IN THE COUNTY COURT OF VICTORIA
AT Melbourne
COMMON LAW DIVISION	 Revised
Unrestricted
 Suitable for Publication	
Serious Injury List		

Case No. CI-24-01658

DEBRA TUCKER	Plaintiff	
		
v		
		
VICTORIAN WORKCOVER AUTHORITY	Defendant	

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JUDGE:	HER HONOUR JUDGE MYERS	
WHERE HELD:	Melbourne	
DATE OF HEARING:	17 October 2024	
DATE OF JUDGMENT:	31 October 2024	
CASE MAY BE CITED AS:	Tucker v Victorian WorkCover Authority	
MEDIUM NEUTRAL CITATION:	[2024] VCC 1672		

REASONS FOR JUDGMENT
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Subject:	ACCIDENT COMPENSATION
Catchwords:	Serious injury – injury to the right upper limb – pain and suffering – loss of earning capacity
Legislation Cited:	Workplace Injury Rehabilitation and Compensation Act 2013, s335
Cases Cited:	Giankos v SPC Ardmona Operations Ltd (2011) 34 VR 120; Richter v Driscoll (2016) 51 VR 95
Judgment:	Leave granted to seek loss of earning capacity and pain and suffering damages.

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APPEARANCES:
	Counsel	Solicitors	
For the Plaintiff	Mr A Macnab SC with
Ms C Shambrook	Maurice Blackburn	
			
For the Defendant	Mr N Dunstan	MinterEllison	

HER HONOUR:

Introduction
1	Mrs Debra Tucker, the plaintiff, is a sixty-three-year-old former special education teacher.  She claims that on 8 February 2021, she suffered an injury to her right arm in a fall at the Ashwood School (“the school”) where she was employed.
2	Mrs Tucker applies for leave to bring a common law proceeding seeking pain and suffering and loss of earning capacity damages pursuant to the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (“the Act”).  Her claim is that she has a “serious injury” of her right upper limb.
3	The Victorian WorkCover Authority (“VWA”), the defendant, conceded that Mrs Tucker suffered a compensable injury to her right upper limb on 8 February 2021.  The VWA also conceded that the permanent impairment consequences of Mrs Tucker’s compensable right upper limb injury satisfy the statutory threshold for leave to claim pain and suffering damages.  The contested aspect of the application was solely with respect to the claim for leave to seek loss of earning capacity damages.
4	The relevant legal principles are well known and were not in dispute.
5	To succeed in her application to claim loss of earning capacity damages, Mrs Tucker must establish that she is permanently unable to earn at least 60 per cent of her “without injury” earnings in suitable employment by reason of her right upper limb injury.  She must also establish that the loss of earning capacity consequence of the right upper limb injury is “serious”.
6	The parties agreed that Mrs Tucker’s “without injury” earnings were $114,591 per annum.  Sixty per cent of that figure is $68,654 per annum or $1,322.20 per week.  
7	The VWA conceded that Mrs Tucker is permanently unfit for her pre-injury duties.
8	The issues for determination are:
(a)	What are the permanent impairment consequences of Mrs Tucker’s compensable right upper limb injury?
(b)	Is Mrs Tucker permanently unable to earn at least $68,654 per annum in suitable employment because of the impairment consequences of the compensable right upper limb injury?
(c)	Is the loss of earning capacity consequence of Mrs Tucker’s compensable right upper limb injury “serious”?
9	For the reasons that follow, Mrs Tucker is granted leave to seek loss of earning capacity damages for her compensable right upper limb injury.  
Background
10	The following, I believe, were uncontroversial matters.  As far as any were contested, these represent my findings unless otherwise stated.
11	Mrs Tucker completed high school and then obtained a Diploma in Primary Teaching and a Graduate Diploma in Special Education.  She started working for the Department of Education (“the employer”) in 1983. 
12	Mrs Tucker is right handed.
13	Mrs Tucker has spent her whole career working as a special education teacher at the school.  In that role, Mrs Tucker taught both primary and secondary school children with intellectual disabilities.  In addition to her main teaching role, Mrs Tucker also coordinated the Duke of Edinburgh Award program at the school.
