Berthelot v Fleetweld Pty Ltd

[2015] VCC 1453

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

 Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-14-03233

AARON BERTHELOT	Plaintiff
v
FLEETWELD PTY LTD	Defendant

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JUDGE:	HIS HONOUR JUDGE O'NEILL
WHERE HELD:	Melbourne
DATE OF HEARING:	14 and 15 October 2015
DATE OF JUDGMENT:	20 October 2015
CASE MAY BE CITED AS:	Berthelot v Fleetweld Pty Ltd
MEDIUM NEUTRAL CITATION:	[2015] VCC 1453

REASONS FOR JUDGMENT
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Subject:  ACCIDENT COMPENSATION

Catchwords:             Serious injury application – injury to spine – nature and extent of injury – credit issues – permanency – whether consequences “very considerable” – whether 40 per cent loss of earning capacity – employee under 26 at the time of injury

Legislation Cited:     Accident Compensation Act 1985, s134AB(16)(b)

Cases Cited:Meadows v Lichmore Pty Ltd [2013] VSCA 201; Jarvis v Woolworths Limited [2012] VCC 1329; Capper v Munday Sales Pty Ltd & Anor [2013] VCC 1015; Mitchell v Linde Material Handling Pty Ltd & Anor [2011] VCC 216; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170

Judgment                  Leave granted to the plaintiff to bring common law proceedings.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P O’Dwyer SC with Mr C O’Sullivan	Slater & Gordon Ltd
For the Defendant	Mr R Middleton QC with Mr D Oldfield	Thomson Geer

HIS HONOUR:

Preliminary

1       The plaintiff, Mr Berthelot, alleges he suffered injury in the course of his employment with the defendant on 3 December 2009 while lifting heavy sheets of metal.  At the time, he was twenty-two years of age.

2       He has moved between Melbourne and Queensland over the years since injury and has received a range of conservative treatment, including medication and some limited rehabilitation.  He had earlier commenced a plumbing apprenticeship and says it was his intention to complete that apprenticeship and work as a plumber.

3       He has not worked since the injury, and claims a range of recreational, social and domestic activities are lost or curtailed.

4 This is an application for leave to bring proceedings pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered in the course of employment on 3 December 2009. The body function said to be lost or impaired is the lumbar spine.

5 The application is thus brought under ss(a) of the definition of “serious injury” contained in s134AB(37) of the Act, and leave is sought in respect of pain and suffering and loss of earning capacity.

6 The plaintiff was the only witness called to give evidence and be cross-examined. In addition, affidavits of himself and his girlfriend, Michelle Bingham, various affidavits of representatives of the defendant and its insurer, medical and radiological reports, video surveillance and other material were tendered in evidence. I shall not refer to all of that material in the course of this judgment, but rather to those parts of the evidence and reports which appear to me to be most relevant and which I have relied upon in coming to the conclusions referred to later in this judgment. The statutory scheme set forth in the Act which prescribes and regulates applications of this nature, and the principal authorities of the Court of Appeal are well known, and it is unnecessary for me to revisit the various relevant sections and those authorities.

Relevant background

7       The plaintiff is now only twenty-eight years of age, and was twenty-two at the time of injury.  He completed Year 11 and began a plumbing apprenticeship in approximately 2005 with a Melbourne company, Melbourne Fascia and Roofing.  That apprenticeship lasted only a short time, and in July 2005 he was fired.  In evidence, he said he was unable to continue with the apprenticeship as it was hard for him to travel to work.  At the time, his parents were in Europe.

8       He continued his apprenticeship with another company, Superior Heating and Cooling, from December 2005.  That employment ended in September 2006, because he said his employer refused to let him attend TAFE classes as they clashed with his work.

9       Mr Berthelot’s parents moved to Magnetic Island in Queensland and he travelled there in 2007.  He started work with MVO Air Conditioning in Townsville in early 2007.  He wanted to continue his plumbing apprenticeship, but the company could not accommodate that and he was instead offered an apprenticeship in refrigeration, which he did not want.  He left work there in 2008 and returned to Melbourne.  He was unable to find work in Melbourne, and returned to Queensland.  In August 2008, he commenced work with a company in Queensland, Multitech, which lasted only a few months.  He said he needed time off for his girlfriend’s medical treatment and the company refused.  He looked for further employment as a plumber’s apprentice in Queensland but was unable to find any.

