Samarkovska v Victorian WorkCover Authority [2026] VCC 2

(a) What are the permanent impairment consequences of Ms Samarkovska's compensable right shoulder injury?

(b) Is Ms Samarkovska permanently unable to earn at least $49,068 per annum in suitable employment because of the impairment consequences of the compensable right shoulder injury?

(c) Is the loss of earning capacity consequence of Ms Samarkovska's compensable right shoulder injury "serious"?

(d) Are the permanent impairment consequences of Ms Samarkovska's compensable right shoulder injury "serious"?

1. For the reasons that follow, Ms Samarkovska is granted leave to seek loss of earning capacity damages for her compensable right shoulder injury. Such leave also entitles her to seek pain and suffering damages.

1. The following, I believe, are uncontroversial matters. As far as any were contested, these represent my findings save where otherwise stated.
2. Ms Samarkovska was born and brought up in Macedonia. She migrated to Australia with her family at aged eleven years. She completed Year 9 at Lalor Secondary College. Ms Samarkovska married when aged fifteen years, and had the first of her four children at age sixteen.
3. Between 1985 and 2000, Ms Samarkovska worked at various times as a machine operator, and then a skiver. She then was at home full time caring for her children.
4. In 2011, Ms Samarkovska returned to paid employment, first as a packer/process worker, and then as a room attendant at an hotel in Melbourne.
5. On 13 January 2012, Ms Samarkovska suffered a back injury at work. In May 2012, she ceased work due to that injury. Ms Samarkovska did not work for the next five years because of the impairment consequences of that injury. During that time she also experienced right shoulder and right arm symptoms. Ms Samarkovska said that those right shoulder symptoms resolved with physiotherapy treatment.
6. Ms Samarkovska's lower back symptoms have not resolved, but they improved sufficiently for her to resume work in about 2017.
7. Between 2017 and 2018, she worked in security roles, as a customer service officer at Melbourne Airport, and as a picker/packer. Ms Samarkovska suffered a left knee injury in September 2018 whilst working as a picker/packer. Following that injury, she performed light office duties for three to four months and was then told that no further work was available. Ms Samarkovska subsequently worked as a bar tender/waitress and then as a property manager.
8. In July 2019, Ms Samarkovska began working for the employer. She worked in security and as a concierge. In 2022, Ms Samarkovska was trained by the employer to fulfil the role of an ESO. Following this, she worked a pattern of two weeks as a concierge, followed by one week as an ESO.
9. In May 2023, Ms Samarkovska began experiencing pain in her right shoulder as a result of manually handling heavy bollards in the course of her duties as an ESO.
10. Ms Samarkovska believes that she first mentioned her shoulder problem to her general practitioner ("GP"), Dr Vaso Dzartov, on 10 June 2023. The first reference to it in the clinical notes is on 1 July 2023.
11. Ms Samarkovska ceased work on 25 July 2023, because of her right shoulder symptoms. She has not worked since.
12. Her right shoulder injury has been treated conservatively. She has been referred to Mr Jim Kiellerup, orthopaedic surgeon, and Mr Ash Chehata, orthopaedic upper limb surgeon. She had a steroid injection in September 2023. She has participated in a pain management program.
13. Ms Samarkovska has developed some left shoulder symptoms. She believes this was a consequence of favouring her right shoulder.
14. Ms Samarkovska continues to have physiotherapy treatment twice a week. She takes Tramadol, Panadeine Forte, Temazepam, Panadol, Ibuprofen, and Restavit.
15. Ms Samarkovska lives with her youngest daughter, and her parents in suburban Melbourne.

What are the permanent impairment consequences of Ms Samarkovska's compensable right shoulder injury?

