Kelly v Victorian WorkCover Authority
[2024] VCC 689
•17 May 2024 (ex tempore)
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-23-05629
| SCOTT ADAM KELLY | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE FRAATZ | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 May 2024 | |
DATE OF JUDGMENT: | 17 May 2024 (ex tempore) | |
CASE MAY BE CITED AS: | Kelly v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 689 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the lumbar spine – pain and suffering consequences conceded as “serious” – loss of earnings – residual capacity for employment
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), s325
Cases Cited:Humphries and Anor v Poljak [1992] 2 VR 129; Acir v Frosster Pty Ltd [2009] VSC 454; Richter v Driscoll (2016) 51 VR 91; Harris v DJD Earthmoving Pty Ltd [2016] VSCA 188; Herald & Weekly Times Ltd & Victorian WorkCover Authority v Jessop [2014] VSCA 292; Yirga-Denbu v Victorian WorkCover Authority (2018) 57 VR 545
Judgment: Leave granted to commence a proceeding for pain and suffering and pecuniary loss damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms F Ryan SC with Ms Y Al-Azzawi | Maurice Blackburn Lawyers |
| For the Defendant | Mr S Pinkstone | Russell Kennedy Lawyers |
HIS HONOUR:
1The plaintiff, Scott Kelly, is a qualified plumber, now aged 44 years old. He commenced employment with the relevant employer, Globalwide Plumbing, in November 2018, performing civil‑type work.
2On 16 April 2019, he was working at a site in Dandenong South, performing trenching duties, including laying pipes inside a trench, when a piece of steel he understands was from the roof of the structure that was being built at the site, fell and struck his back and left side. Mr Kelly was taken to Dandenong Hospital by ambulance, where he spent a number of days as an inpatient.
3As a consequence of the injuries sustained in this incident, his employment was terminated in or about mid‑2020 and he has not worked since.
4It is not in dispute that Mr Kelly suffered traumatic injury to his lumbar region, including fracturing of the transverse processes on the left side of his lower back, from L1 through to L4, and rib fractures from T8 through to T12 on the left side, with left psoas haematoma.
5Mr Kelly seeks leave to bring common law proceedings pursuant to s335 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (“the Act”) under paragraph (a) of the relevant definition of “serious injury” for pain and suffering and loss of earnings consequences, being for the permanent serious impairment or loss of a body function.
6The body function relied upon is the lumbar spine.
7Appropriately, the Victorian WorkCover Authority (“VWA”), concedes that the pain and suffering consequences of his injury are “serious”. As such, it accepts that Mr Kelly’s injury to the spine is productive of ongoing permanent impairment, and that the consequences of that injury satisfy the statutory test.
8In my view, Mr Kelly’s affidavit material and the medical evidence support a finding as to causation and of a persisting compensable injury to the lumbar spine, the consequences of which are at least “very considerable”.[1]
[1] Humphries and Anor v Poljak [1992] 2 VR 129 at 140
9The VWA submits, however, that the economic loss consequences to Mr Kelly do not satisfy the statutory test, and that he ought not be granted leave under s335 of the Act to bring common law proceedings to recover pecuniary loss damages for his lumbar spine injury sustained in the course of his employment.
10The principal factual issue in dispute relates to Mr Kelly’s retained capacity for employment, noting any theoretical capacity has not been exercised in nearly four years since he ceased employment in 2020.
11Late in 2019, Mr Kelly returned to work on light duties on a gradual basis over six months or so, up to three days a week, four hours a day, not on consecutive days. He was ultimately terminated in 2020, as his employer considered he was not able to discharge his duties as a plumber.
12There are no issues of credit. Surveillance shown to the plaintiff during cross‑examination did not depict the plaintiff in any activity that was not consistent with his evidence.[2] Indeed, it appeared to me that Mr Kelly was moving slowly and carefully at times; and after placing a carton of beer into his car, weighing approximately 9 kilograms, he was observed holding or clutching his low back, as if in pain.
