the questions asked of him.
5. The plaintiff's account of his impairment consequences is corroborated to a degree by his wife, who was not required to attend for cross-examination.
6. In addition, the medical reports of the treating medical practitioners and the bulk of the medico-legal experts of both parties, contained accounts of his injuries and consequences which were supportive of the plaintiff's evidence about his experience of pain in his back and right leg and the consequences for him.
7. After a consideration of all of the evidence, particularly the evidence of the plaintiff, as corroborated by the evidence of his wife, and the medical reports tendered to the Court, I generally accept that he suffers from the impairment consequences which he has described.
8. I find that the relevant compensable injury is a right L5-S1 intervertebral disc prolapse which causes right-sided sciatica.
9. I find that the plaintiff experiences constant pain in his lower back and symptoms of numbness and pain in right leg. The pain varies in intensity and is at times severe. I accept that the plaintiff's pain is generally aggravated by activity.
10. I note that all the medical evidence supports the proposition that the plaintiff is prevented from returning to his pre-injury work because of his compensable lumbar spine injury.
11. The defendant did not dispute the issue of permanence.
12. I am satisfied that the plaintiff's spinal impairment consequences are permanent in the requisite sense.

Is the Plaintiff permanently unable to earn at least 60 per cent of his "without injury" earnings in suitable employment because of the permanent impairment consequences of his compensable spinal injury?

1. For the plaintiff to succeed in his claim for the loss of earning capacity consequence, he must establish:
   • his loss of earning capacity consequence is, when judged by comparison with other cases in the range of possible impairments or losses of a body function, "fairly described as being more than significant or marked, and as being at least very considerable" (the narrative test);
   • he has a loss of earning capacity of 40 per cent or more measured as set out in s325(2)(f) of the Act; and
   • after the date of the hearing, he will continue permanently to have a loss of earning capacity productive of a financial loss of 40 per cent or more.

1. The parties agreed that the "without injury" earnings figure was $105,976 per annum or $2,038 per week.
2. The relevant 60 per cent figure is $63,586 per annum or $1,222 per week.

1. The plaintiff submitted that he has no capacity for suitable employment on a reliable and consistent basis.
   1. In accordance with its evidentiary onus,[29] the defendant submitted that the plaintiff had the capacity to work full time as an Administrative Officer (Appointment Setter/Scheduler) or an ICT Customer Support Officer.[30]
   2. The defendant submitted, relying on a CoWork vocational assessment and labour market analysis report dated 28 July 2024, that each of the jobs for which the plaintiff had capacity would produce gross full-time earnings in excess of the relevant 60 per cent threshold as follows:
      • Administrative Officer (Appointment Setter/Scheduler): $1,337
      • ICT Customer Support Officer: $1,392 to $1,871.
   3. The plaintiff tendered a vocational assessment report of Ms Katrine Green, dated 20 January 2025[31] and a Flexi Personnel earnings report dated 19 November 2024.[32]
   4. Relevantly, according to the Flexi Personnel earnings report, the weekly full-time earnings for the proposed roles were as follows:
      • Administrative Officer (Appointment Setter/Scheduler): $24.87 per hour, which would equate to $945 for a 38-hour week.
      • ICT Customer Support Officer: $31.09 per hour, which would equate to $1,181 for a 38-hour week.
   5. Neither counsel made submissions about the different figures provided for the relevant jobs as between the CoWork report and the Flexi Personnel earnings report.

1. In order to understand the medical opinions regarding suitable employment evidence, it is convenient to summarise the vocational material at this point.

Administrative Officer (Appointment Setter/Scheduler Information Officer

1. The physical demands for this role were described as sedentary.
2. The CoWork report noted that this type of job required "Good communication skills along with sound computer skills ... . Multi-tasking is required to book appointments whilst talking with customers. This occupation usually requires a medium level of digital literacy."[33]
3. No Worksite assessment was provided for this job.