1. Ms Samarkovska relied upon two affidavits sworn by her on 19 December 2024 and 20 October 2025.
2. Ms Samarkovska claims that she suffers from the following impairment consequences by reason of her right shoulder injury:

(a) Ongoing pain in her right shoulder radiating up into her neck and down into her right elbow;

(b) Pain in her left shoulder;

(c) Numbness in the tips of the right second, fourth and fifth fingers;

(d) Difficulty reaching overhead and lifting anything heavy;

(e) Disturbed sleep;

(f) Difficulty driving for prolonged periods;

(g) Difficulty shopping;

(h) Cooking, vacuuming, mopping, cleaning the bathroom and changing beds are difficult;

(i) Difficulty removing clothes from the washing machine, carrying a basket of washing and hanging clothes on the washing line;

(j) An inability to mow her nature strip and tend to her garden;

(k) She cannot knit for prolonged periods and is no longer able to participate in Krav Magga;

(l) Some difficulties with personal care, including washing her hair, dressing and putting on make-up;

(m) She struggles to lift and carry her young granddaughter;

(n) Because of her pain, she socialises less.

1. The matters of particular relevance during cross-examination were as follows:

(a) Ms Samarkovska agreed that she had a prior back injury in 2012. She continued to consult her GP about pain in her back in 2022 and 2023, and was prescribed Panadeine Forte which she was continuing to take at the time of her right shoulder injury;

(b) Her lower back has continued to trouble her, but mainly in the winter when it is cold. Ms Samarkovska denied that her back condition causes her to wake at night, limits her walking, restricts her standing, sitting, driving, self-care, and ability to do housework and leisure activities;

(c) She agreed that when examined by Dr Helen Sutcliffe in 2014, she complained of lower back and right shoulder problems. Her back pain is not as severe now as it was then. It became sufficiently better that she was able to return to work in 2017 and continue working until her right shoulder injury in 2023;

(d) Ms Samarkovska agreed that she never resumed work as a room attendant after her back injury. She disagreed that the same restrictions caused by her back currently impact her capacity to do housework. Ms Samarkovska said housework was totally different as she could take her time.

(e) Ms Samarkovska believed that she first mentioned her right shoulder injury to her GP on 10 June 2023;

(f) She started Krav Magga in about 2020, but it stopped during the COVID-19 pandemic, and she has not been able to resume it since;

(g) Ms Samarkovska could not explain why her difficulty sitting, standing and walking due to her shoulder injury was not mentioned in her affidavits;

(h) She has not had an injection in her left shoulder because the VWA have not agreed to pay for it;

(i) She disagreed totally with Dr Slesenger's suggestion that she has heavy callouses on both hands and ingrained dirt;

(j) She denied that she is exaggerating her symptoms;

(k) She is unable to renew her first aid qualifications because of her right shoulder problems;

(l) She loved her concierge job but cannot do it now;

(m) She knows what customer service roles involve, and she would not be able to do such roles because of her right shoulder.

1. This is a convenient point at which to consider the medical evidence.

1. A report was tendered from Dr Dzartov dated 27 June 2025, in which he outlined the treatment of Ms Samarkovska's shoulder injuries on and after 1 July 2023. The VWA tendered extracts of Dr Dzartov's clinical records
2. Dr Dzartov opined that Ms Samarkovska sustained right rotator cuff tendinopathy, biceps tendinopathy and subacromial bursitis, a frozen left shoulder, a Chronic Pain Syndrome with evidence of psychological dysfunction and left shoulder pain with decreased mobility. He said she was unfit for her pre-injury duties or any physically demanding job.

1. Two letters were tendered from Mr Kiellerup dated 5 September 2023 and 12 October 2023.
2. On 5 September 2023, Mr Kiellerup noted that the MRI scan of Ms Samarkovska's right shoulder revealed significant rotator cuff tendinitis and subacromial bursitis. He suggested she have a cortisone injection.
3. Following the injection, on 12 October 2023, Mr Kiellerup noted Ms Samarkovska's response to it had been slow but that she was feeling a lot better. He suggested a repeat injection if her symptoms returned.

