IN THE COUNTY COURT OF VICTORIA
AT Melbourne
COMMON LAW DIVISION	Revised
Not Restricted
Suitable for Publication	
 Serious Injury List
Case No. CI-18-02082

STEPHEN CONVY	Plaintiff	
		
v		
		
VICTORIAN WORKCOVER AUTHORITY	Defendant	

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JUDGE:	HIS HONOUR JUDGE DYER 	
WHERE HELD:	Melbourne	
DATE OF HEARING:	7 & 10 December 2018	
DATE OF JUDGMENT:	12 April 2019	
CASE MAY BE CITED AS:	Convy v VWA	
MEDIUM NEUTRAL CITATION:	[2019] VCC 480		

REASONS FOR JUDGMENT
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Subject:		Accident compensation
Catchwords: 		Serious injury; Earning capacity
Legislation Cited:	Accident Compensation Act 1985
Cases Cited:	The Herald & Weekly Times Limited & VWA v Jessop [2014] VSCA 292; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
Judgment:		Leave granted for pecuniary loss and pain and suffering

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APPEARANCES:
	Counsel	Solicitors	
For the Plaintiff	Mr I. Ingram SC with
Mr E. Makowski	Arnold Thomas Becker	
			
For the Defendant	Ms M. Tsikaris	IDP Lawyers	

HIS HONOUR:

Introduction
1	Stephen Convy was employed by Hafele Australia Pty Ltd (‘the employer”), a hardware and building material supplier in November 2011.  He was employed initially as a casual storeman, but was subsequently employed on a full-time basis in March 2012 after undergoing a pre-employment medical examination and completing a three month probationary period.
2	At the time of commencing that employment Mr Convy was 45 years of age and had completed his education part way through Year 10.  He previously performed various types of employment including factory work, some office administration, work in call centres and stores and logistics positions for a number of employers.
3	He sustained an injury to his back in the course of his employment on 11 February 2014 when lifting a box containing a kitchen bin and estimated to weigh somewhere between 20 and 25 kilograms.
4	He was initially referred by his employer to a physiotherapist, and then attended both a general practitioner and the Monash Medical Centre, but no particular investigations were performed.  He was provided with some medication and continued to work on restricted duties.
5	In March 2014 he was investigated for some unrelated conditions related to abdominal pain and potential cardiac issues.  He continued to work until his back pain began to worsen in the early part of 2015, eventually ceasing work in August of that year.
6	Although there has been some suggestion of operative treatment, Mr Convy has largely remained on a conservative regime involving ongoing medication and physiotherapy.
7	Since ceasing his employment with Hafele he has managed to find some alternative employment, including a relatively short period of full-time administrative work at Monash University.
8	In the present application Mr Convy seeks leave in accordance with section 134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) to claim damages in respect of both loss of earning capacity and pain and suffering.  His application relies on the definition of serious injury contained in paragraph (a).  The spine is identified as the body function said to be relevantly lost or impaired.
9	Ms Tsikaris, on behalf of the defendant, did not take issue with the plaintiff suffering a back injury in compensable circumstances.  She identified the issue of post-injury capacity as the main area of dispute, although she noted that there had been an initial rejection of the compensation claim lodged by Mr Convy.  Ms Tsikaris quite properly conceded that that issue was no longer to be argued following the receipt of a recent medical opinion.
10	Mr Convy was the only witness required for cross-examination.  The parties otherwise tendered into evidence material from their respective court books and other documents which were produced during the hearing.
The lay evidence
11	Mr Convy swore two affidavits in support of his application, the first on 20 December 2017, and a supplementary affidavit on 23 November 2018 shortly prior to the hearing.
12	In his first affidavit he described his general background and work history.  He had left school part way through Year 10, and initially undertook factory work for more than a decade.  He then undertook employment with the railways as a station assistant, and later in the reservation centre.  There was other work involved in administration and sales, including relatively recent work at a Telstra call centre before commencing employment with the employer.
13	His work with the employer commencing in late 2011 involved work as a storeman:
“… there was a lot of heavy manual work requiring to be undertaken.  Manual handling included items such as 20 kg boxes of drawer runners, 25 kgs bags of hot melt glue and also a lot of packing boxes up to 20 kgs for transporting to customers.”