10      He returned to Melbourne towards the end of 2008 and again looked to continue his plumbing apprenticeship.

11      In May 2009, he commenced work with the defendant, Fleetweld Pty Ltd.  This work was not plumbing work, but rather truck body building.  He did this because he needed a job, although he said he had intended to return to his plumbing apprenticeship.  The work involved welding using a MIG welder and generally working with truck body parts.

12      Prior to injury in December 2009, Mr Berthelot said he enjoyed a range of recreational activities including kayak paddling, fishing, gold prospecting, hiking and martial arts.  In cross-examination, he was unable to recall when he had last participated in these activities before injury.

13      At the time of injury, he was physically well and, in particular, suffered no significant pain nor restriction in his lumbar spine.

The injury and its consequences

14      

On 3 December 2009 Mr Berthelot was lifting a large sheet of metal when he said he suffered pain in his lower back.  He reported the injury and went to see his general practitioner, Dr De Silva.  Medication was prescribed and he was sent for a CT scan.  He returned to see another doctor at the same clinic on

15 December 2009 and was prescribed anti-inflammatory medication.  He was certified as fit to return to normal duties, although it was said he was “… not very happy” about that.[1]  A CT scan of 18 December 2009 was said to show a mild disc bulge at the L5/S1 disc.

[1]Plaintiff’s Court Book (“PCB”) 27

15      According to the plaintiff’s affidavit, within a month of the injury he began to feel leg pain down his left leg, through the left buttock.

16      In April 2010, his general practitioner referred him to Mr Chris Xenos, neurosurgeon.  He complained of diffuse lower back pain.  At the time he had not returned to work.  Neurological examination by Mr Xenos was normal.  An MRI scan of the lumbar spine was ordered,[2] which concluded:

[2]PCB 16

“There is a mild to moderate posterocentral disc protrusion indenting and deforming the spinal theca and causing a very mild canal stenosis.  It also causes a left subarticular lateral recess narrowing.  This is in contact of the descending left S1 nerve root in this region.”

The disc protrusion was at the L5/S1 disc.  Mr Xenos described this MRI scan as demonstrating degeneration at the L5/S1 disc space with some minor bulging.  It was not sufficiently severe to consider surgical intervention. 

Mr Berthelot had a short stint of physiotherapy.

17      In 2010 he completed a truck driving course, thinking that he might obtain employment in that area.  He was still under the care of his general practitioner, and was taking pain relieving and anti-inflammatory medication. 

18      In December 2010 he moved again to Magnetic Island in Queensland to live with his parents. He was treated there by Dr Angela Moore.  She referred him to a neurosurgeon, Dr Eric Guazzo, whom he saw in August 2011.  Dr Guazzo said surgical treatment was not appropriate as there was no significant disc protrusion causing nerve root compression.  Dr Moore suggested he undertake a pain management program, a six week program to commence in September 2011.  Mr Berthelot commenced the program, but claims that funding was cut after one session.  According to the general practitioner’s report, the program was delayed “… for logistical reasons”.[3]

[3]PCB 39D(ii)

19      In October 2011, the plaintiff was examined by Dr Tony Blue, orthopaedic surgeon who inspected the MRI scan of May 2010, which he said revealed “… only minor degenerative disease at L5/S1 …”.[4]  Dr Blue said that the pain management program was not appropriate as there was no physical reason to undertake the program based upon his presentation.[5]  He said from a physical perspective, “… he (Mr Berthelot) is normal”.  Dr Blue considered him fit to return to his pre-injury employment without restriction and that he had no work incapacity. 

[4]Defendant’s Court Book (“DCB”) 75

[5]DCB 75 – this may explain why the pain management program was ceased.

20      Dr Moore, the general practitioner, noted that Dr Blue’s findings were at odds with those of Mr Xenos, a physiotherapist, and Dr Guazzo, the neurosurgeon.[6]  She described Mr Berthelot as keen to re-engage in a rehabilitation program.

[6]PCB 39D(ii)

21      In August 2012 Mr Berthelot saw Dr Roger Watson, a rehabilitation specialist in Queensland.  He said there was no definite sciatic radiation of pain and that his back pain was variable, although increased with excessive standing or sitting.  He said the pathology shown on the MRI scan was consistent with the injury of December 2009.  He prescribed a trial of the medication Lyrica, and Endep, commencing at 10 mgs per day.