[2] Exhibit 10
The legal principles
13The plaintiff bears the onus of demonstrating that his impairment is permanent and the economic loss consequences to him, when judged by comparison with other cases in the range of possible impairments or losses of a body function, are fairly described at least as “very considerable” and certainly more than “significant” or “marked” in accordance with the narrative test set out in s325(2)(a), (b) and (c) of the Act.[3]
[3] Humphries and Anor v Poljak (supra) at 140
14To satisfy the requisite threshold in relation to pecuniary loss, I must also be satisfied that Mr Kelly has suffered a permanent loss of earning capacity of 40 per cent or more, as set out in ss325(2)(e), (f) and (g) of the Act.
15The measure of the claimed loss of earning capacity requires a comparison of two matters:
(a) the gross income the plaintiff is earning or is capable of earning in suitable employment at the date of the hearing (“after injury” earnings); and
(b) the gross income that the plaintiff was earning or was capable of earning during that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity had the injury not occurred (“without injury” earnings).
16Any such comparison should accord with the observations of J Forrest J in Acir v Frosster Pty Ltd,[4] that s134AB of the Accident Compensation Act 1985, the analogue provision to s325, is –
“… a gateway provision which either precludes or permits a worker to bring a claim for damages for loss of earning capacity. It is a part of the serious injury process, not that of assessment of damages. It does not involve any determination (interim or final) of actual loss of earning capacity sustained by the worker.”
[4] [2009] VSC 454 at paragraph [171]
17I am required to assess Mr Kelly’s capacity for employment as at the date of the hearing of this application.
18I must also consider whether Mr Kelly has any realistic capacity to return to full‑time employment which might otherwise be suitable, having regard to his age, education and skills, work experience or other matters.[5]
[5]Richter v Driscoll (2016) 51 VR 91 at paragraphs [74]-[97]; Harris v DJD Earthmoving Pty Ltd [2016] VSCA 188
19I regard the plaintiff as being an honest and accurate witness. I accept both his oral evidence and what is contained in his affidavits.
Background
20Mr Kelly, for the majority of his working life, has worked in physical roles. After completing Year 11 at high school, he spent about two years working on a rose farm and then a short period of time working in Morwell in a tyre retreading business. He completed two years of a building apprenticeship in carpentry, both in Victoria and Queensland, before he returned to Victoria and undertook a plumbing apprenticeship with Wayne Trinder over four years. He worked as a qualified plumber for eight years after his apprenticeship.
21In 2015, he moved to the Berwick area and worked for Richstone Plumbing and James Larkin Plumbing.
22Over the course of his work, he has had aches and pains from time to time as a consequence of heavy manual labour, but no relevant injury. He also sustained an injury to the knee playing football and had a knee reconstruction.
23His work with Globalwide Plumbing involved civil‑type work typical of his role as a plumber over time; connecting new builds, warehouses and factories into the storm system. The work was heavy and involved the laying of pipes and trenches, and digging with equipment.
Return to work
24After discharge from hospital – he did not require surgery – and a period of time to rest to allow the fractures to reunite, Mr Kelly returned to work in about October 2019, performing light duties in the sheds. His work consisted of putting away small plumbing supplies and some general cleaning.
25In April 2020, his employer notified him that his employment would be terminated unless his doctor certified he was, or would be by a fixed date, physically able to perform the inherent requirements of a plumber. That certification was not available and Mr Kelly was terminated in or about June 2020.
Injury, treatment and consequences
26Mr Kelly underwent a CT scan of the lumbar spine, which showed mildly displaced fractures of the L1‑L4 transverse processes, a left psoas haematoma and mildly displaced rib fractures at T8 to T12.[6]
[6] Plaintiff’s Court Book (“PCB”) 136
27He was assessed for treatment by neurosurgeon, Associate Professor Tony Goldschlager, on 7 September 2020, who referred him to Dr Terence Lim, a pain specialist.[7] Upon assessment by Dr Lim in January 2021, Dr Lim found that persistent pain and exacerbation on activity was due to the consequence of the work‑related injury.[8]
[7] Report of Professor Tony Goldschlager dated 7 September 2020, PCB 45
[8] Report of Dr Terence Lim dated 20 January 2021, PCB 47
28He was assessed in the North Eastern Rehabilitation Centre on 18 May 2021. The medication noted at the time was mirtazapine, tapentadol, amitriptyline and Nurofen and Panadol as required.[9] At that stage, he was taking strong prescription medication daily, together with two Nurofen and four Panadol a day.
