Thorneycroft v Victorian WorkCover Authority [2026] VCC 327

"... when judged by comparison with other cases in the range of possible impairments, or losses of a body function or disfigurement, as the case may be, fairly described [as at the date of the hearing] as being more than significant or marked, and as being at least very considerable."

8. I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
9. Subsection s325(2)(h) of the Act provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
10. The judgment of the Court of Appeal in Mobilio v Balliotis & Ors[2] resolved the meaning of "severe". Brooking JA, without suggesting the use of any particular adjective to mark the distinction, said that "severe" was used in the definition as a stronger word than "serious".[3]
11. A Chronic Pain Syndrome can result in an impairment under sub-paragraph (c) if a plaintiff can establish a sufficient causal link between an initial compensable physical injury and a chronic pain disorder which meets the severe criteria of a claim under paragraph (c).[4]
12. In this application, where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of 40 per cent or more, both at the date of hearing and permanently thereafter.
13. Subsections (2)(e) and (f) recite the formula by which loss of earning capacity is to be measured.
14. Subsection (2)(g) requires questions of rehabilitation and retraining be considered in determining whether the 40 per cent loss has been established.
15. I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak,[5] Haden Engineering Pty Ltd v McKinnon[6] and Meadows v Lichmore Pty Ltd[7] in reaching my conclusions.
16. The plaintiff swore two affidavits and was cross-examined. He also gave a very detailed statement to the insurer's agent in December 2022. Also in evidence were medical reports and other material. I have read all the tendered material.
17. The plaintiff's focus was on an organic lumbar impairment. There was also a sub-paragraph (c) application with a diagnosis of moderately severe Chronic Depressive Disorder and moderate Adjustment Disorder with Depressed Mood.[8] The plaintiff claimed to have suffered the requisite loss of earning capacity as a result of each impairment.[9]
18. The defendant's case was that from a physical perspective, it was a very mild injury. The pathology was minor and the consequences of any impairment were not serious.[10] Having disentangled, the consequences of any psychiatric impairment were not severe. The plaintiff retained a capacity for suitable employment, therefore did not suffer the requisite loss of earning capacity in relation to either impairment.[11]

1. The plaintiff is presently aged forty-three, having been born in July 1982. He lives in Werribee with his fiancée, Holly.
2. His first affidavit was sworn regarding injury to his lumbar spine as a result of the repetitive strenuous manual handling and awkward postures while working as a mechanic, firstly, and then as a parts interpreter at the employer's car dealership in Hoppers Crossing.[12]
3. The plaintiff left school in 1997 after completing Year 10. He then worked at various locations, including five-and-a-half years at Super Cheap Auto. In July 2018, he completed a four-year apprenticeship to qualify as a motor mechanic.
4. He had difficulties when growing up and took antidepressants at times. His general practitioner's ("GP") notes detailed various stresses including contact with his children and financial worries. In June 2020, his GP prescribed Lexapro.
5. On 5 September 2018, he commenced work with the employer as a mechanic at Werribee Hyundai. He remained in that position for two years and in 2020, accepted the position of spare parts interpreter.
6. During April 2019, he first noted lower back pain. His job was very heavy and awkward. He saw Dr Rajaee, GP, and was given Panadeine Forte. He saw his GP again for back pain in February 2020.
7. On 10 October 2022, when moving a towbar in the storeroom, the plaintiff turned the wrong way and felt a sharp, stabbing pain ("the incident").
8. The following day, he could barely move. He reported the injury and saw a doctor. He recalled seeing a bulkbill GP, Dr Onari, "very soon after his back finally went in October 2022". Not long thereafter, he was sent for a lumbar MRI scan. He then started seeing GP, Dr Verma, because he felt Dr Onari "didn't care".[13]
9. His WorkCover claim was accepted. In that form he noted "previous back injury changed work position from mechanic to spare parts interpreter".[14]
10. As a result of his back injury and the stress surrounding his pain and limitations, he became seriously mentally unwell.[15]
11. The plaintiff was referred to spinal surgeon, Mr Sheard, who did not think surgery could help, and sent him for pain management with Dr Arvind, whom he saw a number of times. He had been seeing physiotherapist, Russell Thompson, twice a week from 2023, but as at mid 2025, he had stopped this treatment as he just was not getting any benefit from it.
12. He has not worked since the incident, apart from one day in April 2023 when his pain flared badly.
13. As at October 2024, he had daily lower back pain radiating to his right leg, but not constantly. He experienced intermittent numbness and aching in his right shin. If his lower back pain was high, his leg was affected. At its worst, the back pain reached 9 out of 10.
14. He had to lie down every day to gain relief, but even that was uncomfortable. He was lucky to get about 15 minutes of comfortable sitting or standing. He had a walking stick on hand for a flareup but tried not to use it. He walked at a park near his house each day but was very slow.
15. His sleep was "stuffed". His pain woke him. He had disturbing dreams about being injured when lifting something heavy. At times after the injury, he had heard voices in his head. Medication was then keeping them quiet.
16. He was no longer able to go roller blading - an activity he had enjoyed since he was thirteen, when he attended the local park with his mates for hours on weekends. He now did not even talk to his former roller blading friends.
17. He owned his own blades and still had them. Pre injury, he went roller blading now and again but was not doing it every weekend.[16] He did not have any other physical hobbies.[17]
18. He really got into gardening when he was older and loved it. He enjoyed general maintenance and keeping the garden tidy. He and Holly had just built a new house when he was injured. He could hardly do anything there now and required help from his neighbours and family.
19. He currently lives in a property with a very small backyard which is just a strip of grass about 12.5 x 6 metres. There is not really much gardening to do. They have a garden at the front. He told Dr Sabetghadam in February 2025 that he did not have a garden in his four-bedroom house because the garden had not been put in then. He organised it, but he was not involved in setting it up.[18]
20. His intimate life was non existent due to back pain.
21. Holly did so much at home it was embarrassing. There were many things he would like to do, but he could not do much at all. Every now and again he washed some clothes.
22. He has to ask Holly for help when showering, dressing and with his personal hygiene.[19]
23. He was smoking more cigarettes due to stress.
24. He loved working as a mechanic and enjoyed cars and working on his mum's car from the age of eleven. There was no way he could do that now. He was really worried how he would ever return to work.
25. During 2024, Dr Verma was certifying him as having no work capacity. Dr Singh had told him that he was not to drive, given his mental health, and also told him he was unfit for work for the next twelve to twenty-four months.
26. The pain management course under Dr Arvind had run its course. He was not sure what she planned to do next. Spinal cord stimulation had been discussed as a next step; however, he was not sure whether he would be willing to have this procedure.[20]
27. He remains under the care of Dr Verma, whom he sees every few weeks. Dr Verma provides prescriptions and certifies him unfit for any work.[21]
28. Funding for psychological treatment has run out. He has applied for further funding, having last seen Dr Gupta in late 2024. He still sees Dr Singh, psychiatrist, each month, who prescribes some of his medication.
29. After Dr Tippur performed a radiofrequency denervation in April 2025, the plaintiff experienced about a month's improvement in pain; however, his back is now back to its earlier level of pain and restriction. On the post procedure visit, he told Dr Tippur the pain levels were starting to return.
30. He experiences pain in his lower back, also down his right leg occasionally. It just comes and goes and is not constant. Pain has gone down into his legs since the injury.[22] It became less frequent since around 2024 and by January 2025, that pain had gone, as had any pins and needles in his legs. He agreed there was certainly a physical improvement.[23]
31. Since December 2025, he has been able to walk a couple of times for a long extended period like 45 minutes.[24]
32. His anxiety affected his ability to drive as he became anxious every time he opened the door to go out. When he got to his car sometimes, he froze up, but knew it was not good to stay in the house all the time. Sometimes his back has an effect on his driving, not just how he feels mentally. Sometimes the pain is a factor, but when the pain is a factor, he does not go out.[25]
33. He has not been able to return to any of his hobbies like car mechanic, roller blading or significant gardening due to back pain and his mental health, independent of each other.
34. His current medication regime is Gabapentin - 600 milligrams twice a day; Palexia SR - 50 milligrams twice a day; Quetiapine - 100 milligrams each night; Prazosin - 1 megagram twice a day; Risperidone - 2 milligrams each night; Celebrex - 200 milligrams each night; Amitriptyline - 25 milligrams each night; Duloxetine - 125 milligrams daily; Agomelatine - 25 milligrams each night, and Pantoprazole - 20 milligrams each morning.