14	Mr Convy’s affidavit referred to sustaining injury on 12 February 2014 and then described the medical treatment received and the restriction of his employment to light duties until early 2015.  He further described a deterioration of his back pain on 7 July 2015 requiring hospital attendances and referral to specialists.  His employment was ceased in August 2015.
15	The affidavit described further investigative treatment and a number of nerve root injections.  He also described being placed on a waiting list for spinal surgery in March 2016.  This surgery was ultimately cancelled after further radiological investigation.
16	Mr Convy’s affidavit described further nerve root injections and referral to a neurosurgeon, who apparently again discussed a surgical option.
17	Mr Convy described the medication he was then taking and noted continuing significant levels of lower back pain and pain extending into his left leg, together with other symptoms.
18	Finally the affidavit described an attempt to return to work with the employer doing office duties during 2016.  He had also commenced an instrument making course in early 2017, but:
“… was unable to complete the course due to my back related absences.”
19	Mr Convy’s supplementary affidavit essentially confirmed his earlier affidavit, but noted further matters relevant to this application.  He was then taking the medication Targin, one tablet twice per day:
“This medication affects my concentration and makes me drowsy, so I avoid taking increased doses.  For pain relief I also use Panadol and Nurofen.”
20	Mr Convy was continuing to suffer ongoing back pain and some intermittent leg symptoms.  His general practitioner had referred him to the Royal Melbourne Hospital neurosurgical clinic in early 2019.
21	He had done work at Monash University, but:
“… struggling with the 8 hour days due to problems with concentrating and prolonged sitting due to pain.”
22	In late 2017 he did some short-lived casual forklift driving work:
“… but I also found this was too difficult due to my back pain.”
23	Mr Convy’s most recent affidavit referred to an admission to the Monash Medical Centre in August 2017 with left upper limb pain and shortness of breath.  
24	The affidavit also made reference to his computer skills, which he described as follows:
“My computer skills were good some time ago, but I have not had any further assistance with updating my computer skills and so I do not consider they are presently very good.”
25	The affidavit made reference to matters relevant to the pain and suffering consequences of his back injury.
26	When cross-examined I noted the following matters as relevant to my determination.
•	Mr Convy had moved to Ballarat as his eldest son was attending Ballarat Grammar.
•	He was a keen guitarist and had commenced the instrument making course in 2017, and then agreed he had obtained a qualification at Certificate IV level between January and October 2017.  That course was conducted in the northern suburbs of Melbourne four days a week between 9 and 3.30, when Mr Convy was living in Clayton South.
•	Mr Convy agreed that in July and August 2016 he worked at Monash University administering the website.
•	Mr Convy agreed that he had applied for positions within the Education Department between April and October 2018.  These jobs were said to be mostly part-time ranging from 10 to 20 hours a week and generally in the area of education support.  A list of six jobs for which Mr Convy had made application in 2018 was tendered in evidence.
•	Mr Convy agreed that a position sought at the Ballarat Special School would involve students with both physical and mental disabilities or special needs, and he might possibly be required to assist in wheeling students in wheelchairs.
•	He had received one interview for an administration position at a school.  That position was for 20 hours a week.
•	Mr Convy had undertaken some study as a component of a Bachelor of Arts in creative writing.
•	He commenced the creative writing course in May 2018 and completed his assignments achieving a pass mark.
•	Mr Convy agreed that he was doing about five hours study per week and applied for jobs that were up to 20 hours per week.
•	He agreed that after doing the Monash University job between June and August 2016 he had done approximately four days casual work with a forklift in October or November 2017.
•	Mr Convy was shown an email from a labour hire agency dated 27 August 2017 and agreed this related to the forklift work.
•	Mr Convy agreed that he may have told a Dr Morley in September 2017 that he had done the forklift work probably in the first week of September. He disagreed that he had told the doctors his lawyers recommended that he did not work as it would affect his WorkCover claim.
•	He agreed seeing a Dr White at a pain management clinic around September 2017 and agreed his movement and pain had improved.
•	Mr Convy was asked about his medications and agreed he had been weaned off Targin around April 2017.