[9] North Eastern Rehabilitation Centre Initial Assessment dated 12 May 2021, PCB 48 and 51
29On 6 October 2021, rehabilitation specialist, Dr Kenneth Shum, conducted an examination of Mr Kelly which revealed a stiff lumbar spine and reduced hip mobility, and tenderness upon palpation of his left lumbar paraspinals and costal areas, correlating to the previous site of the fractures.[10]
[10] Report of Dr Kenneth Shum dated 6 October 2021, PCB 58
30A nuclear bone scintigraphy in December 2021, in the context of persistent lower‑back pain, showed old fractures in the left transverse process of L1‑L4 and healing fractures in the posterolateral aspect of the left eleventh rib.[11]
[11] PCB 139
31Mr Kelly attended Network Pain Management in 2022.[12]
[12] Reports of Ms Catherine Ecclestone dated 2 June 2022 and 5 September 2022, PCB 60 and 71
32The plaintiff’s general practitioner, Dr Maia Hou, on 20 December 2022, reported that Mr Kelly had no capacity for his pre‑injury duties.[13] In Dr Hou’s opinion:
“Prognosis is hard to predict, but he will need lifelong support and help with managing pain, and these [scil this] is likely to be a combination of medications, psychological support and specialist input at times.”
[13] Report of Dr Maia Hou dated 20 December 2022, PCB 77-78
33Dr Hou was hopeful Mr Kelly would be able to return to work on modified duties given time, support and further training.
34In a later report of 9 January 2024, Dr Hou opined as follows:
“I believe Mr Kelly’s injuries and its consequences are likely to be permanent and continues (sic) into [the] foreseeable future. This is base[d] on his slow progresses since the injury (happened in 4/2019) and lack of improvement despite various treatment methods.”[14]
[14] Report of Dr Maia Hou dated 9 January 2024, PCB 79-80
35I find that Mr Kelly suffered a traumatic injury to his lumbar region, including fracturing of the transverse processes on the left side from L1‑L4 and rib fractures from T8‑T12 on the left side. Subsequent to this, he developed post‑traumatic chronic pain in his posterolateral left chest wall and his left lower back. This is an organically-based condition relevant to the work injury to his lumbar spine.[15]
[15]Report of Dr Richard Sulivan dated 28 November 2023, PCB 93 and 97; Report of Dr Kilner Brasier dated 23 January 2024, PCB 123 and 127
36Mr Kelly has constant daily pain and remains subject to regular flare‑ups, including in relatively innocuous circumstances, such as attending a recent school assembly for his daughters. In his further affidavit in support of this application, he deposed as follows:
“… standing in one spot for any more than around 15 [minutes] can really seriously flare up my back pain. For example, at the start of the school year this year, 2024, I attended an Assembly for my daughters and I was in very severe pain during that Assembly. I needed to just go home and look after my back.”[16]
[16] Further affidavit of the plaintiff affirmed 15 April 2024, at paragraph [15], PCB 22
37Before his injury, Mr Kelly enjoyed working full time as a plumber and being active with his daughters, who are now aged 10 and 13.[17]
[17] Ibid, at paragraph [17], PCB 22
Loss of earnings
38Mr Kelly has not worked in his pre‑injury employment, or at all, since mid 2020, when his employment with Globalwide Plumbing was terminated.
39The VWA accepts that Mr Kelly cannot return to his pre‑injury employment as a plumber due to his ongoing impairment to the lumbar spine but submitted that:
(a) he has capacity to work in suitable employment;
(b) he currently has capacity to work four hours a day Monday, Wednesday and Friday, based upon the Certificate of Capacity of Dr Akter;[18] and
(c) his capacity should increase over time, based on the report of orthopaedic surgeon, Mr Thomas Kossmann.[19] Following his examination in December 2023, Mr Kossmann reported to the plaintiff’s solicitors:
“… I recommend that he trials one of the recommended vocational options in a return‑to‑work program, initially on limited hours, two to three hours every second day, and slowly increasing. Time will tell if he is able to work on a consistent, reliable and permanent basis without the risk of re‑injury. I cannot guarantee Mr Kelly will be able to work full‑time. … .”[20]
[18] Defendant’s Court Book (“DCB”) 10
[19] Report of Mr Thomas Kossmann dated 18 December 2023, PCB 109
[20] Ibid, at PCB 116
40Mr Kelly’s case is that the medical evidence supports a finding that he is subject to significant employment restrictions. As a consequence of those restrictions, there is no suitable employment available at all to him. He relies on the opinion of Dr Richard Sullivan, pain physician.