1. Dr Verma feels that maybe the medication and lack of exercise are related to his weight gain. He is not over-eating. His appetite is very down. On average, five days a week he skips all meals except dinner and even then, his portions are very moderate.
2. He recalled weighing around 100 kilograms when injured in 2022 and now weighs 173 kilograms.[26] He is now getting help from Dr Verma through weightloss injections. By September 2025, he had had five injections.
3. Having been told Dr Verma recorded his weight on 15 August 2022 at 140 kilograms, he said he thought his weight used to fluctuate between 100 and 110 kilograms for as long as he could remember. He was potentially mistaken about what he had deposed. He confirmed his weight had reached 173.6 kilograms but agreed he had reduced his weight with medication and treatment.[27]
4. He agreed he now weighed somewhere between 16 to 18 kilograms heavier than at the time of injury and his weight had improved with Ozempic.[28]
5. His weight steadily increased after the incident.[29] He accepted that Dr Verma recorded his weight on 13 April 2023 as 140 kilograms and that there had been no change in his weight six months after his injury. His weight increase was gradual.[30]

1. He would describe his mood as depressed most days. Some days he is better than others. Occasionally he has days where he struggles to get out of bed but tries to push himself through and get up.[31]
2. He is notably anxious most of the week. He mostly worries about leaving the house as he thinks it has become his safety zone. He pushes to get himself out, at least for a walk. He knows it is bad to succumb and stay inside all the time. Each day he makes himself get out and walk around the small block on which he lives.
3. The issue leaving the house is mainly when he has to go out by himself, but he pushes through it.[32]
4. Dr Singh had told him there had been an improvement recently in his mental condition. It is now changed, but previously he was hearing voices, and he was concerned he was going to crash his car, but now he drives short distances locally and is able to be a passenger.[33]
5. He sees Dr Singh every two to three weeks, last seeing him a couple of days prior to the start of the hearing. While Dr Singh then recorded "no voices", he did tell him he still heard voices and that is why he was still keeping his medication the way it was.[34]
6. When he saw Dr Singh on 13 October 2025, he no longer had suicidal thoughts. He still had the voices, but they were quiet, and he had learnt how to push them back.
7. He agreed he told Dr Singh on 26 October and 10 November 2025 that his sleep was improved because he was on sleeping medication. He also told him his appetite was coming back, but he did not know why it was improving. He denied he reported "no voices". He told Dr Singh he had no suicidal thoughts, he was anxious and that he was mildly depressed. He would say he had no problem with his memory.[35]
8. Every time, he tells Dr Singh he hears voices.[36]
9. It is not that his ADLs were improving when seen by Dr Singh on 10 November 2025, it was just he was trying to push through to do more around the house. He tried to clean and do domestic chores.
10. His sleep had recently improved when seen by Dr Singh on 21 November 2025 and he was pushing through with his ADLs. Being more active makes him feel better about himself, as does getting involved and helping out his partner "of course".[37]
11. He agreed, as part of his recovery, he was getting more active so his mind could improve. He was very keen to do that as he did not like seeing Holly do everything and it was humiliating. From a personal self-esteem perspective, it made him feel better to get involved.[38]
12. He had told Dr Singh on 21 November 2025 that things were stable in his life, that he was still anxious and mildly depressed. This was the common theme.[39]
13. As at 10 December 2025, he had lost 10 kilograms in recent months, during which he had been trying to be more active and get involved, and assist more around the house.[40] That situation was improving his mental state for the most part.[41]
14. On 22 December 2025, and most recently on 19 January 2026, he told Dr Singh that his sleep was better, his mood was stable and his appetite was better, but most days he would not eat until dinner as he is not hungry and does not have an appetite.[42]
15. He denied he told Dr Singh on 19 January 2026 he was not depressed, because he still is.[43]
16. He disagreed the difficulties he had experienced and the things he had stopped doing that he would like to do were largely because of his mental state. "No, the pain."[44]
17. He can drive local distances to the local supermarket, maybe 5 kilometres. He hopes his ability to drive will improve.[45]
18. What had prevented him from driving was largely his anxiety, knowing he was going out away from his house. When it was suggested the big thing that was preventing him from actually doing anything or being able to get back to work was anxiety or leaving the house, he said it was "The anxiety and the pain, yes".[46]
19. He does not socialise because of his mental restrictions and the pain. He has no friends locally, so he has to drive a fair distance to see them, which involves sitting for extended periods. Holly could take him if he needed to be somewhere.