22      In late 2012 Mr Berthelot returned to Melbourne and started a course in occupational health and safety online.  He thought there might be the prospect of work in that area.  However, he was unable to complete the course as he had difficulty concentrating on the course material, which he said was due to medication and lack of sleep.

23      In December 2012 he applied to VicRoads for a motor vehicle licence, supported by a report from his then general practitioner, Dr Loosemore.  That doctor commented:  “L5/S1 disc bulge.  Ongoing lower back pain.  Movement good for driving.  No side effects to medication.”[7]  According to his affidavit sworn August 2015, he said he did not feel safe driving to and from work because of the medications he was on.  With the exception of Endep, which has increased from 10 to 25 mgs, it would appear his medications are much the same.  He was unable to explain this when cross-examined.[8]

[7]DCB 107(a)

[8]Transcript (“T”) 4-36

24      He returned to see Mr Xenos in August 2013.  A further MRI scan was undertaken, which Mr Xenos described as demonstrating a degenerate L5/S1 disc bulge with minimal nerve compression. He did not recommend surgery.  In January 2014 he arranged a CT-guided L5/S1 epidural injection, which gave no lasting relief.  At the time, Mr Xenos commented that he had “… some features of chronic pain syndrome that are well and truly established”.[9]  He described, on clinical examination, that Mr Berthelot was suffering mechanical and muscular back pain, together with left-sided pain into the thigh and calf and, at times, with paraesthesia to the foot.  Again, a multidisciplinary pain management and rehabilitation program was suggested. 

[9]PCB 35

25      

Mr Berthelot was referred to a psychologist, with whom he had a number of sessions, and complained of depression and anxiety, together with low

self-esteem.  A further MRI scan was undertaken in July 2014 which, according to Mr Xenos, was “pretty similar” to the previous image.  Mr Xenos said: 

“The patient’s diagnosis can be summarised as L5/S1 disc prolapse and lumbar spondylosis.  I think his symptoms with regards to back pain and leg pain do correspond with the radiology and the injury sustained, as mentioned above.  Unfortunately the radiology is at the mild end of the spectrum and we’ve tried to exhaust conservative measures.  Unfortunately there have been major gaps in the patient’s follow up, be it both representing from a clinical point of view, to chase up scan results, to chase the effectiveness of epidural injections, and he also had a period of time where he moved to Queensland ….  He’d not worked for a prolonged period of time.  Indeed I am very pessimistic as to whether he’d be able to get back to his pre-injury employment.

I think his long-term prognosis is guarded.  I think he’ll continue to have chronic back pain at minimum, from which there is no cure.  In due course, I think a formal multi disciplinary pain management and rehabilitation program will be required.  Specifically with regards to sciatica, if there is still a persistence [sic] but small disc prolapse causing some nerve compression, we could consider surgery and a discectomy to alleviate his sciatica ... .”[10]

[10]PCB 39

26      The plaintiff has not worked since 2009.  According to his evidence and affidavits, it was his intention to complete his plumbing apprenticeship and work as a plumber.  I have significant reservations about whether he would have completed a plumbing apprenticeship given his dismissal by two employers in the early days of that apprenticeship, and the fact that he left another.

27      In a Vocational Assessment Report conducted by Nabenet,[11] various areas of employment said to be suitable for Mr Berthelot were identified.  These included:

[11]DCB 112

·internal sales person

·information clerk

·general clerk

·receive and despatch clerk

·accounts manager

·sales assistant.

Mr Berthelot said that he would be unable to undertake any of these areas of employment, both because he had no experience in sales or administration, and because of the constant pain in his back and referred pain down his left leg.

28      At the present time, he takes Tramadol, one tablet per day; Endep, two tablets at night to assist with sleep; Gabapentin, one tablet per day; Imodium, one tablet per day; and Zantac for stomach problems.  He has recently resumed physiotherapy, and the physiotherapist has advised him he will arrange a pain management program, although this has not yet come to pass. 

29      He sees his general practitioner each fortnight or so for the prescription of medication.  He undertakes an exercise program at home with some yoga.

30      He claims to suffer ongoing pain in his lower back which varies between five out of ten to ten out of ten.  He also has pain running down his left leg, through the buttock and to the calf.  He says the medication causes him to feel groggy and vague.  He says he has a lot of trouble sleeping and wakes regularly.  He is tired during the day as a result.  He has been unable to resume any of the activities he previously enjoyed.