41In the alternative, counsel for the plaintiff, Fiona Ryan SC, submitted that Mr Kelly has suffered a greater than 40 per cent loss of earning capacity based on at least the following matters:
(a) at present, Mr Kelly’s general practitioner and Mr Kossmann say he has the capacity to work three non‑consecutive days and limited hours;
(b) the return to work efforts of Mr Kelly in 2020 only got to three days a week, four hours a day;
(c) Mr Kelly’s evidence that he does not have capacity to perform many of the duties at all, or otherwise, on a full‑time basis, in roles that have been identified to him by rehabilitation providers. Ms Ryan SC submitted that this evidence is entirely consistent with the restrictions identified by his treating doctors and the surveillance footage.
42Section 325(2)(e) of the Act requires the Court to determine a figure of gross income which most fairly reflects the earning capacity of the worker without injury.[21]
[21]Acir v Frosster Pty Ltd (supra) ; Herald & Weekly Times Ltd & Victorian WorkCover Authority v Jessop [2014] VSCA 292 at paragraphs [42]-[44]
43In this application, I find the figure for “without injury” earnings that most fairly reflects his loss of earning capacity is $104,000. This figure is derived from Mr Kelly’s evidence, which I accept, that at the time of his injury, he was working for Globalwide Plumbing on a full‑time basis, 40 hours per week at $50 per hour,[22] which annualises to $104,000.
[22] Affidavit of the plaintiff affirmed 6 June 2023 at paragraph [25], PCB 11-12
44Income tax returns were not available for the financial year in which he was injured, but I accept his evidence that he was working full time, plus overtime, and would always work if work was available. I also note his agreed income as a plumber in the years before injury at $95,451 and $76,764 respectively.
45It remains, then, to assess the amount of “after injury” earnings. Mr Kelly is not working, so for present purposes the Court must determine the gross annual income he is capable of earning in suitable employment.
Employment restrictions
46Mr Kelly’s injuries have left him with significant restrictions:
(a) occupational physician Dr Michael Baynes, in his report of 13 May 2021, stated:
“The worker is fit for alternative duties [as a plumber] where there is no lifting greater than 5kg and no lifting from below knee height or above shoulder height. The worker should not work with constrained postures and should be able to rotate postures between sitting, standing and walking. I believe a return to work on a limited hours basis of 25hr[s] per week with a progressive increase in hours with work hardening would be appropriate.”
“… standing is limited to 20min[s] … .”[23]
[23] Report of Dr Michael Baynes dated 13 May 2021, DCB 34 and 31
I pause to observe that this is a somewhat optimistic opinion, given the demonstrated return to work efforts of Mr Kelly. It is also out of date.
(b) a more recent opinion of Dr Richard Sullivan, dated 28 November 2023, includes the following restrictions:
“A sitting tolerance of no more than 30 minutes, [a] standing tolerance of no more than 25 minutes, [a] walking tolerance of no more than 30 minutes, a lifting capacity of no more than 10 kilograms from bench height and without lifting overhead and a carrying capacity of no more than five kilograms in either upper limb and a driving tolerance of 20 minutes before experiencing provocation of left‑sided low back pain or left chest wall pain.”[24]
[24] PCB 95
(c) orthopaedic surgeon Mr Kossmann, in his report of 18 December 2023, listed the following restrictions:
“… Mr Kelly will not be able to engage in any physically demanding work and I recommend that he abstains from work where he has to walk long distances, walk on uneven ground, walk up stairs and downstairs, walk on inclines and declines, climb up and down ladders, kneel or squat, or carry heavy items weighing more than 2‑5kg. In my opinion, Mr Kelly’s incapacity will continue for the foreseeable future.”[25]
[25] PCB 116
(d) general practitioner Dr Maia Hou’s report, dated 9 January 2024, includes the following restrictions:
“Mr Kelly’s injuries means he find[s] it hard to sit or stand for prolonged periods of time, he avoid[s] lifting heavy objects and avoid[s] bending/twisting motions of his back as these could increase his pain level. …
I believe Mr Kelly’s injuries and its consequences are likely to be permanent and continues (sic) into [the] foreseeable future. This is base[d] on his slow progresses since the injury (happened 4/2019) and lack of improvement despite various treatment methods.