1. He has not been well enough physically or mentally to look for and engage in any work. He has taken up building Lego to keep himself occupied. He can do it at his own pace for about an hour a day. He has made friends online with other Lego enthusiasts and often builds with them online.
2. He agreed he wanted certainly to get back to some form of work because he appreciates that is a good way for him to help recover.[47]
3. He flew to Darwin in February last year to see his daughter. He pushed through the anxiety or pain to see her. He has a similar desire to get back to work. If he was able to find a role that was suitable, he would certainly give it his best shot and try to get involved. He would do what he could. He had even spoken to his old boss about doing work as a sort of parts interpreter from home, "anything".[48]
4. He had worked in customer service retail for five-and-a-half years before working for the employer and certainly had experience in that sector. To a certain extent that was something he felt he could do.[49]
5. When seeing his psychologist in October 2023, he was open to exploring other options within the automotive area. That is still his frame of mind; he would love to go back to the employer. To a certain extent he could do that sort of job, providing he could adjust his own postures.[50]
6. He felt he could do a sales representative job in the automotive field or parts customer service operative. It would be too far to drive to a job in Brooklyn twenty minutes away. Even driving that distance, the pain is starting to kick in. He would try, as he had for his daughter's birthday, if he had the opportunity to do some work in Brooklyn. He thought he would be able to do that sort of job to a certain extent.[51]
7. He would be able to cope with selling vehicle products, determining customer requirements and advise on product range, a job like parts interpretation. He could cope with a sales order from a customer. Frequent sitting at a computer was an issue. He had basic computer knowledge and used a lot of those skills with Lego. He can certainly navigate his way around Lego.[52]
8. To the extent he was not trained using IT facilities, he would be willing to be trained. It would be helpful for him to alternate between postures when working.[53]
9. When working for the employer, 50 per cent of his work was computer based. He is familiar with using a computer, and computer use would not stop him from doing that job. To a certain extent, he felt his pre-injury job was something he could do and would give it a decent shot if he had an opportunity. The other half of his old job was manual labour, lifting, preparing orders, and doing stock control - handling automotive parts. It was something he felt he could do.[54]
10. He would not be able to do his old job essentially in the capacity he used to because of the frequent sitting, walking, lifting and standing. He would just get sore walking small distances around the house and has to lie down; it is the only way he can ease his pain. That is why he contacted his boss to see if there was any work he could do from home because a lot of it is email based. He offered to take his computer there to have the programs loaded so he could work from home. His parts interpreter boss used to work from home on a regular basis.[55]
11. He has a Certificate III from TAFE through an employment agency, permitting him to work in retail.[56]
12. He is ticketed to operate a forklift. Doing that job, he would probably be sitting for more than an hour at a time. To a certain extent he would get breaks. It is moreso his pain working a forklift, climbing in and out of it, driving it around and sitting for prolonged periods.[57]
13. He would give a job in that role a decent shot if it were available in Altona. However, when he tried just one day back with the employer in April 2023, his pain flared up again - sitting and standing around the computer.[58]
14. He would be able to try a forklift role. He would be expecting it to be within his limits. He would be able to get some work at a job like that.[59]
15. He would not be able to constantly sit on a forklift. He would struggle lifting from the floor, but from the waist was easier. Floor to waist would be the only real issue.[60]
16. He agreed his back had improved a little bit since 2023 and his mental state had improved. He was no longer feeling the pain down his legs, and he was in a little bit better physical shape.[61]
17. He would be able to try working as a pathology courier. He could do that to a certain extent. He has problems as a driver. He can sit longer as a passenger because he can adjust more when the pain starts kicking in - fifteen minutes, sometimes half-an-hour, it varies.[62] Constant sitting as a pathology courier stuck in traffic would be a problem.[63]
18. His pain increases if he is not in motion. If it increases, he sits down a bit. Working as a parking inspector, he would have the ability to mix his tasks. It would help if he were alternating between sitting and standing. He felt as though he could undertake this role with changing postures.[64]
19. Working as a parking inspector, there were times he could not constantly walk and by the time he arrived home, he would be stuffed and have to lie down.[65]
20. He has not made any attempt to get a job since his payments stopped because he is still employed by the employer - "It means if I ever get to a stage, I'd like to go back there." He has not looked for work anywhere else because he is on the books and because of the pain issue.[66] He is not getting any income whatsoever and he has not taken any active steps to try and find work other than his 2023 attempt. He agreed being on the books did not preclude him from trying to find some work, but he had tried to get work from home.[67]
21. The pain is always the main issue stopping him from going out and applying for some jobs to see if he could give it a shot.[68]
22. He just pushed through to see his daughter in Darwin. It was a struggle, but he managed. He could try, if he were motivated, to go out and try and get some work and convince himself to push through to give it a try. He guessed there was nothing stopping him from applying for work.[69]
23. He is able to lift up to 10 kilograms.[70]
24. He would not cope with frequent walking as a sales representative as they would have some sort of targets. He would not cope with the morning commute from Werribee to Brooklyn of about 40 minutes.[71]
25. He has not looked for work because the pain is his main issue. Jobs he had thought about, like those that have been suggested, involve constant sitting, standing and driving. After fifteen to twenty minutes, he is in pain and needs to lie down or those jobs have quotas, like especially courier drivers, they all have time limits.[72]

1. In March 2023, Dr Verma referred the plaintiff to a dietician for weight issues. He also referred him to a psychologist for an opinion and management of his emotional and mental wellbeing on the background of a low back injury, noting he had a history of depression which had resurfaced due to this episode.
2. Dr Verma reported to the insurer in April 2023.
3. The plaintiff told him that his weight pre injury was around 130 kilograms. His weight was then 140 kilograms. He had gained about 10 kilograms since his injury.
4. Dr Verma referred the plaintiff to psychiatrist, Dr May Matias, in November 2023, for opinion and management of anxiety, depression and auditory hallucinations which were telling him to harm himself.[73]
5. On 25 August 2025, Dr Verma last reported to the plaintiff's solicitors.
6. He thought the plaintiff's condition had not been substantially stabilised. There were continuing adjustments to analgesics, neuropathic agents, antidepressants and antipsychotics. Interventional pathways were still active, noting the diagnostic medial branch block produced good, short-term relief and led to radiofrequency denervation. That produced 50 per cent pain reduction in March 2025. Spinal cord stimulation had been raised as a potential next step for neuropathic back pain.
7. The plaintiff's functional state was fluctuating, and his psychiatric status was not yet steady. He did not anticipate substantial stabilisation to occur in the next twelve to twenty-four months.
8. The incident was a significant contributing factor to the current impairment of the plaintiff's lumbar spine injury based on the temporal relationship, consistency of presentation, treatment course and lack of alternative cause.
9. As a consequence of the impairment and injury, the plaintiff was likely to be precluded or restricted in relation to activities involving lifting, bending, twisting, stooping, prolonged sitting, standing or walking for the foreseeable future.
10. The plaintiff was precluded from performing his pre-injury duties and also suitable employment in the open labour market for the foreseeable future.
11. The plaintiff had no current capacity. Hypothetical only (contingent on sustained significant improvement).
12. Suitable work was highly self paced, home based, very low cognitive load administrative data tasks with as tolerated schedule. Starting two to four hours a week, only if stable, for six to eight weeks, then consider slow graded increments with a range of restrictions.
13. There were likely to be material restrictions in relation to social, domestic and/or recreational activities.
14. Future treatment was required both for physical and mental health.
15. The prognosis for the physical injury was poor, and the anxiety, depression and Post-Traumatic Stress Disorder ("PTSD") features remained clinically significant despite treatment.

Mr Philip Sheard, orthopaedic and spinal surgeon

1. Dr Verma referred the plaintiff to Mr Sheard in April 2023.
2. The plaintiff was then describing pain in the lower back more to the left, present most of the time, worse with prolonged postures.
3. MRI showed some mild disc degeneration at L2-3, L3-4 and L4-5 with no nerve root compression.
4. He gave the plaintiff some general advice in terms of keeping his weight as low as possible, core muscle exercises such as Pilates and stopping smoking. Further investigations were arranged. It was unlikely there would be a surgical option for the plaintiff, in which case he would refer him to one of his pain specialists.
5. Having seen the plaintiff on 7 June 2023, he advised Dr Verma that flexion/extension views were all normal. The CT scan showed no evidence of higher uptake, showing nothing surgical to be done, and he referred the plaintiff to a pain specialist for injections, radiofrequency.

1. On 31 July 2023, Advance HealthCare carried out a multidisciplinary pain management assessment and prepared a multidisciplinary pain management review report on 11 October 2023 and discharge report thereafter.
2. Dr Verma was advised by Advance Healthcare in June 2024 that a biopsychological model of care was recommended. While the plaintiff had made progress in the intensive pain management program, he experienced plateaus, prompting consultation with a psychiatrist for mental health management.
3. An additional ten psychology sessions were recommended.