14	On 8 February 2021, Mrs Tucker tripped and fell on the rim of a sunken doormat in the foyer of the school.  She fell heavily onto her right arm.
15	Mrs Tucker was taken by ambulance to the Emergency Department at Knox Private Hospital.  An x-ray revealed that she had sustained a Monteggia fracture dislocation of her right elbow.  This involved a displaced comminuted fracture of the proximal ulna and olecranon and dislocation of the radial head.
16	On 9 February 2021, Mr Craig Donohue, orthopaedic surgeon, performed an open reduction internal fixation of the fracture/dislocation, excised a small radial head fracture fragment and performed a bone graft to the ulna.
17	Mrs Tucker began hand therapy shortly after the surgery and continues to have hand therapy on a regular basis.
18	Mrs Tucker has also had hydrotherapy treatment for her right elbow injury.
19	On 30 September 2021, Mr Donohue performed surgery to remove the metalware in Mrs Tucker’s right elbow.  Mrs Tucker had a post-surgical infection which was treated with antibiotics.
20	Mrs Tucker currently takes four to six Panadol Osteo tablets a day, six days a week; Panadeine Forte twice a week, and Mobic approximately seven to ten days a month.  She wears a compression sleeve on her elbow during the day.
21	Mrs Tucker did not work for the remainder of 2021, and the first term of 2022, by reason of her elbow injury. 
22	On 6 April 2022, a return-to-work plan was put in place in conjunction with Mrs Tucker’s general practitioner (“GP”).  This plan provided for a return to work, starting on modified duties for two hours a day on Mondays, Wednesdays and Fridays; however, Mrs Tucker did not return to work.
23	On about 21 April 2022, Mrs Tucker submitted a Notification to Cease Employment to the employer effective 25 April 2022.  The reason provided for cessation was “Retirement due to workplace injury and extended time away from teaching”.
What are the permanent impairment consequences of Mrs Tucker’s compensable right upper limb injury?
24	Mrs Tucker tendered two affidavits sworn by her in support of her application.  She was also cross-examined.
25	Mrs Tucker claimed that she suffers from the following ongoing impairment consequences by reason of her right upper limb injury: 
(a)	she is unable to fully extend her arm;
(b)	she suffers from constant stiffness in her right elbow, and pain on a daily basis when she uses her arm;
(c)	she struggles with fine motor activities with her right arm;
(d)	prior to suffering her injury, she was a ten-finger typist.  She is now only able to use one or two fingers on her right hand to type and experiences a significant increase in pain in her right arm if she attempts to type for longer than about fifteen minutes;
(e)	she is unable to write for more than about twenty minutes by reason of increased pain in her right arm;
(f)	if she writes or types for more than about fifteen to twenty minutes, her ring and little fingers on her right hand start to droop;
(g)	she cannot weightbear through her right arm;
(h)	she struggles to push, pull and lift with her right arm.  By way of example, handling her own suitcase on a trip interstate caused several days of pain in her right arm;
(i)	her sleep is disrupted a couple of times a week by reason of pain and numbness in her right arm.  She no longer sleeps in a bed with her husband, but sleeps in a recliner chair to avoid putting pressure on her right arm;
(j)	she is unable to perform heavier domestic activities, and a cleaner comes fortnightly to undertake those tasks;
(k)	she is no longer able to spin fibres and weave because she cannot undertake repetitive movements with her right hand;
(l)	her capacity to knit and embroider has been significantly curtailed as she cannot do so for more than about fifteen minutes without exacerbating her elbow pain; and
(m)	she can no longer play tennis and is unable to swim more than two laps due to pain in her right arm.
26	This is a convenient point to consider the tendered medical evidence.
Treating practitioners
Dr Lona Brown, general practitioner
27	Mrs Tucker tendered two reports from Dr Brown dated 6 September 2023 and 16 October 2024, a note of a treating practitioner case conference dated 7 April 2022, and three certificates of capacity dated 22 March 2022, 6 April 2022 and 26 April 2022.