31      It had been suggested he undertake a computer course, but his skills in that area, and his understanding of computer systems is modest.  He says he worries about his future and is uncertain what work he could do.  The pain has got no better over the years, and is probably worse.  He lives with his girlfriend, who works fulltime and supports him.  He feels bad that he is unable to work and contribute to the household.

32      I was provided with a summary Mr Berthelot’s taxation returns which showed his gross income over the years as follows:

Year	Amount
To June 2006	$10,792.00
To June 2007	$ 3,565.00
To June 2008	$30,498.00
To June 2009	$ 5,133.00
To June 2010	$32,106.00 (includes payment of weekly compensation)

Consultant medical opinions

33      Aside from the treating practitioners, to whom I have referred, the plaintiff has seen a number of consultant practitioners.  He saw Dr Helen Sutcliffe, occupational physician, in 2014 and again in 2015.  I did not find Dr Sutcliffe’s reports of any significant assistance.  Although an occupational physician, her reports do not show any critical examination of the plaintiff’s complaints.  She was the only practitioner to find neuropathic or radicular pain of the left leg, and she diagnosed the plaintiff as having no capacity for any employment whatsoever. 

34      Mr Berthelot was examined by Mr John O’Brien, orthopaedic surgeon, in May 2015.  His review of the MRI scan of July 2014 showed there was moderate disc space narrowing and some disc bulge, but no specific herniation, nor evidence of nerve root impingement.  He said:

“Current physical signs are entirely subjective, with definite restriction of lumbar movement, in particular extension and lateral flexion.  There are currently no signs to suggest any nerve root compromise or radiculopathy.  The current most recent investigation does certainly show degenerative change at the lumbosacral disc, without evidence of any nerve root compromise which certainly would correlate with the clinical findings.

This patient now presents with chronic non-specific back and left leg pain.  Clinically there are no signs which allow more specific diagnosis of pain generation.  Indeed the signs on the MRI are somewhat non-specific also, as they demonstrate some degree of degenerative change at the lumbosacral articulations.

…

The clinical condition is clearly stable.  The patient now basically reports no alteration in the nature, distribution or indeed severity of pain over the past five years.  Unfortunately, conservative treatment has not improved the clinical situation and thus ongoing treatment is now directed towards pain management with analgesic medication.  I am sure this conservative treatment will continue to be necessary.  I think it is unfortunate the patient has not been able to undergo a multi-discipline pain management program.  I do not see currently any indication for further investigation and I would consider there is no clinical indication for surgical treatment.

The prognosis for this patient’s chronic pain is poor.

The patient continues to report moderate disability associated with chronic back and left leg pain.  The patient clearly would not be physically capable of a return to his pre-injury occupation which obviously did involve moderate to heavy physical duties.  Indeed I would suggest he could not now undertake any form of manual type employment.  Given the current presentation I would suggest the patient would not be physically capable of undertaking the re-training which I would suggest would be necessary if this patient is to make any attempt at finding suitable employment.  Thus, I would I [sic] fact conclude that the patient now presents as totally incapacitated, and it would appear from the history that this situation will be ongoing.  Indeed the patient currently is limited in his general, social, domestic and recreational activities, and this will certainly be an ongoing problem.”[12]

[12]PCB 53-54

35      On behalf of the defendant, Mr Berthelot was examined by Dr Michael Bloom, occupational physician, in November 2010.  As part of the history, Dr Bloom noted Mr Berthelot did not like the job he held with the defendant, and hated going to work.  As to functional capacity, he said:

“He is independent in his personal care, drives his car, goes shopping, does housework including the dishes, vacuuming and cleaning the bathroom, as well as the cooking.  He said he has a sitting tolerance of 20 minutes, a standing tolerance of no more than 1 minute but he has an unlimited walking tolerance.”[13]

Dr Bloom suggested the physiotherapy he was then receiving be ceased and that treatment with medication was appropriate.  He thought Mr Berthelot had suffered a soft tissue lower back strain but that his failure to rehabilitate had very little to do with the physical injury but, rather, was related to “… psychosocial factors and the massive psychosocial barriers to resumption of work”.[14]  He thought Mr Berthelot could return to work on alternative lighter duties.  He also thought there was a mild Chronic Pain Syndrome evident.