Dr Priya Arvind, specialist pain medicine physician (Advance Healthcare)

1. Dr Arvind wrote to the insurer on 2 January 2023 requesting approval for the plaintiff to undergo a caudal epidural steroid injection.
2. Dr Arvind wrote to Mr Thompson, physiotherapist, in July 2023 thanking him for referring the plaintiff. She noted the plaintiff presented with a history and examination suggestive of an axial discogenic low back pain with some neurological features secondary to a work injury.[74]
3. Dr Arvind advised Dr Verna on 10 April 2025 that there had been a reduction in pain levels from 8 out of 10 to 4 out of 10 following the radiofrequency denervation procedure. The plaintiff was not currently capable of returning to previous administrative duties due to persistent functional limitations.
4. Dr Arvind wrote to the plaintiff's solicitors on 4 August 2025 answering a number of questions relating to the plaintiff's mental health issues.
5. In her view, the plaintiff's condition had substantially stabilised.
6. The plaintiff had a past history of depression and reported that the injury had had a significant impact on his mental health.
7. She would like for the plaintiff to return to work in a slow-paced pattern; however, his mental health has been the main barrier impacting this.
8. As a consequence of the plaintiff's psychiatric injury, he is likely to be precluded from pre-injury employment, but not suitable employment, for the foreseeable future.
9. She would consult an occupational rehabilitation provider and get an assessment done for this, as any job taking into account the plaintiff's capacity would be okay. She would start him with two to three days at three hours a day and gradually increase.
10. The plaintiff had reported enhanced engagement in social interactions and a gradual return to some of his pleasurable activities. Sleep patterns had improved. He had continued to receive psychological support which he believed was beneficial. He had reported fluctuating levels of pain, impairment and distress during the follow up period.
11. The plaintiff noted that he had made progress in the rehabilitation program and was better able to manage his pain compared to his initial assessment. He acknowledged ongoing mental health issues but felt an improvement compared to his initial assessment.

1. Dr Singh first saw the plaintiff on 22 March 2024.
2. The plaintiff denied any past history of psychosis, mania, phobia, OCD and hypochondriasis.
3. Following the incident, the plaintiff became quite stressed and anxious as he developed severe pain. He had seen a GP and was referred to a pain doctor, physiotherapist and pain medications. He was told that he had a major issue with his lumbar spine.
4. The plaintiff reported that post injury, he had developed mood congruent negative thoughts and voices to harm himself. He was hearing voices on a daily basis, which were derogatory and negative in nature.
5. As at May 2024, the plaintiff suffered from chronic back pain syndrome, an Adjustment Disorder with anxiety, mild depression and "?" PTSD symptoms.
6. The plaintiff then had no capacity for anything, and it was too early to comment about his return to work.
7. Dr Singh most recently reported in May 2025.
8. He noted the plaintiff initially presented with chronic back pain, disc prolapse injury, issues with injury at lumbar and L2/3-4, occasional flashbacks, nightmares, poor sleep, anxiety and panic attacks irregularly, anxiety all the time, low motivation, had suicidal thoughts but no plans.
9. The plaintiff is taking Agomelatine, Tapentadol, Celebrex and Nurofen.
10. The plaintiff still had symptoms of anxiety and depression, chronic pain and PTSD. He had nightmares regularly and still had suicidal thoughts.
11. The plaintiff attended regularly between 22 March 2024 and 4 July 2025.
12. The plaintiff was being prescribed Duloxetine, 90 milligrams daily; Risperidone, 3 milligrams nocte; Seroquel, 100 milligrams nocte; Endep, 25 milligrams nocte and Prazosin, 2 milligrams nocte.
13. The plaintiff's WorkCover injury had affected his mental health condition. His diagnosis is Chronic Pain Syndrome with Generalised Anxiety and Mild Depression with psychosis and "?" PTSD symptoms; however, he was not sure about the plaintiff's psychotic symptoms and whether they relate to his work injury. The workplace injury "can be a contributing for in developing his psychological symptoms".
14. The plaintiff's mental health is not stabilised, and he was not sure it would be stabilised soon as he had not shown any progress and change in his mental health condition. The plaintiff never accepts that there is any progress with any medications.
15. It appears unlikely that the plaintiff will return to his pre-injury duties. The main work decisions should be from the plaintiff's pain specialist and his GP as his primary injury is chronic back pain.
16. At present, the plaintiff is not fit to return to his work, and it is too early to comment about his return to work, or training or any other education as be is currently unfit to perform any task for the next twelve to twenty-four months.
17. The plaintiff needs active treatment and needs to see another psychiatrist for his treatment, as he was not noticing any change in the plaintiff's condition in the last fifteen months.
18. The plaintiff would benefit from seeing a few people, namely, another psychiatrist, a GP, a pain specialist and a spinal specialist.

1. Professor Bittar saw the plaintiff on 2 August 2025.
2. After an initial minor back injury, the plaintiff was moved to a role in spare parts. His injury occurred on the said date.
3. On examination, the plaintiff described constant low back pain, which was described as sharp, stabbing and aching. The pain is located across the mid and lower lumbar region bilaterally but sometimes was worse on the right. He described the average severity as a 4 out of 10, with a maximum of 7 out of 10. He also described occasional pain radiating into both legs. He described unpredictable episodes of leg weakness, such as being unable to lift his leg to get into a car, or his right leg giving way, causing him to fall.
4. On examination, there was severe restriction of lumbar spine flexion with moderate restriction of lumbar spine extension. Flexion was found to be more painful than extension. There was minimal tenderness and no muscle spasm on palpation of the lower back. Neurological examination of the plaintiff's lower limbs did not reveal any evidence of radiculopathy or myelopathy. There was no abnormal illness behaviour.
5. Employment has been a significant contributing factor. Specifically, the plaintiff's repetitive awkward and often heavy workplace activities undertaken during the course of his employment and, in particular, his activities undertaken on the said date, remain significant contributing factors to his ongoing pain, disability and treatment requirements.
6. The diagnosis is an aggravation of lumbar spondylosis; employment a significant contributing factor.
7. The plaintiff is incapacitated for his full pre-injury duties as a result of his work-related spine condition. Taking into account his age, education, training, skills and work experience, as well as the nature and severity of the condition, the plaintiff does not have any realistic capacity for suitable employment. His total incapacity for work is permanent.