1. The physical demands of this job were assessed as light. It was said to be generally a desk-based job. Extensive digital literacy was required for this job.
2. Ms Joanne McLeod, occupational therapist, of Co-Work, thought the plaintiff had downplayed his computer skills and said that completing a degree in any field of engineering was not possible without high-level computer skills. It was asserted that the plaintiff would not have obtained his degree without highly developed computer skills. Ms McLeod did not provide any reasons for reaching such a conclusion with respect to a course undertaken in Macedonia.
3. An unidentified person from CoWork conducted a worksite assessment for the position of an IT technical support officer on an unspecified date at a computer business in Hawthorn. It was noted that the position required the ability to listen and question people carefully, good memory and concentration, the ability to deal with stressful and high-pressure situations within tight timeframes, the ability to communicate complex skills and ideas with clarity, and required a self-motivated independent thinker with good problem-solving skills. It was noted that a typical day would require the worker to log onto the computer system, start to take calls at the beginning of the shift, follow up on the previous day's tasks, and included delivery of spare parts and arranging courier pick up of equipment if needed. The work was observed to be constant, with little downtime between calls. The physical demands included constant sitting, with occasional walking around an office area, occasional bending, occasional reaching, and occasional lifting and carrying.

Do the identified jobs constitute "suitable employment"?

1. In considering whether employment represents "suitable employment", I must consider the nature of the plaintiff's incapacity, the nature of his pre-injury employment, his age, education, skills and work experience, his place of residence, any return-to-work plan and any occupational rehabilitation services provided.[34]
2. I am required to take a "real world" approach to the plaintiff's employment capacity in this gateway application. Employment capacity requires more than a physical capacity to engage in a task or tasks.[35]
3. I accept that the plaintiff obtained tertiary qualifications in Macedonia. As part of his studies, he gained computer skills; however, since coming to Australia, he has relied upon his manual skills to earn an income, and has not been in any job which required computer skills.
4. The plaintiff has limited English. The defendant submitted that it is difficult to assess the level of the plaintiff's English proficiency. I accept that submission.
5. Despite it being difficult to assess the plaintiff's English proficiency, I note the following:
   • The plaintiff's wife has been able to improve her English and obtain employment in an office; however, the plaintiff has been unable to improve to do the same;
   • It does not appear that an interpreter was present when the plaintiff attended his treating doctors;
   • None of the treating doctors referred to any communication issues - they did not comment on the plaintiff's English proficiency;
   • The plaintiff attended all the medico-legal examinations with an interpreter;
   • The plaintiff gave evidence through an interpreter and his English skills were not tested in Court;
   • The plaintiff agreed that he was able to follow basic English commands when he was working as a picker-packer for the defendant;
   • The Co-Work assessor noted that the plaintiff spoke mainly in Macedonian during the assessment but he was able to understand some English and speak English at times. The assessor specifically said: "It was not possible to properly assess his English fluency under these circumstances."[36]
6. Taking all the evidence into account, I accept that the plaintiff has limited English which may well be a barrier to him undertaking the role of Administrative Officer - Appointment Setter/Scheduler or ICT Customer Support Officer.
7. The evidence in relation to the plaintiff's IT skills was unclear. The defendant pointed to the fact that the plaintiff obtained a Bachelor of Science in Electrical Engineering and Information Technology from the Ss Cyril and Methodius University in Macedonia to support the proposition that the plaintiff had experience in IT.
8. This proposition is not borne out by the certificate from the Ss Cyril and Methodius University[37] which showed that the plaintiff did not study any specific IT subjects. Two of the units studied probably required some computer use - "Computer Modelling in Power Engineering" and "Artificial Intelligence Applications in Power Engineering". The plaintiff gave evidence that his computer skills were limited and he was able to perform "very basic Internet, Facebook, gmail".[38] He agreed he could type a document using Microsoft Word. It was not clear whether he meant in English or Macedonian.
9. I find that the plaintiff has some limited computer skills . There is no real evidence as to his English-based computer skills. I am unable to ascertain his current level of computer proficiency in English.
10. Dr Imran and Dr Akil were of the view that the plaintiff may be able to perform light work in the future but not at the time of their last examinations.
11. Professor Bittar and Dr Mittal opined that the plaintiff had no work capacity.
12. The opinions of the occupational physicians are of the most assistance in determining this issue, given their speciality.[39]
13. I accept the opinion of Dr Awad that the plaintiff does not have a realistic capacity to perform suitable employment on a reliable and consistent basis. In my view, her opinion better accords with the impairment consequences which I have accepted.
14. Insofar as Dr Slesenger purported to comment on psychological issues, I find that such comments fall outside his area of expertise, and I place no weight upon them.
15. I find that the plaintiff does not lack motivation to work in suitable employment. The evidence regarding job applications was not contested and supports the submission made by Senior Counsel that he is in fact motivated to work but he believes he lacks the capacity to work on a reliable basis and lacks the physical capacity to work.
16. In light of my findings regarding the plaintiff's ongoing pain and impairment consequences, I am not satisfied that the two jobs identified by the defendant represent suitable employment.
17. I find that the plaintiff does not have a capacity for suitable employment on a reliable and consistent basis. This incapacity for work is based on the combination of his lack of English proficiency and his physical incapacity for work.
18. As the plaintiff does not have the capacity for suitable employment, it is not necessary for me to make any findings about the different wage rates produced by the parties in the Co-Work report and the Flexi Personnel report.
19. I find that the plaintiff has satisfied his onus to establish that he is permanently unable to undertake suitable employment in which he could earn at least $63,586 per annum.