28	Dr Brown has been Mrs Tucker’s GP since her previous GP retired in September 2022.
29	In the case conference note dated 7 April 2022, Dr Brown reportedly advised:
“… [Mrs Tucker] is certified to have no capacity for employment from 06/04/2022 to 25/04/2022 … she would certify [Mrs Tucker] fit for suitable duties with her pre-injury employer from 26/04/2022 to 24/05/2022 on the next certificate … range of movement has reduced since having wound infection.”
30	In both of her reports, Dr Brown expressed the following opinions:
“My understanding is that [Mrs Tucker] is currently retired.  If she needed to work she would be able to do duties not requiring repetitive use of her right arm or full extension of the right arm.  She may also need regular rest breaks if her right arm pain flares up with use.
 … As per the advice from her orthopaedic surgeon Mr Donohue [Mrs Tucker] will likely continue to have some stiffness in the right elbow and reduced range of movement ongoing.  Regular ongoing physiotherapy and or hydrotherapy will help her maintain the current function of her arm.”
Mr Craig Donohue, orthopaedic surgeon
31	Mrs Tucker tendered two operation reports, dated 9 February 2021 and 30 September 2021, and two letters from Mr Donohue dated 21 June 2021 and 22 July 2021.
32	The VWA tendered a letter from Mr Donohue dated 4 April 2022.
33	In his letter dated 21 June 2021, Mr Donohue noted that Mrs Tucker was making good progress but was increasingly bothered by the prominent metalware.  He noted she had “a range of movement from 10 to 120 degrees in the right elbow.  She had full pronation and supination which was pleasing.”  Mr Donohue requested a CT scan to assess the union of the fracture and arranged a further examination to consider removal of the metalware.
34	In his letter dated 22 July 2021, Mr Donohue noted a similar range of motion in Mrs Tucker’s right arm as previously.  He opined that the CT scan revealed bony union of the proximal ulnar fracture.  He proposed to remove the metalware.
35	In the letter dated 4 April 2022, Mr Donohue relevantly noted:
“Debra Tucker came back for a review today with some ongoing minor stiffness in her work injured right elbow.  Today I have reassured her and I have encouraged her to trial a return to work.  
… [Mrs Tucker] continues to have some stiffness in her work injured right elbow.  This has plateaued …  Pleasingly … [Mrs Tucker] doesn’t describe any elbow pain. 
… She had an active range of movement from around 15 to 120 degrees.  She had full pronation and supination. 
… 
... she will probably never regain full elbow extension.  I have encouraged her to focus on the positive and would hope that she would be able to return to work as a teacher in the near future.  No further orthopaedic review has been organised and at this stage I have discharged her back to your care.”
Diana Francis, hand therapist
36	Mrs Tucker tendered a report from Ms Francis dated 12 May 2023.  Ms Francis has been treating Mrs Tucker since March 2021.
37	Ms Francis opined:
“Mrs Tucker is unlikely to obtain much more improvement in her upper limb.  … Mrs Tucker will require ongoing therapy, muscle release massage and also a swim program for some time to come. 
… 
The elbow joint is very important for function as it allows the hand to be positioned in space for use.  With limited range of motion in the elbow one is unable to reach with the hand up behind your back or to your face etc.  Pain in this joint is also disabling as it will affect the ability to use the hand for strength activity and prolonged hand use.  Mrs Tucker will have ongoing pain and reduced motion in her elbow. 
… 
Mrs Tucker has ongoing pain in her elbow, wrist and hand.”