1. Dr Horsely saw the plaintiff on 21 August 2025.
2. The history was of injury in the incident.
3. The plaintiff then complained of chronic back pain that varies on the visual analogue scale from 1 to 6 out of 10, but most of the time, the pain is 4 out of 10. The pain is located in the lower lumbar spine and radiates bilaterally, paraspinally. Infrequently, he experiences left leg pain that radiates posteriorly to the popliteal fossa. When this occurs, it can last for 8 to 10 minutes.
4. Examination of the lumbar spine revealed the plaintiff's significant body habitus, a loss of lumbar lordosis and mild tenderness on light touch palpitation in the lower lumbar spine. There was very little movement in the lumbar spine.
5. The plaintiff probably sustained a soft tissue injury to his spine in the incident. He has gone on to develop a Chronic Pain Syndrome. His predominant disability relates to his mental health. There is a significant psychiatric disability. He has gained 50 kilograms which has further impacted upon his self esteem and self confidence.
6. The plaintiff's prognosis for a return to work directly relates to his mental health. It would need to stabilise. His weight needs to be proactively managed, and his functional tolerances improved before he could consider returning to work. This all relies upon his mental health and advice from his treating psychiatrist.
7. On the basis of his back condition alone, the plaintiff is permanently unfit to return to his previous role as a motor mechanic or spare parts interpreter. The critical physical demands are beyond his capacity.
8. Putting aside his mental health and just considering his back condition, he will need to return to a work role that is more sedentary. It will need to be more customer service focused and fit within her suggested physical restrictions.
9. The plaintiff presented with no current capacity for work from a physical perspective alone - his functional tolerances are not compatible with a sustainable return to work.
10. None of the roles suggested by Dr Sabetghadam were suitable. However, ultimately once the plaintiff's weight decreases to a more normal level, his self esteem and confidence improve his mental state stabilises and his functional tolerances improve with a more comprehensive home-based exercise program, she felt those roles would probably be the goal.
11. The plaintiff does not have the physical capacity to sustainably and reliably return to work, even on a part-time basis, within the restrictions she suggested. His primary disability relates to his psychiatric disability. She relied upon her psychiatrist colleagues for expert opinion.
12. If the plaintiff's mental health did improve, then he will require retraining and upgrading of skills to move back into the workforce.
13. Dr Horsley was later asked to comment on whether the plaintiff's pain was substantially organically based. On the basis of the radiology and clinical examination, she would need to defer to her pain management specialists to tease out the nature of the plaintiff's chronic back pain, in the setting of his very significant psychiatric disability and physical deconditioning. On the basis of her assessment, the plaintiff's primary disability is his significant mental health issues.

1. Dr Weissman saw the plaintiff on 25 August 2025
2. The plaintiff described his emotional state, mood state and morale and spirits as "down". He said that that he feels depressed and anxious and when asked if he feels worried, he said "Yes, it's there, but I try not to". He rated his mood state 3 out of 10, on average.
3. The plaintiff has sleep disturbance with initial and middle insomnia due to pain and discomfort. He experiences lower backache when he rolls over in bed. For a period of time, he was experiencing bad dreams about the incident itself (the injury) but not anymore. "It's been a while ... but not really"- in terms of ongoing suicidal thoughts.
4. On examination, there was no current suicidal ideation, plan, or intent. However, the plaintiff has experienced previous suicidal ideation/thoughts when he has experienced command hallucinations.
5. The plaintiff came across as open, candid, credible, and a genuine historian. He openly told him about his past polysubstance and forensic history.
6. The plaintiff is currently suffering from a moderately-severe, chronic Major Depressive Disorder with anxious distress and at least auditory command pseudo hallucinations, relevant to his work injury. Complicating his severe depressive syndrome, over the last year, has developed auditory pseudo hallucinations of a command nature, if not hallucinations proper. The latter represents at least quasi/pseudo psychotic phenomena.
7. The plaintiff also experienced intermittent suicidal ideation with the command hallucinations
8. Due to the nature, severity, extent, and chronicity of his employment-related psychiatric conditions and mental injuries, the plaintiff remains totally psychiatrically incapacitated for all work.

1. Dr Ho saw the plaintiff on 6 June 2023
2. The plaintiff then complained of pain in his lower back and a total incapacity for work.
3. Clinical examination revealed reasonable range of lower back movements but there was apprehension with active movements. The plaintiff was able to sit on the couch with flexion greater than on the clinical examination.
4. From the history, the plaintiff most likely sustained a muscular ligamentous soft tissue strain in the lower back that had resolved since the initial injury, but he appeared to have progressed into a Chronic Pain Syndrome with reduced fitness and function of his lower back.
5. The plaintiff had far better capability than he believed or perceived and he had capacity for a return to work with the following restrictions: avoid heavy lifting in excess of 5 kilograms; avoid repeated strenuous bending and twisting at his lower back; avoid heavy pulling and pushing, and regular change of posture.
6. To assist with the plaintiff's return to work, he would recommend a graduated return to work plan, commencing on four hours, two days a week. Thereafter, the plaintiff is to increase to four hours, three days a week, and subsequently, four hours, four days, and four hours, five days, at weekly intervals, so he is able to get into a routine on a daily basis.
7. A graduated return to work is fair and reasonable.

1. Mr Carey examined the plaintiff on 3 June 2024 for the purposes of an impairment benefits application. He allowed a 10 per cent whole person impairment.
2. On examination, the plaintiff complained of similar pain to what was experienced directly after the incident; however, not to the same intensity. The pain was in the left lumbosacral region, shooting out to the left iliac wing. There were no current left leg symptoms. Over the last twelve months or so, the plaintiff had developed constant right shin and occasional calf discomfort.
3. On examination, there was some diffuse tenderness over the lumbar spine to the left and into the loin and upper buttock. There was no such tenderness on the right. Active flexion was such that that the plaintiff barely moved - the lordosis was preserved and there was some underlying palpated paravertebral spasm. Extension and indeed all other movements were almost zero, those movements occurring either at the hips or at the thoracolumbar junction and above.
4. Strength appeared normal in all lower limb muscle groups, and pinprick was normally perceived over both lower limbs. Seated, straight leg raising was 90 degrees on the left with no tension signs. On the right, it was significantly less, with some discomfort produced in the right buttock area. Reflexes at the knees and left ankle were brisk, but the right ankle jerk was absent, only appearing with reinforcement.
5. The diagnosis was ongoing low back pain and right lower limb symptoms, now with evidence of radiculopathy.

1. Dr Doig examined the plaintiff on 8 January 2025.
2. The plaintiff was then complaining of constant, lower back pain, moreso on the right side. He was asymptomatic in the lower limbs.
3. On examination, the plaintiff walked slowly into the consulting rooms with no evidence of a limp. His spine was nontender with no evidence of deformity. He could only forward flex approximately 20 degrees to mid thigh level with reduced lateral flexion, moreso to the right of 10 degrees, and only 10 degrees of spinal extension. Rotation appeared easier, however, did produce lower back discomfort. Hip examination was satisfactory. Straight leg raising was reduced bilaterally as a result of lower back discomfort. The nerve root tension signs however were negative and there was no focal neurological deficit of the lower limbs. The plaintiff could walk on his heels and toes satisfactorily.
4. The plaintiff presented with a chronic pain condition affecting his lower back with multi-level degenerative disc disease and no evidence of radiculopathy in the legs. His apparent functional restrictions far exceeded the identified pathology on the medical imaging.
5. The plaintiff also appeared to be suffering from a significant secondary psychological condition which is out of his area of expertise and should be clarified with appropriate treating practitioners.