1. Seven reports were tendered from Mr Chehata, dated 23 November 2023, 18 January 2024, 6 June 2024, 22 May 2025, 6 June 2025, 1 July 2025, and 20 November 2025.
2. Mr Chehata first saw Ms Samarkovska in November 2023, and continues to be her treating orthopaedic surgeon.
3. In his first report of 23 November 2023, Mr Chehata said that the ultrasound scan of Ms Samarkovska's right shoulder was completely normal apart from bursitis and impingement. He understood that Ms Samarkovska experienced swelling of her hand and face following the cortisone injection, and that Mr Kiellerup thought the injection should not be repeated. Mr Chehata said that the cortisone injection had a reasonable effect, but over the preceding weeks, Ms Samarkovska had noticed ongoing pain, and her right shoulder was quite irritable. She reported radiating pain into her neck and trapezius and intermittent numbness and pins and needles in her right hand.
4. Mr Chehata said:[1]

"Her most recent MRI scans from August confirm tendinosis, some bursitis and some very small partial thickness changes but no traumatic avulsions and it certainly would be more suggestive and her picture suggests more of an adhesive capsulitis."

5. Mr Chehata requested nerve conduction studies and MRI scans of the cervical spine and shoulders. He noted Ms Samarkovska was already developing intermittent pain in her left shoulder.
6. In his second report of 18 January 2024, Mr Chehata said that the nerve conduction studies were equivocal regarding Ms Samarkovska's carpal tunnel condition. The MRI scan of her right shoulder supported a diagnosis of adhesive capsulitis. Given her reaction to a cortisone injection, Ms Samarkovska was reluctant to have a hydrodilatation.
7. In his third report of 6 June 2024, Mr Chehata again said that Ms Samarkovska had a frozen shoulder. He said that such a condition can often take a couple of years to completely resolve, but usually improves over time.
8. Mr Chehata next examined Ms Samarkovska in May 2025. She complained of ongoing issues in both shoulders. Mr Chehata suggested a cortisone injection for the left shoulder and arthroscopic surgery to "clean out inflammation in the right shoulder".[2] He also recommended that Ms Samarkovska explore other non-surgical solutions.
9. In a medico-legal report dated 4 June 2025, Mr Chehata stated his clinical assessment as follows:[3]

"The primary diagnosis is right shoulder adhesive capsulitis, which is work-related and has remained chronic and persistent despite conservative management.

This condition is associated with supraspinatus tendinopathy, partial thickness tear, subacromial bursitis, and impingement.

The secondary diagnosis involves left shoulder pain with decreased mobility, which represents a recent development due to overcompensation for right shoulder dysfunction and shows early signs of adhesive capsulitis."

1. Mr Chehata opined that gradual improvement was expected in the short term with appropriate intervention. He thought the left shoulder may respond well to early treatment, and the adhesive capsulitis in the right shoulder should improve functionally over eighteen to twenty-four months. Negative factors that may impact upon the prognosis included bilateral involvement, previous treatment failure, corticosteroid sensitivity and smoking history.
2. Regarding work capacity, Mr Chehata opined that Ms Samarkovska was unable to perform overhead activities and repetitive or heavy lifting. Mr Chehata noted there were limitations on prolonged static positioning and driving restrictions. He opined that Ms Samarkovska was unfit for her pre-injury duties and unfit for any suitable alternative employment on a consistent and reliable full-time basis.
3. Mr Chehata recommended continued conservative management, "with surgical options reserved for failure of conservative treatment or significant functional deterioration".[4]
4. Mr Chehata was asked to provide a supplementary medico-legal report. In his report dated 1 July 2025, Mr Chehata stated that Ms Samarkovska was likely indefinitely unfit for any suitable employment due to the impairment of her right and left shoulders.
5. In his final report, dated 20 November 2025, Mr Chehata was provided with the reports of Dr Terence Saxby, orthopaedic surgeon, and Dr David Barton, occupational physician, and asked whether they caused him to alter his opinions. Mr Chehata said that he did not alter his opinions that Ms Samarkovska's shoulder condition was materially contributed to and aggravated by her work activities; she was continuing to experience work-related symptoms and restrictions and was unfit for suitable employment.