•	He agreed with the proposition that he had told Dr White he was quite happy to go back to work and was certainly able to work in a sedentary type job if he needed to.
•	He agreed he had undertaken two out of four modules of an IT training course in approximately 2008 or 2009 at a cost of $15,000.
•	Mr Convy agreed that he had told Dr White that he was weaning off Lyrica, which he eventually ceased in late 2017.
•	He was currently seeing a doctor at the Ballarat Community Health Centre and also a doctor at the Mount Clear Medical Centre.  The doctor in Ballarat was prescribing Targin as well as blood pressure medication and Effexor.
•	Mr Convy agreed that he received prescriptions for Lyrica on 17 August 2017 and 29 June 2018.
27	Mr Convy was cross-examined in some detail about histories given to medico‑legal practitioners concerning his treatment and prescribed medication.  He did not disagree with any of the histories recorded.
28	Mr Convy agreed that he had requested a prescription of Targin from a doctor at the Ballarat Community Health Centre in late August.  He was now taking that medication once or twice a day:
“I did ask him for painkillers I believe after the nerve block injection in – I think that was in August because it seemed to get a bit worse after that.”
29	There was further cross-examination concerning Mr Convy’s job seeking applications.  He was handed a document setting out screen shots of job applications for which he had applied on 14 March 2018.  Mr Convy was also referred to a resume that had been submitted by him when applying for these positions.
30	When cross-examined in relation to these particular job applications Mr Convy responded as follows:
•	He agreed that one position involved training people in welding:
“… like a week-long course.  The business builds trailers for trucks, like semi-trailers.
 And was it a full-time position?---I think so, yes.”
•	Another position was in the Ballarat and Central Highlands region for a casual delivery driver and furniture assembler.  This position was thought to be full-time and involved driving, delivering goods, working in the store and some furniture assembly and installation.
•	Another position was with Harwood Grains working in warehousing and stores.  Mr Convy agreed the tasks were similar to those performed for the employer.  It was also thought to be a full-time position.
•	Another position was with a labour hire company and broadly described as “temporary and permanent skilled and unskilled work in Ballarat.”  It was not a specific job.
•	He received an interview with a labour hire company, explained his situation and it was thought he would be better suited to forklift driving as heavy lifting might be an issue.  He expressed a willingness to undertake forklift work if it became available.
•	The final position was with Veolia in Ballarat as a forklift operator.  It was a part‑time position involving “on call” work, “I don’t think there was any set hours for that one.”
31	Mr Convy agreed he had completed various courses including occupational health and safety, business standards and procedures and agreed that would assist him in working in an office or administration environment.
32	He had attempted to do a course in massage therapy but the training organisation had gone bankrupt.  He believes this was between 2014 and 2016.
33	He had hoped to start a business giving guitar lessons in 2016, and was advertising whilst at the house in Clayton South.  He had no actual students in 2016.
34	Mr Convy agreed that he had done work with computers in the past, but believed the programs had changed and he would need further training to update his skills.
35	Finally, in cross-examination he agreed that his symptoms were probably now slightly less than they had been in 2017.  He stated there had been improvement with the pain clinic, but following the injection in September 2018, “it seemed to get a lot worse after this one.”
36	When re-examined Mr Convy was asked about his recent treatment since moving to Ballarat.  It was suggested that he had first seen a Dr Munasinghe on 25 July 2018.  Clinical notes were provided to Mr Convy and I permitted further cross-examination as those notes had not previously been exchanged.
37	When further cross-examined he maintained that some specialists have recommended surgery, whilst some have advised against it.
38	Mr Convy agreed that he had received some benefit from the pain management program at Monash Medical Centre, but was not referred by Dr Munasinghe back to that hospital.
39	Mr Convy also agreed that Dr Munasinghe had referred him to physiotherapy which had assisted “a little bit.”
40	Following these further matters put to him Mr Convy was re-examined.  I noted his evidence as follows:
•	He agreed Dr Chandra Munasinghe had prescribed Endone and Targin, but he was not taking the Endone at present as he had reactions to it.
“Targin all along has been more – it takes the edge of more than anything.  It doesn’t really relieve the pain so much.  I get a bit of drowsiness with it as well.”