1. Dr Sabetghadam examined the plaintiff on 29 January 2025.
2. The plaintiff commenced working for the employer in 2020 and reported a back problem that year and took a week off work before transferring to a modified role as a sales representative in the spare parts shop where he was no longer required to use tools. He was working there at the time of the subject injury.
3. On examination, the plaintiff complained of lower back pain, and stated he occasionally experienced pins and needles in his right foot.
4. The range of lumbosacral spine motion was inconsistent between the formal and informal examination, with range of motion unremarkable during the informal examination. The plaintiff complained of tenderness over the lower back non-specific to any anatomical landmark.
5. Based on the provided history, the examination, investigation reports and the AMA Guides to the Evaluation of Work Ability and Return to Work ("the AMA Guides"), the plaintiff has capacity for work with restrictions, limitations and modifications. The concepts of risk, capacity and tolerance were also considered.
6. The plaintiff should avoid squatting, kneeling, walking on even surfaces, climbing steps, stairs and ladders and working in confined spaces. As he has not worked for a long period, an accelerated return to work program was recommended, initially commencing work part time four hours a day and then gradually increasing to full time in four weeks, with increments of an hour a day every week. The plaintiff may not tolerate full-time work, and it will depend on the rewards of his work. At any stage of his return to work program, he should declare his maximum tolerance, and it would be his practical hours of work.
7. In light of restrictions suggested, the plaintiff could work as a sales representative, warehouse manager, infringement notice officer, traffic controller, ticket controller, parking inspector, forklift operator, Uber driver, delivery driver, spare parts, pathology driver and light assembly worker.
8. Based on the material provided, the plaintiff's condition may have been a temporary exacerbation of a pre-existing condition which was anticipated to subside to the residual level. His current heightened pain and disability perception and poor tolerance are attributed more to psychosocial factors and his high body mass index.
9. The plaintiff is on a cocktail of psychotropic medications. Uncertain about the scientific and objective basis for a diagnosis of PTSD, the plaintiff should be referred for an evaluation by another psychiatrist to determine the work-relatedness of that condition, as it fell outside his area of expertise.
10. Based on the material available, engagement in a weightloss program and core strengthening exercises was recommended.
11. There was a re-examination in December 2025.
12. Since earlier seen in April 2025, the plaintiff underwent nerve ablation at St Vincent's Hospital. He reported the procedure was effective for about three weeks to a month, after which his symptoms recurred. He reported experiencing lower back pain and stated he occasionally experienced pins and needles in his right foot.
13. The plaintiff again said he aspired to return to work once his back pain improved. There were similar findings on examination, and the same range of jobs were suggested.
14. Noting the Nabenet September 2025 employment report and based on the AMA Guides, considering only the plaintiff's lower back condition, on the scale of medical probability, he had a capacity to engage in the roles of sales representative, parking inspector, forklift operator, delivery driver, pathology courier and product assembler.
15. However, in terms of work as a product assembler assembling motor vehicles, prolonged sitting could be probably a challenge. That related to tolerance rather than capacity. If the plaintiff chose to perform this work, there was no risk to him he could do it.
16. Based on the AMA Guides, the plaintiff had the capacity to work full time; however, due to his other medical conditions, including his psychological health and high body mass index, he may not be able to work full-time hours, but he could do part time at least.
17. However, hours of work are purely related to the plaintiff's tolerance and could be different on a day-to-day basis. An accelerated return to work program was again recommended, as the plaintiff had not worked for a prolonged period.

1. Dr Schutz examined the plaintiff on 24 June 2024.
2. He took a detailed history of the plaintiff's psychiatric issues prior to the incident and his treatment and restrictions thereafter.
3. The plaintiff reported that in the last two months, his pain has been constant down his right knee and his leg. He could lose feeling in his legs. He reported there were days where he barely got out of bed and was unable to tell what worsened the pain. He reported that if he became upset or stressed, there was no change in his pain. His pain affected his sleep.
4. The plaintiff reported that he has felt sad and depressed and at times felt "ready to go, sitting in the garage with a noose". However, thinking of his children and nieces was a protective factor. He had voices inside his head saying negative things, telling him to kill himself. He reported that he tried not to act on this.[75]
5. The plaintiff's psychiatric conditions were best described as a moderate Adjustment Disorder with Depressed Mood. There was insufficient evidence of a separate psychotic disorder, including schizophrenia or schizoaffective disorder, nor was there evidence of a substance use disorder. The description of voices does not clearly reach the threshold for hallucinations but can be considered to be some form of a perceptual disturbance.
6. The plaintiff described lowered mood, loss of interest and loss of enjoyment. He reported concentration difficulties and negative ruminations. There was no evidence of any significant anxiety symptoms, including post-traumatic symptoms.
7. He doubted whether the plaintiff would benefit from any further psychological treatment. He had done a pain program and did not appear to be psychologically minded.
8. The plaintiff's injuries can be considered stable.
9. The plaintiff has some work capacity in the realm of 60 per cent in any role for which he has training and experience and for which such training can be provided.

1. Kimberley Sayers, osteopath and rehabilitation consultant from Nabenet, provided a worksite assessment and labour market analysis for the range of jobs suggested by Dr Sabetghadam in February 2025 and the approximate wages in relation thereto.

1. While there was a specific incident on 10 October 2022, the "actual case" was a course of employment case.[76]
2. The plaintiff's accepted claim related to "putting stock away and felt stabling pain" on 10 October 2020. He also noted on his Claim Form - "had a previous back injury changed work position from mechanic to spare parts interpreter."
3. The Employer's Injury Claim report, while answering "No" to whether the worker had a similar injury before that, relates to this injury (10.10 moving stock) noted "worker known to have had back pain in the past and has been managed with this in mind. Role was changed from mechanic to parts in December 2020 because of this."

1. As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[77]

"... the weight to be attached to the plaintiff's account of the pain experience will, of course, depend upon an assessment of the plaintiff's credibility."

2. As Chernov JA said in Dordev v Cowan & Ors,[78] in this type of case, a plaintiff's credibility is relevant not only to whether his evidence should be accepted, but it is also relevant to the reliability of the medical evidence, because the opinions of the doctors are essentially dependent on the credibility and reliability of the history given to them by the plaintiff.
3. The opinions of medical witnesses and other experts depend upon what the plaintiff has told them and upon how the plaintiff behaves on examination and testing.
4. Accordingly, in this case, what appear on their face to be medico-legal opinions supportive of the plaintiff's application, must be looked at in the light of my views as to his credit.
5. The defendant submitted the plaintiff's overstatement of his weight gain post injury compared to the contemporaneous records, coloured his evidence as far as accepting him as a witness of truth.[79] In those circumstances, there ought to be reservations about accepting what he says about his pain and the extent to which it restricts him.[80]
6. It was submitted on the plaintiff's behalf that he was a stoic, having had the good sense to earlier change his work role "but in the end, he ended up having to do some heavy lifting which put him off work."[81]
7. I had some concern as to the reliability of the plaintiff's evidence and his tendency to exaggeration at times. In particular, he clearly overstated his weight gain due to inactivity related to his incident injury. His description of pain to some examiners such as Professor Bittar was inconsistent with his viva voce evidence of improvement and resolution of leg symptoms. However, to his credit, the plaintiff was prepared to concede he had the experience and ability to do a range of the suggested jobs.