1. A report was tendered from Dr Slesenger dated 12 July 2024. Dr Slesenger examined Ms Samarkovska on 1 July 2024.
2. On examination of Ms Samarkovska's right shoulder, Dr Slesenger noted no trophic changes, scarring or wasting. There was tenderness over the superior aspect of the shoulder on palpation. On range of movement testing, flexion was to 30 degrees, extension 20 degrees, internal rotation 10 degrees, external rotation 20 degrees and abduction to 30 degrees. Dr Slesenger noted Ms Samarkovska's "range of right shoulder movements improved upon distraction".[5] He did not identify the nature and extent of the improvement.
3. Dr Slesenger found some restriction of the range of motion in the left shoulder.
4. Upon inspection of her hands, Dr Slesenger said:[6]

"... [T]here was evidence of osteoarthritic changes in both hands. There was evidence of heavy callosities on both hands, most noticeable on the right side with evidence of ingrained dirt in both hands."

5. Grip strength was moderately weakened in the right hand, but normal in the left.
6. On neurological examination of the right upper limb, power was reduced to 1/5, with collapsing weakness noted. Reflexes were "dull but symmetrical bilaterally".[7]
7. Dr Slesenger made the following diagnosis:[8]

"Based on the evidence presented, I am satisfied that Ms Samarkovska suffered a right shoulder soft tissue injury, now resolved. > > While she presents with residual right shoulder pain, stiffness, and restricted range of movements, I note:

• Evidence of bimanual tasks being performed with no evidence of avoidance of the right side.
• The reassuring nature of the imaging findings.
• Improved range of right shoulder movements upon distraction.
• Absence of wasting around the right shoulder."

1. The soft tissue injury having resolved, Dr Slesenger opined Ms Samarkovska was fit for pre-injury duties and hours.
2. Dr Slesenger noted that Ms Samarkovska had a pre-existing lower back injury for which she was taking potent analgesia. He said that condition was likely a significant barrier to her returning to work.

1. A report was tendered from Dr Chow dated 8 August 2024. Dr Chow examined Ms Samarkovska for the purpose of an impairment assessment on 5 August 2024.
2. On examination, Dr Chow found no obvious deformity, swelling or colour change in the right shoulder compared to the left shoulder. There was tenderness in the posterior aspect of the right shoulder in the area of the trapezius muscle. Active range of movement in the right shoulder was globally reduced compared to the left. Paraesthesia was observed in the palmar aspects of the second, fourth and fifth distal phalanges in the right hand in a "non-anatomical distribution".[9]
3. Dr Chow opined that Ms Samarkovska continued to experience symptoms relevant to her work-related right shoulder injury. He opined that her impairment was unlikely to change in the following twelve months. He noted that the natural history of adhesive capsulitis was for spontaneous resolution in one to three years, but in some individuals there may be permanent loss of movement. He said that her condition affected some of her activities of daily living and her ability to work.

1. Two reports were tendered from Mr O'Brien, dated 29 July 2025 and 24 November 2025. Mr O'Brien examined Ms Samarkovska on 29 July 2025.
2. On examination, Mr O'Brien relevantly noted:[10]

"There was no obvious wasting associated with muscles of the right shoulder girdle. There was, however, significant generalised tenderness around the region of the right shoulder. Active flexion was 90° with 80° of abduction. Extension was 30° with 10° of adduction, 50° of internal rotation and 70° of external rotation. Active flexion, abduction and external rotation against resistance did not appear to precipitate any significant shoulder pain. > > There was no wasting associated within the vicinity of the left shoulder, with tenderness confined mainly to the anterior and superior aspect of the shoulder. Left shoulder active flexion was 150° with 150° of abduction, 40° of extension, 20° of adduction, and some 70° of both internal and external rotation.

The patient reported minimal decreased sensation over the tips of the index, ring and little finger on the right hand. There did not appear to be any deficit in motor function in the upper limbs. Reflexes were present."