It is likely that Mr Kelly will not be able to perform any heavy manual job and also his future employment needs to be flexible to accommodate his needs as he may need time off for treatment.”[26]
[26] PCB 80
(e) in Dr Hou’s later report, dated 23 January 2024, he stated:
“Mr Kelly does have capacity for suitable employments, provided he can have regular breaks for rest and stretching exercise, avoids lifting heavy objects of more than 10 Kg. He also has to avoid repetitive use /bending/twisting of his back. … .”[27]
[27] Report of Dr Maia Hou dated 23 January 2024, DCB 59
(f) Dr Kilner Braiser, in his report of 23 January 2024, stated:
“I would impose the following restrictions on any employment activities Mr Kelly may choose to undertake:
-no heavy lifting or carrying more than 10 kg at all from waist level;
-no sitting for extended periods of time;
-no squatting, kneeling or crouching;
-no repetitive torso twisting movements;
-no walking for more than 30 minutes at a time;
-no heavy pushing or pulling;
-no driving for extended periods greater than one hour;
-no manipulating heavy tools;
-no working at heights or confined spaces;
-no use of ladders; and
-avoid machinery vibration.”[28]
[28] PCB 128
(g) Dr Ferdousi Akter, on 19 April 2024, in a Certificate of Capacity, included the following restrictions:
“avoid repetitive activities,
avoid heavy lifting, no more than 10 kg,
5-10 min break every hour for stretching exercise and rest.
can work 4 hours per day on Monday, Wednesday and Friday.
Can stand/walk with modifications
Can bend with modifications
Cannot squat.
Can kneel with modifications
…
Can lift with modifications.”[29]
[29] Certificate of Capacity dated 19 April 2024, DCB 10
47Mr Kelly’s prognosis regarding his lumbar spine is guarded, based on the opinion of the majority of the doctors, including Mr Kossmann. These restrictions, and his condition, are permanent.
Capacity for employment.
48I accept Ms Ryan’s submission that Mr Kelly suffers from daily pain which results in limited activities and restriction. I accept Mr Kelly’s evidence that his days are presently spent dropping his daughters at school and picking them up and, in between, doing what he can. He also has to rest during the day, using heat packs, lying down.
49Mr Kelly’s evidence was to the effect that he has some capacity to work, with pain, but not full‑time employment. He was understandably nervous about the prospect of returning to work after many years out of the workforce.
50All of the treating doctors, and those who examined him for the purpose of this proceeding, save Dr David Barton, consultant occupational physician, accept that he cannot return to his pre‑injury employment. The medical evidence ranges from total and permanent incapacity for all forms of employment to a retained capacity for between nine and eighteen hours per week, between two and six hours a day, to be performed on three non‑consecutive days, with a possibility of increasing those hours.
51The evidence is as follows:
(a) Mr Thomas Kossmann, orthopaedic surgeon, dated 18 December 2023:
“In my opinion, Mr Kelly has no work capacity to return to work as a plumber. He underwent multiple vocational assessments and different employment options were identified. I support that Mr Kelly returns to work in one of the recommended employment options identified in the above documented three vocational assessments, since I believe this will have a positive impact on his physical condition as well as his psychological condition. … .”[30]
[30] PCB 116
(b) Dr Sullivan:
“… [Mr Kelly] cannot return to his preinjury employment as a plumber now or into the foreseeable future due to the nature of his chronic pain condition, the propensity for this pain to be aggravated with rather modest or trivial increases in activity or loading and his ongoing need for strong analgesic medication which is unlikely to change in the foreseeable future.”[31]
(c) I have set out the views of Dr Hou above, which are to the effect that Mr Kelly cannot return to work in his pre‑injury duties and hours, but has a limited retained capacity. In her view:
“… He should start with [a] gradual return to work with initially starting at 3 days per week and 4-6 hours per day.
I believe he can try the jobs listed in the Occupational Rehabilitation reports as these jobs allow him to have restrictions mentioned above.” [32]
[31] PCB 97
[32] DCB 59
The suitable employment options considered by Dr Hou were: pathology courier, sales assistant (hardware), plumbing supervisor, a test and tag technician and a mobile speed camera operator.