•	He did not believe that Targin affected his ability to drive, but it did affect his ability to concentrate and his memory.
•	Mr Convy agreed that he had used a computer since re-commencing Targin, but this did not go very well.
“The computer stuff used to be, like, second nature, but now I’ve got to try and think of what I have to do, and I don’t always get – it doesn’t always come to me what I have to do.”
41	Finally Mr Convy was taken to a number of suggested alternative jobs which had been suggested in cross-examination to be suitable for him.  In general terms he did not agree with their suitability as described to him in re‑examination.
The plaintiff’s medical evidence
42	The plaintiff tendered into evidence a vast number of medical reports, many of which concerned the initial treatment and management of Mr Convy’s back injury and were not particularly relevant to the present application.  Ultimately there was no argument raised by the defendant challenging the original back injury in 2014.
43	Prior to relocating to Ballarat in early 2018, Mr Convy had been under the care of Dr Eric Soon at Burwood Health Care for a number of years.  The plaintiff’s counsel tendered eight reports from 20 April 2015 to 6 August 2018.  In Dr Soon’s most recent report he stated as follows:
“The diagnosis of his spinal condition is L4/5 disc protrusion with possible impingement of the left L5 nerve root.
 …
 He is incapacitated to the extent that he will not be able to return to his pre-injury employment.
 He may be suitable for employment that does not involve heavy lifting or repeated moving and bending of his back.  
 At this stage, Mr Convy is probably only suited for part-time employment.  The number of hours will depend on the specific job and the working environment/conditions.
 He is not totally incapacitated for any employment, but will be severely restricted, due to his spinal condition and the restrictions mentioned above.”
44	A report from Monash Health dated 7 July 2017 notes Mr Convy suffering ongoing back pain since July 2015, and undergoing four nerve root injections between 7 August 2015 and 25 August 2016.  He was then referred to a pain clinic in early 2017, where  a management plan was developed.
45	Since moving to the Ballarat region Mr Convy has been under the care of both Dr Munasinghe at Ballarat Community Health and Dr Saeedullah at the Mount Clear Medical Centre.  It appears from the material that Dr Munasinghe referred Mr Convy to the neurosurgical unit at Royal Melbourne Hospital on 2 August 2018 following an MRI arranged by him in late July of that year.  There was otherwise no report from Dr Munasinghe tendered in evidence.
46	Dr Saeedullah reported to the plaintiff’s solicitors on 27 August 2018.  Dr Saeedullah concluded that Mr Convy:
“… has developed chronic back pain as a result of degenerative spine.  It can be a very difficult condition to manage at times and can have a significant impact on patient physical and emotional health.”
47	He did not believe Mr Convy was suitable for pre-injury work, but did state:
“I, however, do believe that he can become a suitable candidate for a desk job e.g. administration with modifications like reduced working hours, posture modifications.  An occupational therapist can be of valuable help in this regard.”
48	He also believed that returning Mr Convy to the workforce would be a very slow process.
49	Mr Convy came under the care of Dr Bethany White, specialist anaesthetist, at the pain management clinic to which he was referred by Monash Medical Centre.  Dr White reported to Dr Soon on 5 April 2017, 26 September 2017 and 9 October 2017.  Those reports were also tendered in evidence.  These reports confirmed Mr Convy having successfully completed a pain management program at the Kingston Centre in 2017.
50	The plaintiff’s solicitors received a further report from Monash Health dated 17 July 2018.  This report outlined the treatment and noted a further admission by Mr Convy on 13 December 2017 for a day procedure related to further management of his back pain.
51	The plaintiff tendered into evidence four reports from Mr Paul D’Urso, neurosurgeon, a single report from Dr David Eaton, occupational physician, and two reports from Dr Joseph Slesenger, occupational physician.