1. Mr O'Brien opined that the physical signs in the right shoulder were basically objective. The presence of rotator cuff and bursal pathology was suggested, and appeared in keeping with the physical signs and presence of chronic right shoulder pain. The signs in the left shoulder were subjective and mild. He opined Ms Samarkovska's condition was stable, and the prognosis poor.
2. Mr O'Brien opined that Ms Samarkovska was unfit for her pre-injury duties and any form of employment requiring "any form of manual duties".[11] He noted she was markedly restricted in her general, social, domestic and recreational activities.
3. Mr O'Brien was subsequently provided with the reports of Dr Saxby and Dr Barton to consider. He opined that it was not reasonable to suggest that Ms Samarkovska's symptoms were now related to her underlying pre-existing degenerative change. This was because her right shoulder was asymptomatic prior to the work incident, which precipitated symptoms that have continued. Mr O'Brien emphasised that neither he nor Dr Saxby had made findings of inconsistency on presentation.

Dr Andrew Muir, consultant in pain management

1. A report was tendered from Dr Muir dated 12 May 2025. Dr Muir examined Ms Samarkovska on 1 May 2025.
2. On examination, Dr Muir noted that Ms Samarkovska had significant restriction of right more than left shoulder range of motion. Neurological examination of her upper limbs was normal, although she experienced subjective hyperalgesia in the left forequarter. Ms Samarkovska was tender in the epaulette distribution bilaterally, moreso on the right side. The left sternocleidomastoid joint was quite tender
3. Dr Muir said the diagnosis was:[12]

"... [A]n ongoing chronic pain syndrome affecting the right shoulder. There is evidence of psychological dysfunction as well as significant myofascial pain in the right and left forequarters."

4. Dr Muir's opinion was Ms Samarkovska's medical condition and/or incapacity for work is still materially contributed to by the claimed injury.
5. Dr Muir opined that Ms Samarkovska was permanently unfit for pre-injury and suitable employment by reason of her right shoulder condition. He said the options listed in the vocational assessment with which he was provided were not appropriate.

1. Two reports were tendered from Dr Chan, dated 12 August 2025 and 19 November 2025. Dr Chan examined Ms Samarkovska on 12 August 2025.
2. Dr Chan opined that Ms Samarkovska suffered a soft tissue injury to her right shoulder which had now resolved, but the injury led to the development of adhesive capsulitis. She had chronic pain in her right shoulder and arm. She had left shoulder bursitis and tendinosis and reported pain in her left shoulder due to increased use.
3. Dr Chan was of the view that Ms Samarkovska's condition may require a multidisciplinary pain management program.
4. In Dr Chan's opinion, Ms Samarkovska was unfit for her pre-injury duties and alternative employment by reason of her right shoulder condition and consequential left shoulder condition. He was of the view that the incapacity was likely to be indefinite if there was no surgery or other intervention that led to a reduction in her pain and improvement in her functional capacity.
5. Dr Chan was subsequently provided with the reports of Dr Saxby and Dr Barton. He said:[13]

"I note that both Dr Saxby and Dr Barton opined that Ms Samarkovska could have had a soft tissue injury sustained at work that has resolved. These opinions are consistent with the diagnosis that I stated. Dr Saxby also raised the possibility that Ms Samarkovska may have had some adhesive capsulitis which does not differ from the opinion I provided. The only difference is that I have stated that as a result of the soft tissue injury that was initially sustained and resolved and possible adhesive capsulitis, that it has led to Ms Samarkovska developing a chronic pain syndrome affecting her shoulder and neck areas. Chronic pain syndromes are often triggered by biological factors (the soft tissue injury) on the background of other psychosocial factors that then lead to the development of the chronic pain syndrome."