[13]DCB 58

[14]DCB 60

36      Mr Berthelot was examined by Dr Michael Baynes, occupational physician, in March 2013.  He thought he was suffering a Chronic Pain Syndrome associated with lower back pain and some referred pain to the left leg.  He said the cause of the pain was likely “… discogenic in nature with evidence on radiology on L5/S1 degeneration”.[15]  He also thought there was evidence of abnormal illness behaviour.  He considered that the presentation was consistent with the original injury of 2009. He said Mr Berthelot was fit for a range of employment, but with no lifting greater than 10 kilograms and no repetitive lifting below knee height or above shoulder height. He suggested an exercise regime.

[15]DCB 87

37      Finally, Mr Berthelot was examined by Dr Dominic Yong, occupational physician, in August this year.  The purpose of the report largely was to determine whether Mr Berthelot would be able to undertake a range of employment, although he did note that he had suffered a discal injury with radicular features.[16]  He also noted some deconditioning and mild lumbar dysfunction.  He suggested daily walking and an exercise program.

[16]DCB 97

38      Dr Yong thought Mr Berthelot had a capacity for employment providing he:

·avoided repeated bending and twisting

·avoided repeated pushing and pulling

·varied his posture regularly between sitting, standing and walking

·avoided lifting more than 5 kilograms on a repeated basis.

He said he would be unable to return to his previous employment.  In terms of the various areas of work suggested by the defendant’s vocational assessors, with the exception of work as a sales person, he would be able to do other clerical and administrative duties within the restrictions he outlined.  In a further report of 31 August 2015, having viewed the video surveillance to which I will shortly refer, Dr Yong did not change his view as to Mr Berthelot’s work capacity, although the work restrictions should be amended to only the following:

·avoid repeated pushing or pulling

·avoid lifting more than 5 kilograms on a repeated basis.

The credibility of the plaintiff

39      Video surveillance film of Mr Berthelot, taken 14 August 2014, was shown and tendered into evidence.  At 11.34am, he was seen with a friend at a carwash assisting in washing down a car and trailer.  Later that morning, he and a friend were shown at a Bunning’s store purchasing various small items. 

40      Of significance, over a period of a little over an hour he was shown in the back yard of his home at Pakenham spray-painting the trailer which had earlier been cleaned at the carwash.  Over that period, he was shown regularly to squat and then stand, to bend forward and to spray-paint the trailer, including areas low to the ground, using spray cans.  The activities did not show any particularly heavy lifting nor other manual work, but it appeared clear Mr Berthelot was able to move freely and without restriction, particularly when squatting or bending.  In evidence he explained that he had placed cardboard packing on the ground to enable him to sit while he was painting the lower part of the trailer.

41      Having observed the surveillance film, the activities he undertook over this one hour period were inconsistent with the evidence he gave before the Court and in his affidavits, and the histories provided to the doctors, in particular for example, the history to Dr Sutcliffe in 2014 that he experienced constant pain with radiation of pain down into the legs, such that it was difficult for him to dress and undress, and that he could not fold clothes nor empty the dishwasher.[17]

[17]PCB 45

42      Mr Middleton, for the defendant, pointed to the following further credit issues:

(a)The complaints of pain both in the back and down the left leg were inconsistent with the radiology, and the opinions of most of the doctors.  Mr Berthelot was exaggerating the symptoms;

(b)To various doctors, he exaggerated the extent of the plumbing apprenticeship he had undertaken, telling some doctors that it was almost completed, or that he had done three or four years.  The reality was that he had worked only fourteen months or so;

(c)His claim that the medication he was on meant he was very restricted in driving, when his general practitioner, in 2012, at a time he was on about the same amount of medication as presently, certified him able to drive and unaffected by medication;

(d)He made reference in his evidence that he went big game fishing prior to the injury,[18] which was not correct and, further, he could not recall the last occasion he undertook any of the recreational activities referred to in his affidavit before injury.

[18]T29-30

43      

Mr Berthelot was not a particularly satisfactory witness.  He was a vague historian and was often completely incapable of giving any estimate of times, including when he had last had treatment, when he had seen doctors and the like.  The matters referred to by Mr Middleton above, with the exception of the video surveillance, however, to some extent can be explained by the fact that

Mr Berthelot has a limited education and, by his own admission, difficulties with reading and writing.  He is a man of limited intelligence and comprehension and, I have little doubt, found the Court environment difficult.  It was no easy matter for him to understand and responsively answer questions in cross-examination. 

44      However, in my view, his credibility is affected by what is disclosed in the surveillance film when he was painting the trailer.  Even accepting he spent some of the time sitting on the ground, the activities, in particular the bending and squatting, were carried out in an unrestricted manner and quite different to the histories provided to the doctors around that time. 