Lauren Kilkenny, physiotherapist
38	Mrs Tucker tendered a report from Ms Kilkenny dated 24 March 2023.
39	Ms Kilkenny supervised Mrs Tucker’s hydrotherapy between May and December 2022.
Medico-legal practitioners
Mr Ash Chehata, orthopaedic surgeon
40	Mrs Tucker tendered a report from Mr Chehata dated 4 June 2024.  Mr Chehata examined Mrs Tucker that day.
41	On examination, Mr Chehata relevantly noted:
“She has lost 20 degrees of extension and is able to flex well past 150 degrees, with full pronation and supination.  There is a palpable likely osteophyte that’s present at the level of the capitellum, and the posterolateral gutter of the right elbow is full, very likely to represent early post-traumatic arthritis.  The radial ulnar media nerves, although intact, appears to have a loss of sensation intermittently at the level of the ring and little finger, likely as a result of post-traumatic arthritic change, secondary to osteophyte changes in the cubital tunnel.  The median nerve is intact and there is no wrist drop.”
(sic)
42	Mr Chehata opined that Mrs Tucker’s restrictions included:
“… loss of full extension as well as an element of instability and the development of post-traumatic arthritis.  There is ongoing chronic pain, an inability to load through the right elbow and she can no longer lift heavy shopping bags, nor can she return back to her recreational pursuits, such as tennis or swimming.”
43	As to work capacity, Mr Chehata said:
“… considering that she’s remained in her specific special education teacher role for over 39 years at the age of now 63, it is impossible to believe she will return back to any form of employment, and she is almost certainly now any form of re-employment in the near future.  Her prognosis is certainly guarded and her likely current state is that of developing early post-traumatic arthritis in the right elbow.”
(sic)
Dr Robyn Horsley, occupational physician
44	Mrs Tucker tendered two reports from Dr Horsley, dated 1 August 2024 and 3 October 2024.  Dr Horsley examined Mrs Tucker on 1 August 2024.
45	In her first report, Dr Horsley noted the following current symptoms:
“Ms Tucker experiences an ongoing reduction in range of motion in her right elbow.  There is a reduction in power.  She drops things.  She is unable to undertake repetitive fine manipulative tasks.  She experiences altered sensation in the fourth and fifth fingers of her right hand, ‘a thick feeling.’  She has difficulty with tasks such as zips, buttons, doing up her bra and statically holding the hairdryer.  She experiences pain and stiffness in the right elbow joint and into the muscle bellies of extensor carpi radialis longus and brachioradialis and at times, into her right thumb and wrist. 
… 
She can experience an ‘aching pain’ around the right elbow which can last for hours.  It varies on the visual analogue scale from 4 to 8 out of 10.  She can experience a ‘nagging dull ache’ that can last for one or two hours, again 4 to 8 out of 10 on the visual analogue scale.  If she has overdone some activity, she can experience ‘sharp pain’ that can last for about an hour and is at a level of 7 out of 10 and then eases off. 
… She can experience some muscle aching above the elbow if she uses her arm repetitively.  … 
... [S]he has been sleeping in a recliner chair …  Her sleep is disturbed. 
… She can now write one and a half to two pages of ‘messy’ writing.  Her keyboard tolerance typing is a maximum of 15-20 minutes.  She described ‘finger drooping’ particularly of the fourth and fifth fingers, if she types for any longer.”
46	On examination, Dr Horsley noted a significant reduction in muscle bulk of the right arm compared to the left.  In addition, she found:
“There was an 18cm scar over the lateral epicondyle into the forearm.  There was mild tenderness on palpation over the scar, but some tenderness into the muscle bellies of extensor carpi radialis longus and brachioradialis.  There was some mild altered sensation over the dorsum of the fourth and fifth fingers of the right hand.
She was able to fully flex her elbow.  There was a reduction in extension in the last 5-10°.  She stated that she could feel ‘a clunk’ as she moved her right elbow.  Pronation was normal.  Supination was reduced in the last 10°.  Using the Jamar, she had 24kgs force on the right and 34kgs force on the left.”
47	Given the presence of a loose body in the elbow joint, noted on x-ray, Dr Horsley opined Mrs Tucker was developing an acceleration of the degenerative process in the right elbow.
48	As to future work capacity, Dr Horsley said:
“Ms Tucker, at 63 years of age, is not a retraining or redeployment candidate.  Her specialist skills are as a teacher within the special education arena.  She worked at the same school for 36 years.  Her transferrable skills, with her level of disability are unlikely to be taken up by an alternate employer.