52	Mr D’Urso examined Mr Convy initially in August 2016.  He provided a report to the plaintiff’s solicitors dated 30 August 2016.  At that time he noted Mr Convy was working casually, performing light office duties at Monash University, but had not actually worked for some 10 days at the time of the examination.  Mr D’Urso diagnosed the plaintiff as suffering from a symptomatic L4/5 disc prolapse, which was causing some degree of nerve root compression.  He stated that Mr Convy was suffering from residual symptoms consistent with his injury and that he was incapable of his pre-injury duties.  He did express an opinion as to the future progress at that time stating:
“He may well have a degree of permanent incapacity of a partial nature, related to the L4-5 disc injury and some L4 and L5 radicular symptoms.  Stephen will be at risk of re-injuring the L4-5 disc if he returns to heavy physical employment or repetitive bending, twisting or lifting activities.  There would be a degree of deterioration which would appear likely, given that the disc has started to undergo significant rupture.”
53	Mr D’Urso saw Mr Convy again on 13 November 2017 at which time he noted that Mr Convy was engaged in part-time study to become an instrument maker.  Mr D’Urso’s diagnosis remained the same and he summarised his opinion in relation to work capacity as follows:
“Stephen does not have capacity for pre-injury employment or unrestricted physical or manual employment activity.  Stephen may have capacity for part-time light employment, but I would place restrictions on his capacity at this time.  Stephen would benefit from a multidisciplinary rehabilitation programme, with a  strong emphasis on functional restoration therapy.  Vocational retraining and assistance could well be required to find suitable employment in the future.  Surgical intervention remains an option for Stephen should his condition deteriorate if contemporary MRI imaging revealed evidence of persisting nerve root compression.”
54	Mr D’Urso examined Mr Convy again on 6 July 2018 and provided a report dated 11 July 2018.  He obtained a history from Mr Convy that the condition had deteriorated a little from the time of his 2017 examination. Mr D’Urso’s diagnosis remained the same. 
55	His opinion most recently was somewhat guarded recommending an MRI scan to determine whether or not there was some persisting disc prolapse causing nerve root compression with a view to surgery if appropriate.  He believed the prognosis in the long-term would be satisfactory:
“I would hope that there will be some improvement in Stephen’s condition with time.  He may well have a degree of permanent incapacity of a partial nature.”
56	Mr D’Urso again expressed a view that Mr Convy did not have a capacity for unrestricted physical or manual employment and placed restrictions on lifting in excess of 10 to 15 kilograms and repetitive bending and twisting movements in the workplace.  Mr D’Urso also noted that Mr Convy should not be required to sit, walk or stand for periods in excess of one hour at a time.  He suggested an initial trial of 16 to 20 hours, with possible progression to full-time light employment.
57	In his summary he again suggested a multi-disciplinary rehabilitation program to restore function.
58	Dr Eaton examined Mr Convy on one occasion, 8 September 2016.  He reported to the plaintiff’s solicitors on the same date.  At the time of this examination Dr Eaton noted that the plaintiff had ceased work with Hafele in August 2015 and started doing some casual work in office and administrative tasks in July 2016.  This work lasted approximately two months and Mr Convy stopped because the prolonged sitting increased his back pain.
59	Dr Eaton diagnosed the injury as an aggravation of lumbar spondylosis, together with secondary symptoms due to the ingestion of analgesia.  Dr Eaton was of the view that Mr Convy would remain permanently unable to return to his full pre-injury duties and stated:
“… there is no suitable employment Mr Convy could currently perform on a consistent basis. … Mr Convy has no current work capacity.  That situation could change in the future if Mr Convy receives some further medical and rehabilitation treatment; without that treatment, I consider he will remain incapacitated for suitable employment indefinitely.”
60	Dr Slesenger examined Mr Convy on 5 July 2018.  He prepared an initial report to the plaintiff’s solicitors dated 10 July 018.  He was subsequently provided with further information, including the vocational assessment report dated 24 September 2018 which had been relied on by the defendant.  Dr Slesenger then prepared a supplementary report dated 2 November 2018.
61	Dr Slesenger’s initial opinion had been that Mr Convy was suffering from chronic lower back pain with radiating features, but no evidence of radiculopathy.  He had also opined that his retained capacity for work was restricted in various activities and he recommended a return to work for four hours per day, four days per week.
62	Dr Slesenger reviewed the specific roles which had been identified in the vocational assessment report and generally opined that Mr Convy was capable of returning to many of the roles, albeit with some further assessment or modification required.  He nevertheless maintained his earlier opinion that the work in these roles should be limited to four hours per day, four days per week:
“I anticipate that should he be required to work longer hours, he is unlikely to be able to attend work on a consistent and reliable basis.”