52Notably, both Dr Hou and Mr Kossmann’s opinions are qualified to a ‘trial’ of work options.
53Dr Barton considered various roles and considered the plaintiff had a capacity for full‑time hours in his report of 28 September 2023.[33] This opinion was based upon his finding that the plaintiff’s injury has resolved.
[33] Report of Dr David Barton dated 28 September 2023, DCB 47
54I reject Dr Barton’s opinion, as the application was conducted on the basis of an ongoing impairment to the lumbar spine.
What income is the Plaintiff capable of earning in suitable employment?
55The defendant relied upon a 130‑week vocational assessment report dated 22 August 2023 prepared by Konekt.[34]
[34] DCB 124
56The proposed job roles included safety inspector, plumbing inspector, plumbing supervisor, road traffic controller, mobile speed camera operator, sales assistant (general hardware), sales representative, pathology courier and test and tag technician.
57The roles are set out by way of generic position descriptions, without the author ascertaining from any particular employer the nature of the requirements of the roles.
58Dr Sullivan was provided the 130‑week vocational assessment report. He considered the roles and expressed the opinion in his report of 28 November 2023 that:
“… [A]ll of these roles would involve tasks or activities that would exceed your client’s reasonable functional limitations and as such, your client cannot be expected to reasonably engage in employment of such nature in a stable, settled and reliable fashion, now or into the foreseeable future. As such, he has no prospects of engaging in such work roles now nor into the future.”[35]
[35] PCB 98
59A later report from Nabenet, dated 11 October 2023,[36] was based upon discussions with employers and provides a more realistic description of the physical demands of the roles Nabenet identified that, “Mr Kelly has the skills to consider”. Those roles were pathology courier, hire/rental officer/customer service representative, retail assistant, medical product assembler and home care support worker.
[36] DCB 155
60Dr Kilner Braiser considered the jobs suggested of safety inspector, plumbing supervisor and mobile speed camera operator.
61Based on the report of Dr Sullivan, pain physician, in Dr Braiser’s view, Mr Kelly did not have a capacity for these roles.[37] I place limited weight on this opinion, as he bases it upon the opinion of others.
[37] PCB 98
62Dr Braiser also reviewed the Nabenet vocational assessment report dated 11 October 2023. In his opinion, Mr Kelly does not have a realistic work capacity for these roles on a consistent and reliable basis.[38]
[38] PCB 133
63The duties and physical demands of a number of these roles were put to Mr Kelly, fairly, in cross‑examination and clarified in re‑examination.
64Mr Kelly freely considered that he could do some or, in some instances, many of the tasks but considered that he would not be able to complete any of the roles on a full‑time basis and would need breaks and time off. He would not be able to complete heavier or repetitive duties or duties exceeding his medical restrictions at all.
65Mr Kelly appeared to wish to return to work and, consistent with this, has applied for a number of jobs in the last twelve months or so. He has engaged with Konekt, an occupational rehabilitation provider, for this purpose.
Findings
66I accept Mr Kelly’s evidence that he is unlikely to be able to work, even in the more sedentary roles, on a full‑time basis. This is based on his evidence as to his current physical limitations at home, and his unsuccessful return to work attempt in 2020, which stalled at four hours a day on alternate days in a very light role.
67He was cross‑examined about the roles of sales assistant at Bunnings and as a plumbing supervisor. Again, he agreed he could probably perform some of the duties but not all of them, and none on a full‑time basis. I accept that evidence.
68The role of a retail sales assistant at Bunnings hardware requires frequent lifting of items between 3 and 10 kilograms, stacking and displaying stock on shelves, standing and walking most of the day, and frequent bending and squatting. When assessed against the medical restrictions referred to above, I find that Mr Kelly could not realistically perform these duties.
69Likewise, the role of pathology courier also involves handling 26‑litre eskies, which I accept is likely to be beyond Mr Kelly’s capacity.
70The roles of plumbing supervisor and tag and test technician were roles that were within Mr Kelly’s knowledge. I accept his evidence that they were unsuitable, as the duties are too heavy in nature when assessed against the restrictions.