The following restrictions from the domestic and recreation perspective would be prudent when considering her right elbow condition only:
•	Avoidance of any over-reaching, repetitive pushing or pulling on the right side;
•	Avoidance of prolonged grip;
•	Avoidance of repetitive supination and pronation;
•	Avoidance of using tools with a vibratory component;
•	Avoidance of prolonged fine manipulative tasks involving the right hand;
•	Her writing tolerance is about a page and a half.  Her typing tolerance is about 15-20 minutes
•	Avoidance of lifting items greater than 5-8 kgs on the right side.
•	She is unable to put sustained load through the right elbow.
…
On the basis of her physical disability, Ms Tucker is permanently unfit to work in a classroom-based environment as a special education secondary classroom teacher.  Her typing skills are now limited.  Her writing skills are limited.  She has come to the end of her working life at 63 years of age.
I do not think she is a suitable redeployment candidate.”
49	Dr Horsley provided a supplementary report dated 3 October 2024, in which she commented upon the suitable employment options proposed in a CoWork report dated 3 September 2024.
50	Dr Horsley relevantly opined as follows:
“She could work as an invigilator/chief examination supervisor.  Invigilator work involves oversighting the examination process for mainstream students, sitting examinations at the end of the year.  Invigilator work is very part-time and specifically around the examination period at the end of the year.  As a longstanding teacher, this type of work on an extremely part-time basis would be suitable. …  The roles are sought after and very short-term.
The roles of … educational support officer, education advisor … are not realistic options given her work experience in the specialist education arena, her age now at 63 years, her right dominant arm disability and her outdated computer-based skills which were adequate for her role, but would be inadequate for these types of roles.”
Dr Joseph Slesenger, occupational physician
51	The VWA tendered a report from Dr Slesenger dated 2 August 2024.  Dr Slesenger examined Mrs Tucker on 27 July 2024.
52	Mrs Tucker reported that:
“She has ongoing pain over the right proximal forearm, and over the right lateral elbow.  The pain is moderate but occasionally severe.  The pain is most noticeable with activity …
...
She has residual weakness in the right arm and is generally more reliant upon the left side for activities.
...
There is a clunking sensation on extension of the right elbow with her hand pronated, and she has been advised that this is due to localised instability.
...
She has developed tingling and sensory changes in the ulnar border of the right forearm, hand and the ulnar two fingers of the right hand.”
53	Dr Slesenger opined that Mrs Tucker suffered from “chronic right elbow pain with restricted range of movements (post-traumatic osteoarthritis with evidence of ulnar neuropathy and chronic pain)”.  He said there was a risk of further deterioration due to the degenerative nature of the underlying condition.
54	Dr Slesenger opined that Mrs Tucker retained a capacity to work full time (with a graduated return over six to eight weeks) with the following restrictions:
(a)	Avoid firm gripping, pushing and pulling greater than 5 kilograms;
(b)	Avoid repetitive wrist and elbow tasks;
(c)	Avoid forceful torque movements.
Findings
55	During cross-examination, the VWA did not challenge Mrs Tucker’s credibility or reliability and did not challenge Mrs Tucker’s claimed impairment consequences.  The VWA fairly conceded that Mrs Tucker was “genuine”.
56	The tendered medical evidence confirms that Mrs Tucker suffers from ongoing pain and restrictions in her dominant right arm.  None of the medical practitioners cast doubt upon the nature and extent of Mrs Tucker’s claimed impairment consequences.
57	I found Mrs Tucker to be a straightforward witness and accept that she suffers from the impairment consequences which she described.
Is Mrs Tucker permanently unable to earn at least $68,654 per annum in suitable employment because of the impairment consequences of the compensable right upper limb injury?
58	Mrs Tucker submitted, based on the evidence of Mr Chehata, Dr Horsley and Ms Green, that she had no capacity for suitable employment on a reliable and consistent basis.
59	In accordance with its evidentiary onus, the VWA submitted that Mrs Tucker has the skills and capacity to work full time as:
(a)	a chief examination supervisor, earning $1,605 gross per week;
(b)	an educational support officer, earning $2,256 gross per week; and
(c)	an education adviser, earning $2,929 gross per week.