45      This does not cause me to dismiss his complaints, or to find him a comprehensively untruthful witness, but I do have some reservations about the nature and extent of the pain of which he complains.

Conclusions

46      

The first matter to determine is the nature of the injury suffered by Mr Berthelot in the course of his employment on 9 December 2009.  I accept the opinion of most medical practitioners that he suffered an injury at the L5-S1 disc.  That is variously described as a discal injury; alternatively, an injury giving rise to “mechanical and muscular back pain”, as said by the treating neurosurgeon,

Mr Xenos.  It is unclear whether the disc desiccation/bulging at the L5-S1 level, possibly impacting the exiting S1 nerve root, was caused by the injury, but it would appear more likely it was a pre-existing condition made symptomatic when lifting in December 2009.

47      

I further accept the view of some practitioners that, in addition to physical injury, Mr Berthelot experiences a Chronic Pain Syndrome, which is a psychological, and not physical, response to injury.  I accept the opinions of Mr Xenos and

Mr O’Brien in that regard.  However, I am satisfied that, even accepting there is some contribution by psychological factors, principally his pain and disability arises from physical injury.  I am satisfied that the consequences of injury are largely physical.[19]

[19]Meadows v Lichmore Pty Ltd [2013] VSCA 201

48      In cross-examination, Mr Berthelot said that he had suffered some minor episodes of lower back pain in the past but I am satisfied that, in the period before 2009, he was pain-free and able to undertake his work in an unrestricted manner.

49      

I further accept the opinion of many of the practitioners that the radiology shown in the various MRI and CT scans does not explain the extent of Mr Berthelot’s pain and restriction.  However, it is well known in the personal injury jurisdiction that some persons have significant back pain and restriction and yet with only modest signs on radiology.  Conversely, a person may have a severely degenerate spine, but with little in the way of symptoms.  The fact that the radiology is modest, as described by Mr Xenos, does not, of itself, mean

Mr Berthelot does not suffer physical, mechanical lower back pain.

50      It is disappointing that Mr Berthelot has not undertaken a comprehensive pain and rehabilitation program, as suggested by many doctors.  One was attempted in October 2011 but only lasted a short time.  Aside from some rather vague prospect of a further program being organised by his physiotherapist at some time in the future, Mr Berthelot has not had the advantage of an extensive formal rehabilitation program.

51 An affidavit of Nyssa Dubar sworn 6 October 2015, documents the attempts made by the WorkCover insurer to engage Mr Berthelot, arrange meetings, medical appointments, job search sessions and the like, over 2010 and 2011. According to that affidavit, there was a comprehensive failure by him to properly engage, in accordance with the rehabilitation requirements of the Act.

52      Further, according to an affidavit of Eloise O’Brien sworn 6 October 2015, efforts were made to contact Mr Berthelot over the period 2011 through to 2014.  While no doubt complicated by the fact that Mr Berthelot moved to Queensland and then returned to Melbourne, nonetheless, that affidavit indicates a lack of motivation and real intent to properly engage in rehabilitation services.  That affidavit noted that, as a result of the reports of a psychiatrist, Dr Kornan, and Dr Blue, Mr Berthelot’s entitlement to weekly payments of compensation and medical and like expenses was terminated in October 2011.  This was subsequently overturned by a Medical Panel decision in May 2012. 

53      Following examinations by Dr Kornan, psychiatrist, and Dr Baynes, an occupational physician, Mr Berthelot’s entitlement to weekly payments was terminated again in May 2013.  Up to this point, the WorkCover insurer had refused to fund Mr Berthelot’s request to undertake a workplace health and safety course, as it was considered “… that it would ‘up-skill’ the worker rather than re-train him”.[20]  I am not certain what this means. Notwithstanding this termination, the insurer retained Ayres Management Services to provide rehabilitation services.  Mr Berthelot failed to attend a number of scheduled appointments.  As a result, Ayres Management Services was instructed to close its file.

[20]DCB 387

54      Although Mr Berthelot explained that with the move from Melbourne to Queensland and back, the fact that he did not have a voice message service on his mobile phone and that he preferred to be contacted by email, the affidavits of the Workcover insurer’s employees[21] show a reluctance on his part to engage in appropriate rehabilitation services. To some extent, this is explained by my assessment that Mr Berthelot has a limited capacity to understand the nature and extent of the services which were being provided, and his obligations to engage with the insurer and its officers under the Act. Nonetheless, his efforts, in particular given the provisions of s134AB(38)(g), have been comprehensively unimpressive. It should be said that given the reference by most of the medical practitioners who have examined Mr Berthelot that he needs a pain management and rehabilitation program, it is a pity the insurer did not make this a priority over the course of its involvement.

