Where a worker establishes a prima facie case that no suitable employment exists due to the disabling effect of injury, the employer bears an evidentiary onus to adduce evidence of specific alternative employment in the worker's area. Where the only employer with suitable jobs has refused to re-hire the worker, those jobs cannot be relied upon as evidence of suitable employment. In serious injury applications under s 134AB of the Accident Compensation Act 1985 (Vic), the County Court may not have regard to a Calderbank offer in determining costs, because the Calderbank procedure is not recognised by the County Court rules and s 134AB(27)(a) is subject only to 'the rules of the court'. The formal offer of compromise procedure under Order 26 or the costs apportionment procedure under r 63A.04 remain available.
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