The defendant’s medical evidence
63	The defendant relied upon medical reports from Dr Vaidya Bala, consultant physician in rehabilitation medicine, and a single report from each of Mr Gerald Moran and Mr Rodney Simm, orthopaedic surgeons.
64	Dr Bala provided three reports dated 22 September 2015, 26 September 2016 and 21 August 2018.  He first examined Mr Convy on 22 September 2015.  At that time he felt that Mr Convy had sustained acute lower back strains and sprains in February 2014, which may have flared-up in March 2015, given the repetitive nature of the work he was then performing.  He believed Mr Convy had a capacity to return to pre-injury modified and alternative duties at that time, although he did suggest it would be appropriate for Mr Convy to be referred to a “functional restorative/work hardening programme” involving physiotherapy and occupational therapy.
65	Dr Bala again examined Mr Convy on 27 September 2016 noting that there was no active treatment at that stage, although he had been referred to a pain management program by his general practitioner.  His opinion at that stage was that Mr Convy had initially suffered a sprain or strain injury to his lower back, which had progressed to a chronic pain disorder with persistent lower back pain.
66	Dr Bala regarded the prognosis for a cure of the lower back pain as extremely poor, and suggested a pain management program.  Dr Bala believed the work‑related aggravation had ceased and felt Mr Convy had a capacity for suitable employment suggesting administrative and office-based duties.
67	Dr Bala most recently examined Mr Convy on 16 August 2018.  At that time he noted that Mr Convy had commenced a pain management program in mid‑2017, but was currently awaiting an appointment to see a pain specialist.  He also noted attempts at casual administrative work, but apparently without great success.  He diagnosed an initial acute strain and sprain injury to the lower back in 2014 which had been complicated to “chronic persistent pain syndrome with a background history of degenerative disease.”  He regarded Mr Convy as having a capacity for modified duties with appropriate weight lifting and other restrictions stating:
“If the worker were to be involved in manual labour without any appropriate support, he would be at risk of aggravating his lower back pain which could progress to an undesirable neurological sequelae.”
68	Mr Moran examined Mr Convy on 14 March 2017 and provided a report to the defendant’s insurer on the following day.  He diagnosed Mr Convy as suffering from an L4/5 disc prolapse and provided an impairment assessment.  It would appear his opinion was not sought in relation to other matters.
69	Mr Simm examined Mr Convy on 7 August 2018 and reported to the defendant’s solicitors on the same date.  Mr Simm noted Mr Convy reporting that his condition had not significantly improved since ceasing work in 2015.  He reported pain levels varying from 3-4/10 to 7-8/10, and noted a number of aggravating factors.
70	Mr Simm diagnosed symptomatic lumbar disc degeneration, probably at L4/5 level.  He believed that Mr Convy suffered from an established pattern of chronic symptoms which would persist, but noted the treatment requirements were minimal.  Mr Simm did not believe that Mr Convy was capable of returning to pre‑injury employment in the foreseeable future, but believed he was capable of suitable employment such as light process work or administrative work.
Vocational assessments
71	The defendant relied upon a detailed vocational assessment dated 24 September 2018, prepared by Robyn Willett, an employment placement consultant and Janette Ash, occupational therapist and injury management consultant.
72	The defendant also tendered into evidence a resume prepared by Mr Convy which is undated, but clearly prepared prior to his relocation to Ballarat.
73	The plaintiff tendered into evidence a short report from Mary Oliver at Flexi Personnel which notes the defendant’s vocational assessment report and sets out hourly award rates of pay applicable to the various positions identified in the defendant’s report.
74	The report relied upon by the defendant sets out 12 potential positions identified as suitable job options for Mr Convy.  Six of these positions are clerical or administrative in nature, a further two relate to customer service or enquiry.  The remaining positions identified are buyer’s assistance, rental sales person, product assembler and packer.
75	In the body of the report worksite assessments were conducted in relation to roles described as order clerk at a retail hardware store, rental sales person with a car hire business, building administration officer with a local council and a despatch clerk with a paper products manufacturer.