71I accept his evidence that the role as a plumbing supervisor involves working onsite, standing for long periods, use of ladders, accessing manholes and checking all aspects of plumbing work. These tasks are beyond Mr Kelly’s capacity.
72Likewise, the tag and test role involves the regular use of power tools and other heavier duties beyond his capacity, even though there were other aspects which involve lighter work which he could manage.
73Work as a courier, involving sitting for long periods and hopping in and out of a vehicle for eight hours a day and lifting heavier items would preclude him from full‑time employment in that role, at the least; and the standing requirements of other roles, including the traffic supervisor, are also unsuitable.
74I find that, on balance, Mr Kelly has no retained capacity to work as a plumbing supervisor or a tag and test technician. The capacity is theoretical and unrealistic when assessed against the restrictions identified above. I accept the opinion of Dr Sullivan in relation to those two particular roles.
75The extent of his current daily routine involving light shopping and household tasks, which result in the need for him to rest often with heat packs and lying down, is a factor against Mr Kelly ever being able to return to full‑time employment, or near full‑time employment, in other roles. I find that the more sedentary roles for which Mr Kelly is now suited could only ever be undertaken by Mr Kelly on less than a full‑time basis.
76In any event, even full‑time, the hourly rates annualised of many of the roles – not including the plumbing supervisor or tag and test technician – are around or less than $60,000 per annum, so would be less than 60 per cent of $104,000.
77Even accepting Dr Hou and Mr Kossmann’s opinion as to a retained capacity for light work, the plaintiff still satisfies the requirement of establishing a greater than 40 per cent loss of earning capacity.
78None of the doctors, save Dr Barton, expresses the view that the plaintiff can return to full‑time employment. It is a hope at best and must be assessed against:
(a) the evidence of Dr Sullivan;
(b) Mr Kelly’s evidence of his current daily routine;
(c) the employment restrictions set out above, which are significant; and
(d) significantly, Mr Kelly’s lived experience that he was only ever able to return to four hours a day, three days a week, on light duties over a period of six or seven months with the employer in 2020, starting out at one day a week.
79It is a matter of the judgment of the Court as to how many hours a plaintiff is fit to work in the context of an assessment required to apply a gateway provision. I must make a determination as to incapacity after a consideration of the whole of the evidence.[39]
[39] Yirga-Denbu v Victorian WorkCover Authority (2018) 57 VR 545 at paragraph [70]
80A retained capacity to work up to three days per week for two, three, four, or even six hours per day, represents a notional loss of greater than 40 per cent of Mr Kelly’s pre‑injury capacity. Slowly increasing those hours, in accordance with the views of, for example, Mr Kossmann, remains optimistic and unquantified.
81There is no evidence that Mr Kelly has worked beyond three days and not on consecutive days and no‑one, save Dr Barton, is prepared to say he has a greater capacity than six hours a day, three days a week at the moment.
Conclusion
82I find that, at best, Mr Kelly has a retained capacity to work up to 20 hours a week in a suitable sedentary role. Applying the real‑world approach to my assessment of the plaintiff’s employment capacity, I find he satisfies the statutory test.
83On the evidence as a whole, I am satisfied the plaintiff suffers from chronic pain in his lumbar spine as a consequence of traumatic injury to his lumbar region, including fracturing of the transverse processes on the left side from L1 to L4 and rib fractures from T8 to T12 on the left side. His condition is permanent and has resulted in total incapacity for many forms of employment, save light roles on a part‑time basis, paying significantly less than his pre‑injury role as a plumber.
84I find that the plaintiff has discharged the burden of proof in terms of establishing a greater than 40 per cent loss of earning capacity. I find the loss of earning capacity consequence to Mr Kelly is a permanent restriction of his employment capacity.
85On the evidence as a whole, I am satisfied as to the following matters:
(a) the plaintiff suffered injury to his low back in the course of employment on 16 April 2019;
(b) the loss of earning consequences, including the loss of his vocation as a plumber, are at least “very considerable”; and
(c) the permanent loss of earning capacity will be productive of financial loss of 40 per cent or more.[40]
[40] Sections 325(2)(e) and (f) of the Act
86I grant leave to the plaintiff to commence proceedings for damages for pain and suffering and loss of earnings.
87I will hear the parties on the question of the form of final orders and costs.
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