Ali Kaya v Donna Rosa Foods Pty Ltd

[2008] VMC 11

IN THE MAGISTRATES COURT OF VICTORIA

AT MELBOURNE

WORKCOVER DIVISION

Case No. U02743849

Ali Kaya	Plaintiff
v
Donna Rosa Foods Pty Ltd	Defendant

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MAGISTRATE:	S Garnett
WHERE HELD:	Melbourne
DATE OF HEARING:	2 October 2008
DATE OF DECISION:	5 October 2008
CASE MAY BE CITED AS:	Ali Kaya v Donna Rosa Foods Pty Ltd
REASONS FOR DECISION

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Catchwords: ACCIDENT COMPENSATION - s 98C Claim – requirement to include all injuries in accordance with s 104B (5A) (5AA) (5B) Accident Compensation Act 1985

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr Cvjeticanin
For the Defendant	Mr McKenzie
HIS HONOUR:

1.  Mr Kaya was employed as a general hand/bread mixing operator with the defendant from 17 August 2003. He sustained injuries to his back, leg and left wrist in the course of his employment and in particular on 2 April 2004.

2.  The Agent accepted liability for these injuries. Mr Kaya was referred by his treating doctor for psychological counselling in August 2005 the treatment expenses being paid by the Agent after obtaining psychiatric opinion from Professor Mendelson and Dr Botvinik.

3.  Mr Kaya, through his solicitors, lodged an S 98C claim on 10 March 2006 citing injuries to his lumbar spine, left wrist and arm and neck strain, noting on the claim form that the body parts affected were left arm, shoulder/wrist, neck and back. The Agent accepted liability in relation to the back and left wrist. Importantly, for the purposes of these proceedings, Mr Kaya’s solicitors failed to include his psychological injury in the S 98C claim form. It was not until 23 April 2007, 13 months after lodgement of the S 98C claim that notice was given to the Agent that they wished to include his psychological condition as part of the claim to be assessed in accordance with S 91, 98C and 104B.

4.  The defendant objects to the psychological injury being included in the S 98C claim and relies on S 104B (5A), (5AA) and (5B) in support of their objection.

S 104B sets out the statutory formula for the processing of S 98C claims.
(5A) reads,

A worker must include all injuries arising out of the same

event or circumstance in a claim for compensation under

S 98C.

(5AA) reads,

A worker can only make one claim for compensation

under S 98C in respect of injuries arising out of the

same event or circumstance.

(5B) reads,

A determination of the degree of impairment must take into
account all impairments resulting from the injuries
entitling the worker to compensation included in the claim

for compensation under S 98C.

5.  The issue to determine is whether the provisions of the Act preclude Mr Kaya from amending his S 98C claim to include his psychological injury.

6.  Mr Cjvetachin contends that Mr Kaya should be able to include this injury, as it does not cause prejudice to the defendant, the claim is still proceeding and as such has not been finalised and therefore an amendment to injuries claimed is permissible, and finally, S 104B (5AA) should be given some “elasticity”. I disagree.

7.  The structure of S 104B places a heavy onus on workers and their solicitors to ensure that all relevant injuries are included in the claim form and therefore assessable in accordance with S 91.

8.  When lodging his S 98C claim, Mr Kaya and his solicitors were aware that he was suffering from a psychological injury, which arose because of the physical injuries he had sustained at work. It was incumbent on him and his solicitors to ensure that all injuries were included in the claim form so that the agent could arrange the appropriate assessments in accordance with S 91.

9.  When introducing the amending legislation in Parliament, which inserted the above provisions into the Act, the Minister said;

“This bill addresses the delay and cost factors through the following changes: ……improvements in the impairment benefit process to speed up compensation claims, by ensuring the level of impairment and the determination of liability are determined at the same time rather than the existing two-stage process..” [1]

[1] Minister Hulls 2nd Reading Speech 18 November 2004

10.S 104B does not provide exceptions to strict compliance as is contained in other sections of the Act, for example, S 102 (6), S 103 (8) and S 105 (4).

ORDERS:

11.I rule that Mr Kaya is precluded from including his psychological injury in his S 98C claim. The purpose behind and the wording of S 104B (5A), (5AA) and (5B) is clear.

12.I note this ruling is consistent with the decision of Magistrate Beder in Moffatt v MD & DR Forsyth.[2]

[2] Unreported 6 December 2005.

13.I might add, as I raised with counsel during the proceeding, it appears on the medical evidence tendered, that Mr Kaya’s psychological injury is “secondary” in nature and would be disregarded pursuant to S 91 (2) for the purposes of his S 98C claim in any event. Furthermore, the failure to include his psychological injury in the S 98C claim would not prevent him from pleading this injury in a S 134AB application, if applicable, having regards to the decision of His Honour Judge Anderson in Eastick v Oscar Furniture P/L.[3]

[3] Unreported 5 July 2006. His Honour declined to follow a decision by Her Honour Judge Jenkins in Rizzo v

Commander Australia P/L dated 14 April 2005 where she held that failure to include the injury in an S 98C claim prevented the plaintiff from including it in the S 134AB application.