1. There have been no particularly significant findings on the investigations carried out.
2. The October 2022 MRI report described "bone and disc degenerative changes in the lumbar spine with relatively minor thecal and nerve root encroachment".
3. Treating orthopaedic surgeon, Mr Sheard, thought the MRI showed "some mild disc degeneration at L2-3, L3-4 and L4-5 with no nerve root compression". He considered the later CT scan flexion/external views were all normal.
4. Orthopaedic surgeon, Dr Doig, went so far as to say the functional restrictions far exceeded the identified pathology. Professor Bittar did not make any comment on the available investigations.
5. There have been a range of diagnoses of the plaintiff's work-related spinal condition, both organic and non organic, and also psychiatric diagnoses.
6. Subsection s325(2)(h) of the Act provides consequences which are psychologically based are to be wholly disregarded in sub-paragraph (a) cases.
7. In Meadows v Lichmore Pty Ltd,[82] Maxwell P set out the two-step manner which the Court should adopt to disentangle the physical and psychological injuries where an application is made under sub-paragraph (a):

"... The first step is to ask whether there is a substantial organic basis for the pain and suffering consequences relied on. If the answer to that question is affirmative - and, of course, if the pain and suffering consequences satisfy the statutory criterion - then the applicant will succeed without the need for any 'disentangling' of the physical contributions to the pain and suffering from the psychological contributions.

If, however, that first question is not - or cannot be - answered affirmatively, then the applicant will need to take the next step and 'disentangle'. That is, the applicant will need to be able to separate the physical contribution to the pain and suffering from the psychological, in order to be able to satisfy the court that the pain and suffering consequences attributable to the physical injury satisfy the statutory test."

1. The plaintiff argued that the spinal impairment had a substantial organic basis based on the opinions of Professor Bittar and Mr Carey "who were most qualified in the field".[83]
2. In 2024, Mr Carey diagnosed ongoing low back pain and right lower limb symptoms, now with evidence of radiculopathy. In September 2025, Professor Bittar diagnosed aggravation of lumbar spondylosis with employment a significant contributing factor.
3. The plaintiff accepted Dr Doig did not find a clear physical injury, but submitted Professor Bittar and Mr Carey's diagnoses should be preferred to a diagnosis of psychiatrically-driven chronic pain.[84]
4. Further, the plaintiff relied on pain specialist, Dr Arvind, who thought the plaintiff presented with a history and examination suggestive of an axial discogenic nociceptive low back pain with some neuropathic features secondary to a work injury.[85] Branch blocks and other procedures were carried out to treat a physical injury.[86]
5. However, a number of examiners consider the plaintiff's spinal condition is of a minor nature, including his treating orthopaedic surgeon, or that any spinal impairment does not have a substantial organic basis.
6. As early as June 2023, Dr Ho thought the musculoligamentous strain to the plaintiff's back had resolved but appeared to have progressed into a Chronic Pain Syndrome.
7. In January 2025, Dr Doig diagnosed a chronic pain condition and considered the plaintiff appeared to be suffering from a significant secondary psychological condition.
8. Having found inconsistencies on examination and positive Waddell's signs, Dr Sabetghadam, in January 2025, thought the plaintiff's condition may have been a temporary exacerbation of a pre-existing condition which is anticipated to subside to the residual level. He attributed the plaintiff's heightened pain and disability perception and poor tolerance more to psychosocial reinforcers and his high body mass index.
9. Dr Horsley thought the plaintiff had probably sustained a soft tissue injury in the incident. As at August 2025, she found he presented with ongoing mechanical back pain but considered he had developed a Chronic Pain Syndrome and there was a significant psychiatric disability.
10. In her view, there was obviously a significant interplay between the plaintiff's psychiatric disability and the development of chronic mechanical back pain with his anhedonia, inactivity, weight gain, poor functional tolerances, and likely poor core strength.
11. To comment whether the plaintiff's pain was substantially organically based, on the basis of the radiology and the clinical examination, she would need to defer to her pain management specialists to tease out the nature of the plaintiff's chronic back pain in the setting of his significant psychiatric disability and physical deconditioning.
12. There was no evidence from a pain management specialist in this regard. There was no report from Dr Tippur, who carried out the various procedures. Dr Avind did not comment on this issue. In her most recent report in August 2025, she focussed largely on mental health issues and considered the plaintiff's mental health was the main barrier to his return to work.
13. Treating surgeon, Mr Sheard, who saw the plaintiff twice in 2023, did not diagnose any particular spinal condition. He did not suggest surgery and only gave the plaintiff general advice in terms of weightloss, core muscle exercises and that the plaintiff stop smoking. He also suggested pain management. He described the MRI findings as mild and the later CT scan as normal.
14. Professor Bittar simply accepted the veracity of the plaintiff's complaints - constant low back pain which was sharp, stabbing and aching - a description of more significant back pain than given by the plaintiff to other examiners and in Court. He described the plaintiff's lumbar condition as severe. The plaintiff also told him of ongoing leg weakness, having told the Court any leg issues had resolved. He found no evidence of radiculopathy.
15. While Mr Carey's opinion was relied upon by the plaintiff, he made no comment in his report on his finding that the plaintiff barely moved and a number of movements were almost zero during the impairment benefit examination.
16. Taking into account all the evidence, I cannot be satisfied the plaintiff's lumbar condition has a substantial organic basis.
17. As this question cannot be answered affirmatively, then the plaintiff will need to take the next step and 'disentangle'. That is, he will need to be able to separate the physical contribution to the pain and suffering from the psychological, in order to be able to satisfy the Court that the pain and suffering consequences attributable to the physical injury satisfy the statutory test.
18. The claimed physical consequences include pain, need for treatment, restriction of movement, interference with domestic and social activities and inability to work.
19. For the reasons detailed below, I am not satisfied that any consequences attributable to the physical injury alone satisfy the statutory test.
20. The plaintiff's current presentation is a mixture of both physical and psychological factors both on his own evidence and the medical opinion. Further, I am not satisfied the plaintiff's spinal condition is permanent with room for improvement with weightloss and conditioning, as Dr Horsley and Dr Sabetghadam explained.
21. Further, for the reasons set out below, I am not satisfied the consequences of any psychiatric consequences alone are severe.

1. In Haden Engineering v McKinnon,[87] President Maxwell said the evidentiary basis of the pain assessment would ordinarily comprise, inter alia, what the plaintiff says about the pain (both in Court and to doctors)
2. While the plaintiff continues to complain of low back pain, pins and needles and leg pain have gone. He accepted there has been an improvement in his physical symptoms.
3. The plaintiff's level of spinal movement has varied significantly on different examinations more than just "good and bad day" scenarios, with a number of examiners finding inconsistencies between the plaintiff's level of movement on formal examination compared to observation pre-examination. When seen by Mr Carey in 2024, the plaintiff "barely moved".
4. While the plaintiff maintains he cannot sit for long, he largely remained seated in the witness box between 10.45am and 12.25pm.[88] He did not look to adjust his posture at all and appeared to be able to sit for an hour-and-a-half without any apparent discomfort.[89]
5. On the plaintiff's own description, problems with driving issues are largely anxiety related rather than due to back pain with prolonged sitting.[90] Dr Singh, in 2024, advised the plaintiff not to drive because of his mental health.
6. Clearly, the plaintiff has had longstanding issues with his weight. While there has been an increase since the incident, it is nowhere near the claimed 70 kilograms deposed to in his 2025 affidavit.