Katrine Green, psychologist and vocational assessor
60	Mrs Tucker tendered a vocational assessment report from Ms Green dated 20 September 2024.  
61	Ms Green considered the roles of education teacher and case manager -educational setting, and private tutor, and concluded that none represented suitable employment for Mrs Tucker in light of the physical restrictions caused by her right upper limb injury.  
62	Ms Green also considered the suitable employment options put forward by CoWork.  She relevantly concluded that none of the suggested roles were suitable because of the physical restrictions from which Mrs Tucker suffered due to her right upper limb injury, and in particular:
(a)	Chief examination supervisor was not suitable as it involves distribution and collection of exam materials which would include a reasonable dependency on the dominant upper limb;
(b)	Educational support officer was not suitable because it would involve dealing with behavioural issues;
(c)	Education adviser was not suitable as it would put a high demand on writing and keyboarding.  
Joanne McLeod, occupational therapist and vocational assessor (“CoWork report”)
63	The VWA tendered a CoWork report dated 3 September 2024.
64	Seven suitable employment options were suggested in the report, but the VWA relied upon three, namely chief examination supervisor, educational support officer and education adviser.
65	The role of chief examination supervisor is described as a sedentary role.  It involves standing, walking, handing out exam papers, briefing assistant supervisors, reporting responsibilities, and collection, collation, packaging and storage of exam materials.  Whilst full-time earnings figures were provided, it was acknowledged by the VWA that the role was casual and short term, for the VCE exam period.
66	The role of education support officer is described as a light role providing one-to-one support in class for a child with additional needs in a mainstream school.  The role involves adapting content for students, providing administrative support and assisting with curriculum development for students with specialist learning needs, setting up classroom materials and equipment, and maintaining student records and reporting.
67	The role of education adviser is described as a sedentary role.  The job involves conducting educational research and developing course curricula and associated teaching materials for use by educational institutions.
Findings
68	During cross-examination, Mrs Tucker agreed that she possessed the aptitude or skills to perform the roles of chief examination supervisor, education support officer and education adviser.  
69	At issue is whether those roles represent suitable employment for her.
70	In considering whether employment represents “suitable employment”, I must consider the nature of Mrs Tucker’s incapacity, the nature of her pre-injury employment, her age, education, skills and work experience, her place of residence, any return-to-work plan and any occupational rehabilitation services provided. 
71	I am required to take a “real world” approach to the plaintiff’s employment capacity.  It requires more than a physical capacity to engage in a task or tasks.
72	I bear in mind that this is a gateway application. 
73	Mrs Tucker has not worked in any capacity since February 2021.  She is now 63 years of age.  She deposed that she had intended to work beyond aged 65, to aged 70 years.
74	Mrs Tucker’s entire career has been spent at one school as a special education teacher.  
75	I bear in mind that the medical evidence supports a finding that Mrs Tucker’s condition is likely to deteriorate by reason of the already symptomatic arthritic change in her right upper limb.
76	Mr Donohue last saw Mrs Tucker in April 2022 and was hopeful that she would be able to return to teaching.  
77	Mrs Tucker’s GP is of the view that she has the capacity to work in a role that does not require repetitive use of her right upper limb. 
78	Mr Chehata noted that even some minor movements of Mrs Tucker’s right hand were liable to cause a significant flare-up of pain, which he thought likely represented “a flare of post-traumatic arthritis”.  He opined that it was “impossible to believe” Mrs Tucker would be able to return to any form of work.
79	Ms Green opined that Mrs Tucker was unfit for any suitable employment on a consistent, sustained, reliable and permanent basis.
80	The opinions of the occupational physicians are of particular assistance in determining this issue given their speciality.   
81	Dr Horsley identified numerous physical restrictions which are required by reason of Mrs Tucker’s right upper limb injury.  That is, she should avoid overreaching, repetitive pushing or pulling on the right side, prolonged grip, repetitive supination and pronation, prolonged fine manipulative tasks, writing more than a page and a half, typing for more than 15 to 20 minutes, and lifting greater than 5 to 8 kilograms on the right side.
