Vellios Electrical Contractors Pty Ltd & Anor v Barton & Ors [2014] VSC 664

Vellios Electrical Contractors Pty Ltd & Anor v Barton & Ors [2014] VSC 664 - VSC 2014 case summary — Zoe

[42]

23 Apart altogether from the contemporaneous statement of reasons given by the Panel for its first opinion, such an interpretation would have been supported by the following matters, in combination: first, the fact that, except when he was in prison, the worker had been in receipt of weekly payments of compensation for some fourteen years, including twelve years subsequent to the expiry of the critical statutory period of 104 weeks following the accident; second, the fact that the proceeding in the County Court, and thus the referral to the Panel, arose out of a decision to terminate those payments (as distinct from a decision of an initial kind, such as a decision to refuse to grant a claim);[11] third, the fact that, in the parties' respective sets of submissions to the Panel (which were substantially the same on both sides as between 2008 and 2011), neither party had bothered to distinguish between past capacity and present capacity; fourth, the fact that the worker's initial challenge to the termination of his weekly payments (by referral to conciliation) had been made in a timely fashion (though its progress had been delayed for reasons that were, at least in part, understandable and obvious); fifth, the fact that substantial parts of the material (including the pleadings and submissions) provided to the Medical Panel as part of the original referral related or referred to the period in question, including the statement of the agreed fact that the worker "continued to suffer from an incapacity arising from his injury" during the time he was in prison between May 2008 and November 2010; and, sixth, the very terms of the Panel's original certified opinion, especially its answer to question 4 wherein the Panel stated that the worker's incapacity for work was "still" materially contributed to by the accepted lower back injury, and its answers to questions 5 and 6 wherein the Panel impliedly indicated that the worker had a permanent impairment (at the level of 21 percent) as a result of the 1989 injury to his lower back, alone.

[43]

24 In addition, to the extent that the original opinion might have been ambiguous, it would have been legitimate to interpret the opinion in the light of the contemporaneous statement of reasons that the Panel gave for the opinion.[12] In that statement of reasons, the Panel noted that it had taken into account not only the physical and psychological examinations of the worker which had been carried out by the members of the Panel but also the history that the worker had provided, the statutory particulars, the medical reports and like documents and the parties' written submissions. The Panel expressly referred to numerous aspects of the worker's history dating back to 1978, including his drug-taking, his criminal offences and his periods of imprisonment. It referred to the circumstances of the accident. It considered radiological imaging from 1989, 1991, 1994 and 2006. It referred to the worker's current symptoms. It concluded that the worker was suffering from "persisting" symptoms following a soft tissue injury of the lower back, in the setting of lower lumbar disc disease, without radiculopathy or residuals. From a psychological point of view, the Panel found that the worker may have previously suffered from an adjustment disorder but that this was now in remission, it having been treated for the previous ten years with anti-depressant medication. The Panel further concluded that the worker was not capable of performing his pre-injury duties as an electrician having regard to the extent of the limitation of activity imposed by his "ongoing" back condition. The Panel went on to refer to the "persistence of symptoms since onset" and concluded that the worker's "persisting symptoms following a soft tissue injury of the lower back" were "still materially contributed to by the accepted lower back injury". The Panel said that it therefore concluded that the worker's "incapacity for work" results from and is "still" materially contributed to by the back injury. The Panel proceeded to consider the statutory definitions relevant to the concept of incapacity, and it had regard to the various vocational reports supplied with the referral. The vocational reports had been completed in 2000 and 2002. The Panel concluded that the worker had "no current work capacity".

[65]

The defendants have provided the Panel with three court decisions concerning the plaintiff and his criminal background dating back to 1997.
On 28 September 1998 the plaintiff pleaded guilty in the County Court to drug trafficking in heroin. The period of trafficking was from 12 March 1997 to 22 August 1997, the date of his arrest. On 12 October 1998 the plaintiff was sentenced to a term of imprisonment of four years and nine months with a non-parole period of two years and eight months. As of that date the plaintiff had been in pre-sentence detention for a period of 416 days. (see Supreme Court of Victoria Court of Appeal decision [1999] VSCA 163).
Upon release the plaintiff breached his parole obligations and, as he told the Panel, was imprisoned for a further 11 months in 2000/2001.
On 14 September 2004, the plaintiff was sentenced to an effective period of three years and three months' imprisonment with respect to one count of theft, two counts of attempted armed robbery and two counts of armed robbery. There was a minimum non-parole period of 21 months. The offences took place on 29 March 2004 and 31 March 2004. As of the date of the sentence the plaintiff had been in pre-sentence detention for a period of 167 days. (see County Court decision of Judge White - R v Vellios delivered 14 September 2004).
In sentencing the plaintiff, Judge White noted that the plaintiff had admitted to 17 court appearances commencing in December of 1983, with there being a ten year gap until February 1994, and that the plaintiff had had a total of some 45 convictions. After the ten year gap, the plaintiff's offending had recommended following the breakdown of his marriage and separation from his wife and son. Judge White also commented that, in the past, the plaintiff had been leniently treated by the courts and had received a number of suspended sentences.
On 18 December 2008, the plaintiff was sentenced to an effective period of three years and six months' imprisonment with respect to one count of armed robbery, one count of causing injury recklessly and summary charges of going equipped to steal and driving whilst his licence was suspended. There was a minimum non-parole period of two years and four months. The offences took place on 4 May 2008. As of the date of the sentence the plaintiff had been in pre-sentence detention for a period of 228 days. (see County Court decision of Judge Hicks - R v Vellios delivered 18 December 2008).
In sentencing the plaintiff, Judge Hicks commented that, during the breakdown of the plaintiff's marriage and, at the age of 35, the plaintiff started to abuse heroin. In particular, his Honour stated that from the commencement of taking heroin, the plaintiff's life spiralled downwards and the plaintiff committed many criminal offences.
In attempting to assess the plaintiff's work capacity during the period from 20 September 2003 to 25 May 2012, the Panel is asked to consider that, but for the plaintiff's criminal activities, he should have had a capacity for suitable employment. Whether such work was available or not was irrelevant.

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Judgment (231 paragraphs)

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Legislation Cited (6)

Cases Cited (19)