6. Dr Chan did not change his opinion regarding Ms Samarkovska's work capacity.

1. Two reports were tendered from Dr Saxby, dated 20 October 2025 and 29 October 2025. The first report was provided 'on the papers'. Dr Saxby examined Ms Samarkovska for his second report.
2. In his first report, Dr Saxby opined that the diagnosis was of mild right shoulder rotator cuff tendinopathy, "perhaps with an episode of so-called adhesive capsulitis".[14] Given the changes on imaging were relatively mild, Dr Saxby said that he would have expected the right shoulder to be functioning reasonably well. Dr Saxby described the radiological findings as relatively minor, and consistent with age-related changes. As to the contribution of the alleged work incident, he opined:[15]

"... [T]he major component of Ms Samarkovska's condition is underlying degenerative change which has progressed over time. Initially the work could have caused some temporary increase in symptoms or exacerbation of symptoms. > > However, the work-related activities were painful because of the underlying condition rather than the work activities causing the underlying condition. In my opinion at this stage any work-related activities contribution has been subsumed by the progression of the underlying condition."

3. When Dr Saxby examined Ms Samarkovska for the purpose of his second report, he noted no wasting, deformity, scarring or localised tenderness in the shoulders. There was a significant restriction in the range of motion of the right shoulder, and some mild restriction in the left.
4. Dr Saxby opined that his physical examination did not cause him to change his opinion. He thought the restriction in range of motion in the right shoulder was somewhat more than one would expect from the pathology, "but broadly consistent with restricted abduction and flexion while other motions are relatively well maintained".[16]
5. He opined that Ms Samarkovska was not likely to return to her pre-injury duties. She would be able to return to full-time suitable sedentary or light manual employment as long as she was not required to do overhead, heavy or repetitive lifting. Dr Saxby opined that the roles of receptionist, parking inspector, car park attendant or rover and rental salesperson all appeared suitable.

1. A report was tendered from Dr Barton dated 29 October 2025. Dr Barton examined Ms Samarkovska on 28 October 2025.
2. On examination, Dr Barton found as follows:[17]

"The worker presents as someone who was strongly symptom and disability focused ... At times she tended to limit use of the right arm holding it by her side.

Careful measurement of arm circumference showed the right and dominant arm to be of slightly greater muscle bulk than the left, when measured above and below the elbows.

There was a normal keratinization pattern in both hands. There was no wasting in the small muscles in either hand. There was a normal muscular contour over both shoulders.

Specific examination of both shoulders showed generalised and diffuse tenderness. She demonstrated a near full range of left shoulder movement but always moved the right shoulder a bit less to the range she demonstrated on the left.

Reflexes were normal in the upper limbs. Muscle power was generally reduced throughout the whole of the right arm. There were patches of reduced sensation to light touch in both the left and the right arm in a non-dermatomal and non-neurological pattern. Testing with the Jamar dynamometer showed a result of two on the right and 10 on the left."

1. Dr Barton said that there were a number of findings during his assessment that suggested a degree of overlay, and identified a number of factors which supported that view. He opined that Ms Samarkovska suffered a minor soft tissue problem in the work incident, which would have been expected to resolve quite quickly. He did not see any reason why Ms Samarkovska could not return to her pre-injury duties or other suitable employment on a full-time basis.