76	The pay rates set out for those positions varied from $18.18 per hour for the car rental customer service position, to a salary of $62,026.41 to $66,453.77 being specified for the position of building administration officer.
77	The material relied upon by the plaintiff set out award rates ranging from $19.47 per hour for the product assembler position, to $21.72 per hour for the building administration officer position.  
78	I accept that the material relied upon by the defendant refers to actual advertised positions, whereas the plaintiff’s material refers to hourly rates of pay referrable to particular industrial awards.
Analysis
79	The principal area of dispute between the parties concerned an assessment of Mr Convy’s after-injury residual earning capacity.  Although Ms Tsikaris made no concession in relation to the pain and suffering issue, her final address focused largely on the pecuniary loss aspect of Mr Convy’s application.
80	I accept Mr Convy as an honest and reliable witness who did not seek to exaggerate or embellish the evidence given before me.  His attempts to re‑enter the workforce since the cessation of employment with Hafele are consistent with a well-motivated person seeking to minimise the ongoing restrictions of his workplace injury.
81	It was clear during the cross-examination of the plaintiff that material relating to his brief employment as a forklift driver and the job applications made during March 2018 are more indicative of Mr Convy’s aspiration to return to employment than his actual capacity.  A similar comment can be made in relation to the education jobs for which applications were submitted between April and October 2018.  One of the positions for which Mr Convy applied was that of a teacher aide at the Ballarat Specialist School, where it was quite likely that he would have been required to assist students with a variety of physical disabilities.  Clearly the medical evidence would establish that he would not be fit for such a role on a reliable basis.  Indeed, his answers in cross-examination strongly suggested that he had little awareness of the actual requirements of these positions, even to the extent of the hours that would have been required of him.
82	I also accept that the full-time administrative work Mr Convy had performed at Monash University in 2017 was beyond his capacity to perform reliably on a full‑time basis, nevertheless this actual work, together with his ongoing willingness to seek employment, suggests that he does have residual capacity, albeit limited by the consequences of his workplace injury.
83	The medical evidence satisfies me that the plaintiff continues to suffer from the consequences of an L4/5 disc protrusion in accordance with the opinion of his long-term general practitioner, Dr Soon.  This opinion was supported by the consultant neurosurgeon, Mr D’Urso, and essentially also the opinions of Doctors Eaton and Slesenger, whose opinions were sought by the plaintiff’s solicitors.  These opinions are essentially consistent with the views expressed by the two orthopaedic surgeons retained by the defendant, Mr Moran and Mr Simm.
84	I do not accept the opinion of Dr Bala suggesting that the plaintiff had initially suffered a strain or sprain type injury in 2014 which had subsequently progressed to a chronic pain disorder.  A more appropriate conclusion would seem to be an initial discal injury which may be described as the progression of degenerative disease with ongoing symptoms which have continued, albeit with variable intensity.
85	Although there is little doubt that there are some non-organic factors present in Mr Convy’s condition, I am able to find that there is an underlying organic basis for his ongoing symptomatology.  I am fortified in such a conclusion on three bases.
i)	He accepted that the pain management program undertaken by him in 2017 had led to an improvement in his symptomatology.
ii)	The referral of Mr Convy to Royal Melbourne Hospital in August 2018 and the ongoing neurosurgical monitoring of his condition supports the existence of an ongoing organic lesion;
iii)	The recent prescription of opiate based pain killers by Dr Munasinghe in August 2018 is again consistent with the existence of an ongoing organic lesion.
86	Overwhelmingly the medical evidence in this case leads to a conclusion that the plaintiff is unfit for full-time pre-injury employment.  I am satisfied that he has a reduced capacity for employment, both in terms of the activities and in terms of his reliability given the variable nature of his symptoms.
87	In order for the plaintiff to be granted leave in respect of loss of earning capacity he needs to satisfy me that he currently suffers a loss of earning capacity of 60 per cent or more, and that such loss will continue permanently.
88	In the taxation year ended 30 June 2013 the plaintiff’s income was agreed at $39,639.  A similar figure was earned by him in 2012.  I do note that in the 2014 taxation year the plaintiff’s income had dropped to $33,206.  