Is the loss of earning capacity consequence of the plaintiff's compensable spinal injury "serious"?

1. I find that the loss of capacity to undertake his pre-injury employment or suitable employment now and into the foreseeable future is a consequence that can be "fairly described as being more than significant or marked, and as being at least very considerable". The plaintiff therefore satisfies the narrative test.

1. The plaintiff has leave to issue common law proceedings claiming both pain and suffering and loss of earning capacity damages.
2. I will hear the parties on the issue of costs.

[1] Defendant Exhibit 4, DCB 148-149

[2] Plaintiff Exhibit P1, Plaintiff's Further Amended Court Book ("PCB") 13-20; 21-24 and 221-222

[3] A prescribed nonsteroidal anti-inflammatory drug

[4] Also known as Pregabalin - a drug prescribed for neuropathic pain

[5] Over-the-counter non-prescription medication

[6] Also known as escitalopram - a prescribed anti-depressant medication

[8] Plaintiff Exhibit 1, PCB 18, paragraphs [42]-[43]

[9] Plaintiff Exhibit 2, PCB 25-27

[10] Plaintiff Exhibit 3, PCB 29 and Plaintiff Exhibit 1, PCB 15, paragraph [13]

[11] Plaintiff Exhibit 3, PCB 28

[12] Plaintiff Exhibit 3, PCB 29

[13] Plaintiff Exhibit 3, PCB 30

[14] Plaintiff Exhibit 3, PCB 31

[15] Plaintiff Exhibit 3, PCB 33

[16] Plaintiff Exhibit 3, PCB 35

[17] Plaintiff Exhibit 7, PCB 62-82

[18] Plaintiff Exhibit 7, PCB 81

[19] Plaintiff Exhibit 7, PCB 76-80. The handwritten date is difficult to decipher

[21] Plaintiff Exhibit 4, PCB 41 and 43

[24] No material from the plaintiff's treating physiotherapist was tendered

[26] The plaintiff had never worked as an electrical engineer

[27] Transcript ("T") 104, Lines ("L") 29-31; T105, L1

[29] Giankos v SPC Ardmona Operations Ltd [2011] VSCA 121; (2011) 34 VR 120 ("Giankos") at 144-145, paragraph [115]

1. [30] Defendant Exhibit D2, DCB 67-131

[31] Plaintiff Exhibit P11, PCB 128-157

[32] Plaintiff exhibit P12, PCB 153 -157

[34] Section 3 of the Act

[35] Richter v Driscoll [2016] VSCA 142; (2016) 51 VR 95

[37] Defendant Exhibit 4, DCB 148-149