1. The plaintiff says he cannot work or look for work because of both his physical and mental condition.[91]
2. It was submitted that the plaintiff, a man who loves cars, cannot work as a motor mechanic.[92] There is very limited medical support that he can do his pre-injury duties.[93] He has no realistic capacity for work, relying on what he said in re-examination about the various jobs.[94] There is a physical reason why he cannot do each of the suggested jobs.[95]
3. However, taking into account all the evidence, I am not satisfied any claimed inability to work is as a result of any organic spinal impairment. Further, any claimed incapacity is not permanent.
4. While the plaintiff has not worked since August 2023, he would be prepared to return to his old job, working from home if it were available to him - as it currently is to another employee. The plaintiff has remained on the employer's books in the hope this would happen and not made any applications for other jobs.
5. The plaintiff's former job was 50 per cent computer which he said he could cope with. These skills would be transferable to other roles. He felt he could do the manual part of his job - preparing orders, stock control, handling automotive parts and lifting, but preferred to do the role from home as it would allow him to have a rest if needed.
6. The plaintiff accepted he had the capacity to do a number of jobs, subject to his pain and restrictions. He accepted there was a desire to get back to work and get involved and the likelihood he would be able to achieve things with his successful weight program.[96]
7. As the defendant submitted, the plaintiff has shown he can overcome his nervousness of getting out of the house. He has accepted that he is going to try and find some work and if he is motivated properly, then realistically, he can overcome his anxiety like he did when visiting his daughter in Darwin.[97]
8. The plaintiff has a range of skills in a variety of areas such as a parts interpreter job which he was doing at the time of the incident. He has other similar work options, whether it be a sales representative or another job. He is not like a man who has only ever done physical work and now cannot do it.[98]
9. Pain management specialist, Dr Arvind, as at August 2025, would have liked the plaintiff to return to work in a slow-paced manner. She thought the main barrier impacting this was his mental health.
10. I prefer the detailed analysis of occupational physicians, Dr Horsley and Dr Sabetghadam, to Professor Bittar's very brief view about work capacity which showed no path of reasoning, simply stating the plaintiff was totally incapacitated as a result of his work-related spinal condition.
11. Dr Sabetghadam considered the plaintiff had the capacity to do a wide range of jobs.[99] A weightloss program and core strengthening were also recommended.
12. Dr Horsley thought the plaintiff's prognosis for a return to work related directly to his mental health. It would need to stabilise. His weight needed to be proactively managed and the functional tolerances improved before he could consider returning to work. The roles suggested by Dr Sabetghadam, while not suitable now, would probably be the goal after this occurred.
13. Dr Verna, in his most recent report of August 2025, thought the plaintiff's condition had not been substantially stabilised with continuing adjustments to his treatments, both physical and mental.
14. Given the room for improvement with weightloss and conditioning, I am not satisfied the consequences of any claimed spinal impairment are permanent.
15. Overall, the plaintiff has been unable to satisfy the Court that the pain and suffering consequences attributable to the physical injury satisfy the statutory test.
16. Accordingly, the application for leave to bring proceedings for damages for pain and suffering under sub-paragraph (a) is dismissed.
17. Taking into account the work-related factors in that decision, I am not satisfied that as a result of any physical injury, the plaintiff has suffered the requisite loss of earning capacity of 40 per cent on a permanent basis.[100]
18. The application for leave to bring proceedings for damages for loss of earning capacity under this head must also fail.

1. There was also an application for leave under both heads for a psychiatric impairment.
2. Dr Weissman's diagnosis, including psychosis, was relied upon[101] rather than a Chronic Pain Syndrome, as the plaintiff's main argument was his spinal condition was organically based. It was submitted, on psychiatric grounds, the plaintiff was totally incapacitated and had suffered the requisite loss of earning capacity of 40 per cent.[102]
3. The defendant submitted the plaintiff's present psychiatric condition is largely psychotic focussed. The plaintiff has the job of disentangling, and Dr Singh, the treating psychiatrist, distances himself from Dr Weissman's diagnosis of a more serious psychiatric condition. While the plaintiff is taking a raft of medication, a lot of it appears to be psychotropic, with Dr Singh not linking it to work issues. Further, Dr Singh does not say the plaintiff cannot work because of his psychiatric condition. His view should be preferred to that of medico-legal examiner, Dr Weissman.[103]
4. In my view, any incident-related psychiatric impairment is not severe.
5. In his May 2025 report, Dr Singh diagnosed a Chronic Pain Syndrome with Generalised Anxiety and Mild Depression with psychosis.
6. I prefer the opinion of treating psychiatrist, Dr Singh, who has seen the plaintiff multiple times, to that of medico-legal examiner, Dr Weismman, who has seen him just once.
7. Dr Singh did not attribute any psychotic symptoms to the incident or the plaintiff's work duties. Most of the plaintiff's medication - "a cocktail of psychotropic medications"[104] - is to treat these symptoms.
8. Dr Schutz found insufficient evidence of a separate psychotic disorder, diagnosing a moderate Adjustment Disorder with Depressed Mood.
9. While Dr Singh last reported in August 2025, the plaintiff was cross-examined extensively on the notes of his attendances to date. The plaintiff accepted improvement from a psychiatric perspective, as those notes confirmed.[105]
10. Although the plaintiff maintained he still heard voices, he agreed he was now mildly depressed. His sleep was better, his mood was stable, his appetite was better and he was going out more. Being more active made him feel better about himself, as does getting involved and helping out his partner.
11. While Dr Weismman says the plaintiff cannot work due to his psychiatric state, Dr Singh does not share this view and considered the main decision as to work should be from his pain specialist.
12. I am not satisfied any psychiatric impairment is permanent given the plaintiff's recent improvement and also Dr Singh's suggestion that the plaintiff may benefit from treatment by another psychiatrist. As at May 2025 when he last reported, Dr Singh thought the plaintiff's mental health was not stabilised. In his most recent report in August 2025, GP, Dr Verma, thought the plaintiff's psychiatric status was not yet steady. That month, Dr Horsley also thought the plaintiff's mental health had not stabilised.
13. Taking into account all the evidence, I am not satisfied the consequences of any work-related psychiatric impairment are permanent and meet the higher test of severe. Further, I am not satisfied the plaintiff has suffered pecuniary loss as a result of any psychiatric impairment. He has therefore been unable to establish the requisite loss of earning capacity of 40 per cent.
14. Accordingly, the application for leave to bring proceedings for damages for pain and suffering and loss of earning capacity as a result of a psychiatric impairment is also dismissed.

[2] [1998] 3 VR 833

[4] Per Ashley JA in Veljanovska v Socobell Oem Pty Ltd [2005] VSCA 227

[5] [2005] VSCA 33; (2005) 14 VR 622

[6] [2010] VSCA 69; (2010) 31 VR 1

[7] [2013] VSCA 201

[12] Affidavit sworn on 15 October 2024 ("October 2024 affidavit")

[14] Plaintiff's Worker's Injury Claim Form dated 15 November 2022

[19] History to Dr Weissman August 2025

[73] There was no report from or other mention of that psychiatrist

[74] This was the only diagnosis in any of her reports

[75] Accurate history - October 2024 affidavit

[78] [2006] VSCA 254 at paragraph [14]

[82] Supra at paragraphs [21]-[22]

[85] T74 - Letter dated 31 July 2023 to physiotherapist - only mention of diagnosis

[100] $1,107 per week based on $57,564 gross: T5