1. I find that Ms Samarkovska suffered an aggravation injury to her right shoulder in the course of her work in May 2023. On balance, it appears that pre-existing asymptomatic degenerative change in her right shoulder was rendered symptomatic. Following that initial aggravation, Ms Samarkovska developed adhesive capsulitis in her right shoulder. That condition continues. As a consequence of favouring her right shoulder, Ms Samarkovska has developed some mild symptoms of pain and restriction in her left shoulder.
2. My findings are based on the diagnoses of Mr Chehata. I prefer his opinion, given his speciality as an upper limb surgeon. He is Ms Samarkovska's treating specialist and has examined her on a number of occasions since late 2023. Further, the opinions of Dr Chow and Mr O'Brien are broadly in keeping with Mr Chehata's opinion.
3. It follows that I do not accept the opinion that Ms Samarkovska has developed a substantially non-organic Chronic Pain Syndrome as suggested by Dr Chan and Dr Muir. Neither doctor sufficiently explains why that is the preferred diagnosis.
4. I do not accept the opinions of Dr Saxby or Dr Barton, that the work-related aggravated/injury has ceased. I accept that Ms Samarkovska has experienced ongoing symptoms in her right shoulder since May 2023. Given the continuity of symptoms, I do not accept that the cause of those symptoms has become the underlying degenerative change.
5. I note that Dr Barton and Dr Slesenger opined that there were inconsistencies on examination. Doing the best I can on the whole of the evidence, I prefer the opinions of Mr Chehata, Mr O'Brien, Dr Chow and Dr Saxby that Ms Samarkovska has a significant restriction in her range of motion of her right shoulder, and some mild restriction in the left shoulder.
6. Counsel for the VWA did not submit that Ms Samarkovska's evidence was not credible or was unreliable. Meaning no disrespect to her, I found Ms Samarkovska an unsophisticated witness. She has limited education, yet has worked hard to better herself. She gave evidence in a straightforward manner. I find that I am generally able to accept her evidence as to her pain and restrictions.
7. I find that Ms Samarkovska has sufficiently disentangled the impairment consequences of her right shoulder condition from those referable to her ongoing lower back problem. I do so because I accept Ms Samarkovska's evidence in this regard. Further, I note that following a prolonged absence from work, Ms Samarkovska was able to resume employment in 2017, and continued working until suffering her injury in May 2023. That is, her lower back problems did not prevent Ms Samarkovska from working, or from performing roles that required manual handling.
8. I accept that Ms Samarkovska experiences ongoing pain in her right shoulder which goes into her neck and down her right arm. She also experiences pain in her left shoulder. I accept that Ms Samarkovska's sleep is disturbed regularly, she is not able to drive for prolonged periods, and is restricted in terms of her domestic activities. I accept that Ms Samarkovska is taking Tramadol, Panadeine Forte, temazepam, Panadol, Ibuprofen and Restavit. I acknowledge that she was taking Panadeine Forte for her back injury at the time she suffered her shoulder injury, but her medication use has increased by reason of her shoulder pain and restrictions.

Is Ms Samarkovska permanently unable to earn at least $49,068 per annum in suitable employment because of the impairment consequences of her compensable right shoulder injury?

1. As I have said, I am satisfied that Ms Samarkovska's compensable injury has not resolved, and that there is a substantial organic basis for her claimed impairment consequences.
2. Ms Samarkovska submitted that she has no capacity for suitable employment on a reliable and consistent basis.
3. The VWA submitted that Ms Samarkovska has a capacity for suitable employment and she had not established that she was permanently incapable of earning more than $943 per week. It was submitted that Ms Samarkovska was not motivated to work. The VWA submitted that Dr Saxby's view as to work capacity, with modest restrictions, ought to be preferred.
4. The VWA tendered an IPAR vocational planning report dated 30 January 2024. The report's author was Ms Camelia Putnik, vocational rehabilitation consultant. Ms Putnik said that Ms Samarkovska was assessed to have a number of transferable skills for various employment options. These were, security officer (control room), concierge, security adviser, customer service assistant, customer service assistant (meet and greet), quality officer and customs officer. Ms Putnik recommended a medical case conference be arranged with Ms Samarkovska's treating doctor to assess her work capacity and recovery timeframes.
5. The VWA also tendered a Recovre vocational assessment report dated 17 October 2025. Ms Samarkovska was not interviewed by the authors of that report. The identified suitable employment options were determined based on Ms Samarkovska's vocational profile and restrictions noted in the medical reports.
6. The authors of the Recovre report reviewed various medical reports and noted the following:[18]

"Opinion generally indicates Ms Samarkovska should not return to her preinjury role as a security officer or have a capacity to perform alternative employment, with the exception of Dr Slesenger in July 2024. Mr Chehata recommends Ms Samarkovska avoid lifting over 5kg, performing overhead work activities and should aim for postural variety.