[21]Discussed at paragraphs 51 and 52

55      In considering Mr Berthelot’s claim for pecuniary loss, the onus is upon him to satisfy the Court in accordance with s134AB(38)(e), that he has suffered a loss of earning capacity of 40 per cent or more.  Section 134AB(38)(e)(i) makes it clear that the provisions of s134AB(38)(f) do not apply in circumstances where the worker was under twenty-six years of age as at the date of injury.  Thus the comparison to be made between the gross earnings of the worker, which he was capable of earning in the period of three years before and after injury as most fairly reflects his earning capacity, and as prescribed by that subsection, has no application. 

56      Mr O’Dwyer submitted, and I accept, that in those circumstances, the assessment of Mr Berthelot’s loss of earning capacity is to be undertaken in accordance with general common law principles and without reference to the matters otherwise required by s134AB(38)(f). Mr Middleton did not disagree with this submission.

57      

The first matter to determine is Mr Berthelot’s pre-injury earnings.  He commenced a plumbing apprenticeship but completed only approximately

fourteen months.  He was fired from two jobs, and left another.  Given that history, I am not satisfied there was any real likelihood he would have continued and completed the plumbing apprenticeship had he not been injured.  In determining his pre-injury income, regard should be had to his earnings over the years before injury and, further, to the fact that he was only twenty-two or so at the time and had not, because of his youth, had the opportunity to obtain secure long-term fulltime employment.  Even notwithstanding his limited education and somewhat restricted intellectual capacity he would, I think, have obtained non-skilled manual employment by the present time.  According to the WorkCover Claim Form,[22] at the time of injury Mr Berthelot was earning $720 gross per week.  According to the Australian Bureau of Statistics, average weekly earnings measured as “all employees average weekly total earnings” as at May 2015 is $1,136 gross per week. 

[22]DCB 15

58      Mr Middleton submitted that it was appropriate to use Mr Berthelot’s pre-injury average weekly income of $637 per week.  However, that figure fails to take into account, firstly the changes in wage entitlement from 2009 to the present and, secondly, the fact that I am satisfied Mr Berthelot would have moved to fulltime secure employment commanding a higher wage than he was able to command in 2009.  According to a report of the plaintiff’s human resources consultant, Diane Forster of Flexi Personnel Pty Ltd,[23] the current hourly rate of a plumber in Victoria is $27.78 per hour ($1,111.20 gross per week).

[23]PCB 60

59      

Without any particular science, I am of the view it is appropriate to assess

Mr Berthelot’s “without injury” capacity as something in the order of $900 to $1,000 per week.

60      

As earlier stated, the assessment of work capacity for a worker under

twenty-six years differs from the formula set forth in s134AB(38)(f).  The rationale for that provision was explained in the Minister’s second reading speech.[24] 

“The three-year pre and post-injury period does not apply in the case of a worker referred to in section 5A(7) of the act or a worker under the age of 26 years at the date of injury.  The government recognises that apprentices and workers undergoing training for the purpose of becoming qualified and in general terms workers under the age of 26 should not be subject to a six-year period of inquiry of earnings or earning capacity.  In the case of such workers, a court may have regard to the probable income from personal exertion which the worker would have earned but for the injury over the worker’s probable earning life.  This means the usual common-law position prevails.”

[24]Victoria, Parliamentary Debates, Legislative Assembly, 23 May 2000, 1169 (Hon M Gould, Minister assisting the Minister for WorkCover)

61      A number of decisions of this Court have considered these common law provisions.[25]  The principles which have emerged are as follows:

[25]See Jarvis v Woolworths Limited [2012] VCC 1329 at paragraph [23], Capper v Munday Sales Pty Ltd & Anor [2013] VCC 1015 at paragraph [148] and Mitchell v Linde Material Handling Pty Ltd & Anor [2011] VCC 216 per Judge Bowman at paragraph [73] ff

·Evidence of past economic loss is some, although not conclusive evidence of reduced earning capacity.

·It is generally desirable to have precise evidence of what the plaintiff would have been likely to earn before the injury and what the plaintiff is likely to earn after it.