89	In final address Ms Tsikaris submitted that I should not necessarily take the highest figure in the three years pre and post earnings as representing that which “most fairly reflects the worker’s earning capacity.”  Despite the absence of some explanation by the plaintiff concerning this drop in earnings in 2014, it seems to me that two consecutive years of earnings slightly in excess of $39,500 followed by a decrease to a figure in excess of $33,000 in the year when the injury was actually sustained, leads to a conclusion that a figure of $39,639 or $762.28 per week, can be accepted as a figure that fairly represents Mr Convy’s pre‑injury employment capacity.
90	Although the present case is not analogous to the facts in Jessop (where a worker was working to less than her actual capacity when injured) the principle endorsed by the Court of Appeal in that case must be applied here.  The Court described a worker’s earning capacity as representing:
“… a capital asset which, when exercised, produces income from personal exertion.  It follows that a worker’s ability to earn income through personal exertion depends on the nature and quality of the worker’s capital asset and his or her capacity and willingness to use it to earn income.  Thus, the worker’s physical and mental capacities to work are relevant, as are the type of work the worker is able to perform, the remuneration for that work and the hours that the worker is willing to work.”
91	Mr Convy needs to satisfy me that he is presently, and in the foreseeable future, incapable of earning less than 60 per cent of that amount (i.e. $457.37).
92	Recent medical opinions vary as to the number of hours of which Mr Convy is capable.  Mr Simm suggests full-time employment, whereas Mr D’Urso suggested an initial return at 16 to 20 hours with a graded increase in hours in intensity of employment over a subsequent period of three months.  “If successful a return to work trial could be converted to full-time light employment activity.”
93	Dr Slesenger recommended a return to work for 16 hours, being four hours a day, four days per week.
94	Having reviewed the medical material and also noted the actual work which Mr Convy had attempted subsequent to his injury, I conclude that his current capacity, and that which is likely to continue, will be largely regulated by the fluctuations in his ongoing medical condition requiring medication, various forms of rehabilitation and the possibility of surgery.  In my view the opinion of Dr Slesenger, given his speciality in occupational medicine, most accurately describes the current and likely future capacity retained by Mr Convy. 
95	I therefore conclude that 16 hours per week in suitable employment is a realistic limitation for him on a permanent basis.
96	The calculation of residual earning capacity depends largely on an appropriate after injury hourly earnings figure.  The plaintiff’s counsel accepted that the hourly rates set out in Ms Oliver’s report were derived from award rates and did not relate to any particular advertised position.  The material relied upon by the defendant specifies in particular roles of order clerk with a hardware retail store in the Ballarat region, specifying earnings of $22.89 per hour, and a role of rental sales person with a car rental company showing an hourly rate of $18.18.  The two other positions for which work site assessments were conducted were that of a building administration officer with a local council.  Notwithstanding the relatively low physical requirements there is no reason to indicate why the plaintiff, who had previously done mainly physical and lower level administrative work, would in any way be qualified for this position.  The final position of despatch clerk was based on a large paper products manufacturer located in Melbourne’s northern suburbs which would not seem appropriate for a worker now based in the Ballarat region.
97	The nature of the vocational reports relied upon by each of the parties is to some extent unsatisfactory in terms of the basis upon which the earnings figures can be said to relate to jobs suitable to the plaintiff.  The report relied upon by the defendant provides a somewhat more accurate guide in that it is derived from actual positions advertised in an area reasonably accessible by the plaintiff.  In respect of the two positions for which he is suited, the hourly rates vary between $18.18 per hour and $22.89 per hour.
98	If the higher of these figures is applied to the number of hours I have found he could work, his after injury earning capacity is limited to $366.24 per week.
99	I therefore find that the plaintiff has a maximum capacity, presently and into the foreseeable future, to earn $366.24 per week, which is less than 60 per cent of his without injury earnings.  He therefore makes out his application for leave in respect of pecuniary loss.
100	In view of those findings it is unnecessary to separately consider Mr Convy’s application for leave in respect of pain and suffering damages.
Conclusion
101	I propose to grant the plaintiff’s application in relation to both pecuniary loss damages and pain and suffering.
102	I will hear the parties in respect of the formal orders sought and on the question of costs.
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