82	Dr Slesenger’s identified restrictions were less detailed and did not specifically address Mrs Tucker’s capacity to perform fine manipulative tasks, write or type.  
83	I prefer the more detailed consideration of Dr Horsley, which better accords with the impairment consequences which I have accepted.
84	I accept that Mrs Tucker struggles to use a computer or write for more than approximately 20 minutes due to significantly increased pain in her right upper limb.  Those restrictions would make it very difficult for Mrs Tucker to undertake a role with any sustained or repetitive computer use or writing.
85	I also accept that Mrs Tucker has sleep difficulties by reason of her compensable injury.  Those sleep difficulties are exacerbated by increased pain such as if Mrs Tucker was required to write or type for longer than 20 minutes or so.
86	I bear in mind Mrs Tucker’s age of 63 and the fact that she has not worked in any capacity for more than three years.
87	Mrs Tucker said that she anticipated she would have difficulty pushing a trolley with examination papers in it.  I accept that she may have some difficulty performing that task, but I find that Mrs Tucker likely has the capacity to do so for short periods.  
88	Mrs Tucker ultimately conceded during cross-examination that there was no reason, physically, why she could not undertake the role of chief examination supervisor.
89	I find that each of the tasks which comprise that role are likely within Mrs Tucker’s capacity to perform on a short-term and part-time basis.  
90	I accept Dr Horsley’s evidence that the role of chief examination supervisor is casual and very short term.  That evidence is corroborated by the annexures to the CoWork report.  The two advertised roles were casual and for the VCE exam period.  
91	Because the employment is only for the VCE exam period, I find it does not represent employment in which Mrs Tucker could earn at least $68,654 per annum.
92	As to the remaining two roles, the VWA submitted that the fact Mrs Tucker might have difficulty writing or typing for prolonged periods, such that she might need extra time to perform certain tasks or might experience some increased pain or discomfort performing those tasks, did not mean the tasks were beyond her.  
93	The issue is one of fact and degree, both as to the extent of pain or difficulty, and the frequency with which the task would be undertaken in the proposed role. 
94	I find that Mrs Tucker has a very limited capacity to write or type with her dominant right hand.  She can only write and type for about twenty minutes before experiencing significantly increased pain and an inability to continue.  The knock-on effect of such activity is further increased pain at night and consequential sleep disturbance.  On that basis, I find that roles with any significant writing or typing requirements do not represent suitable employment for her on a reliable and consistent basis.
95	I find the role of education support officer does not represent suitable employment for Mrs Tucker.  Her inability to write or type for more than about twenty minutes means that the administrative tasks required in this role are likely beyond her capacity.  That finding is supported by the opinion of Dr Horsley, whose opinion I prefer.
96	Mrs Tucker agreed during cross-examination that she was physically capable of performing all the tasks comprising the role of education adviser as identified in the CoWork report.
97	Despite Mrs Tucker’s concession, I find that the role of education adviser does not represent suitable employment for Mrs Tucker.  In light of her restricted capacity to write and type, the administrative tasks required in this role are likely beyond her capacity on a reliable and consistent basis.  That finding is supported by the opinion of Dr Horsley, whose opinion I prefer.
98	Accordingly, I find that Mrs Tucker has satisfied her onus to establish that she is permanently unable to undertake suitable employment in which she could earn at least $68,654 per annum.
Is the loss of earning capacity consequence of Mrs Tucker’s compensable right upper limb injury “serious”?
99	I find that the loss of capacity to undertake her pre-injury employment or suitable employment with any significant or repetitive use of her right upper limb now and into the foreseeable future is a consequence that can be “fairly described as being more than significant or marked, and as being at least very considerable”.  Mrs Tucker therefore satisfies the narrative test.
Conclusion
100	Mrs Tucker has leave to issue common law proceedings claiming both pain and suffering and loss of earning capacity damages.
101	I will hear the parties on the issue of costs.
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