·Whether a plaintiff has suffered a significantly disabling injury which affects the range and nature of the work the plaintiff can perform, a court can, without specific evidence as to what other persons with that kind of disability can earn, make a judgment and assessment on a percentage basis or, otherwise, of the value of the lost capacity.

·The compensable loss is not a loss of income but the loss of capacity to earn income in a manner productive of financial loss.  It involves calculating the damage to a capacity to carry on various careers.  It is an exercise in estimation of possibilities, not proof of probabilities.

·The mere fact that the quantum of damages is difficult to assess does not mean that the plaintiff is only entitled to a nominal sum.

·The task of the Court is to perform a discretionary judgement by reference to not wholly determinate criteria within fairly wide parameters.

I take these matters into account in assessing earning capacity lost by reason of the workplace injury.

62      Turning to Mr Berthelot’s current with injury earning capacity, it is appropriate to consider:

·the opinion of those medical practitioners whose opinions I accept as to his earning capacity

·my observations of his activities shown in the surveillance film

·his somewhat limited education and modest intellectual skills, including reading, writing and computer capacities

·the fact that he has now been unemployed for a period of six years

·the fact that he would present to an employer with a lower back injury, and the natural reluctance of employers to include such a person in its workforce

·his unimpressive work history.

63      As earlier stated, I reject the opinions of Dr Sutcliffe and Dr Blue.  Each are at the extreme end of the range of opinions of the various medical practitioners presented in this case.  The opinion of Mr Xenos, the treating neurosurgeon, is significant given his lengthy involvement with Mr Berthelot.  He concluded that Mr Berthelot had no capacity for pre-injury employment.  That is the view of most practitioners.  Further, both he and Mr O’Brien, with whose opinion I was also impressed, are of the view Mr Berthelot’s back pain is permanent.  I accept those opinions.  I am satisfied his condition meets the definition of ‘Permanent’, that is, for the foreseeable future.

64      Given the video surveillance, I am of the view that Mr Berthelot’s work capacity is greater than he would have it.  Further, that work capacity will be enhanced by him undertaking a comprehensive pain management and rehabilitation program, although I have reservations about his capacity for retraining given his limited education and comprehension skills.  Mr O’Brien, concluded that not only could Mr Berthelot not return to his previous occupation, nor any occupation involving moderate to heavy physical duties, but that given his presentation, it would be unlikely he would be able to be retrained to find any form of suitable employment and, thus, would be totally incapacitated.

65      

The defendant’s practitioners, Dr Baynes and more recently Dr Yong, both say Mr Berthelot has the capacity for some form of alternative employment. 

Dr Yong’s opinion is significant given he has seen the surveillance video.  He accepted he had the capacity to undertake a range of employment in sales, clerical work or as an accounts manager.  It may be that in terms of pure capacity, Mr Berthelot is able to perform duties in these areas although, as

Dr Yong says, any employment would have to commence with a trial period on reduced hours. 

66      However, the common law principles mean that not only should a realistic assessment of the prospect of an actual job be taken into account, but also what has been lost to him, namely manual work for which he was suited. That, of itself, is reflective of loss.

67      

Given all the matters to which I have referred, I am of the view

Mr Berthelot’s capacity for employment in the real world is significantly reduced because of his injury. He will face the usual prejudice an injured person faces in attempting to return to the workforce. His limited education and comprehension skills will work against him. In the current economic climate, someone who has been out of work for six years will struggle to convince an employer to take him on. He is really only now and for the foreseeable future, restricted to clerical, sales or administrative work for which he has no training and little ability. Realistically, his capacity for work is significantly reduced. While it is impossible to impose any precise mathematical formula to this assessment, I am satisfied that, as a result of injury, he has suffered a loss of earning capacity of more than 40 per cent. Even accepting he has the capacity to undertake non-manual tasks, and further accepting that his capacity is greater than he would present to the Court, in my view he meets the test prescribed by the Act. Probably his work capacity has been reduced by something more than 50 per cent because of his lower back injury. This takes into account a rehabilitation and pain management program will enhance that capacity.

68      I am thus satisfied Mr Berthelot meets the test in terms of loss of earning capacity.

69      It is now well established that if a worker meets the test in terms of loss of earning capacity, a worker also meets the test for pain and suffering.[26] 

[26]See Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170

70      Mr Berthelot’s claim thus succeeds on both heads.

71      I shall make appropriate orders.

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