Whilst medical opinion generally does not recommend Ms Samarkovska return to a security guard role or alternative employment, Recovre will suggest vocationally suitable roles that comply with Mr Chehata's recommendations that Ms Samarkovska avoid lifting over 5kg, avoid overhead work and is able to alter her posture. ... ."

1. Recovre identified four possible vocational options, namely building concierge (receptionist), parking inspector, rover (car park attendant) and rental salesperson. Sound computer skills are required for the building concierge and rental salesperson roles. Recovre recommended individualised computer training to upskill Ms Samarkovska for such a role.
2. Ms Samarkovska would exceed $943 per week if she worked:[19]

(a) 27 hours or more as a building concierge (receptionist);

(b) 25.5 hours or more as a parking inspector;

(c) 29.5 hours or more as a rover (car park attendant);

(d) 28.5 hours or more as a rental salesperson.

1. As stated, I generally accept Ms Samarkovska's account of the pain she experiences in her right and left shoulders, and her functional limitations. I accept that Ms Samarkovska enjoyed her work as a concierge, and does not lack the motivation to work. She continues to be certified unfit for any suitable employment by her GP.
2. As I have said, Ms Samarkovska was educated to Year 9. Her work history has generally been in relatively unskilled manual work. She has obtained a Certificate III in Business, a Certificate III in Real Estate and a Certificate III in Security. I accept her evidence that her children assisted her with the computing requirements of those studies. Her work in real estate was of a very limited nature, for a short period, and the descriptor "property manager" is likely an overstatement of her role.[20] On the whole of the evidence, I find that Ms Samarkovska's aptitude for administrative work is very limited.
3. The authors of the Recovre report suggested that Mr Chehata's view was that Ms Samarkovska had a capacity to work with restrictions. Although Mr Chehata did refer to restrictions, his ultimate opinion was that Ms Samarkovska was permanently unfit for any suitable employment.
4. While in theory Ms Samarkovska may have a capacity to work part time in the four lighter roles identified by Recovre, driving to and from work and attending on a reliable and consistent basis are likely to be problematic for her with her bilateral shoulder condition. In making that finding, I have also taken into account Ms Samarkovska's regular sleep disturbance and her need for potent medication on a daily basis. I acknowledge that Ms Samarkovska was already prescribed Panadeine Forte for her back condition at the time she suffered her right shoulder injury; however, she is now taking other medication in addition.
5. I am required to take a "real world" approach to Ms Samarkovska's employment capacity. This requires more than just a physical capacity to engage in certain tasks.[21] In my view, Ms Samarkovska does not have a realistic capacity for work taking into account her age, education, skills and work experience in the context of her incapacity.
6. I find that Ms Samarkovska is permanently unfit for her pre-injury duties and suitable employment by reason of her right shoulder, and consequential left shoulder condition. I accept the opinion of Mr Chehata as to her work capacity. Whilst he outlined various restrictions on Ms Samarkovska's activities, he concluded that she was unfit for any suitable employment on a consistent and reliable basis. Although I do not accept Dr Chan's diagnosis, my finding also accords with his opinion that Ms Samarkovska is unfit for any suitable employment because of the symptoms in both shoulders.

Is the loss of earning capacity consequence of Ms Samarkovska's compensable right shoulder injury "serious"?

1. I find that the permanent inability to undertake suitable employment by reason of her compensable injury is a serious loss of earning capacity consequence. The narrative test is satisfied.

1. Ms Samarkovska is granted leave to seek loss of earning capacity damages. That leave also entitles her to claim pain and suffering damages.[22] It is therefore unnecessary to consider whether Ms Samarkovska's current right shoulder impairment consequences satisfy the statutory threshold.
2. I will hear from the parties on the question of costs.

[1] Plaintiff's Amended Court Book ("PCB") 36

[5] Defendant's Amended Court Book ("DCB") 42

[19] Defendant's statement of calculations dated 18 November 2025, and Transcript ("T") 77

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

[22] Advanced Wire & Cable Pty Ltd and Victorian WorkCover Authority v Abdulle [2009] VSCA 170