Ali v Victorian WorkCover Authority

Case [2023] VSCA 156

SUPREME COURT OF VICTORIA

COURT OF APPEAL
S EAPCI 2022 0096
MOHAMMAD SALEH MOHAMMAD ALI Applicant
v
VICTORIAN WORKCOVER AUTHORITY Respondent

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JUDGES: PRIEST, T FORREST and KAYE JJA
WHERE HELD: Melbourne
DATE OF HEARING: 7 June 2023
DATE OF JUDGMENT: 23 June 2023
MEDIUM NEUTRAL CITATION: [2023] VSCA 156
JUDGMENT APPEALED FROM: [2022] VCC 1442 (Judge Misso)

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ACCIDENT COMPENSATION – Appeal – Workplace injury – Worker injured with angle grinder – Claim for serious injury under physical impairment and mental impairment definitions of ‘serious injury’ in s 325 of Workplace Injury Rehabilitation and Compensation Act 2013 – Claim rejected by WorkCover – County Court proceeding commenced – Trial judge dismissed application – On application for leave to appeal the application was confined to mental impairment – Whether trial judge failed to show path of reasoning in dismissing application under mental impairment definition of serious injury – Whether trial judge erred in not granting leave based on mental impairment definition of serious injury – Leave to appeal refused.

Dressing v Porter [2006] VSCA 215, Rodda v TAC [2008] VSCA 276, Poholke v Godlacres Trading Pty Ltd [2016] VSCA 232 and Carbone v Toyota Motor Corporation Australia Ltd [2017] VSCA 249 referred to.

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Counsel
Applicant: Mr C Hangay and Mr B Johnson
Respondent: Ms F Ryan SC with Mr R Kumar

Solicitors
Applicant: Zaparas Lawyers
Respondent: Wisewould Mahoney

PRIEST JA
T FORREST JA
KAYE JA:

  1. The applicant was employed by Australian Japanese Pty Ltd. His role involved repairing cars, driving a forklift and a tow truck, removing car parts, and reassembling both parts and cars.

  2. On or about 5 November 2016, the applicant suffered an injury at work to his left forearm whilst using an angle grinder.

  3. The applicant, as plaintiff, brought an application pursuant to s 328 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (‘WIRC Act’) against the respondent, the Victorian WorkCover Authority (‘VWA’). The applicant claimed in respect of the injuries said to cause impairment to his left upper limb and neck, together with psychiatric injury. He relied on both paragraphs (a) and (c) of the definition of ‘Serious Injury’ in s 325 of the WIRC Act. The Serious Injury Application was rejected by the VWA. The applicant then commenced a proceeding by Originating Motion in the County Court pursuant to s 335 of the WIRC Act.

  4. The hearing in the County Court took place over four days on 10, 11, 12 and 17 August 2022. The trial judge dismissed the application with costs.[1]

  5. The applicant brings this application for leave to appeal pursuant to s 14A of the Supreme Court Act 1986. This Court may only grant leave to appeal where the appeal has a ‘real prospect of success’.[2]

    [2]Supreme Court Act 1986 s 14C.

  6. The applicant advances two grounds of appeal:

    a) Ground 1: In dismissing the application relying upon paragraph (c) of the definition…

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Details
AGLC
Ali v Victorian WorkCover Authority [2023] VSCA 156
Case
[2023] VSCA 156
Decision Date

CaseChat Overview and Summary

The applicant, Mr Ali, appealed against the decision of the County Court of Victoria, which dismissed his application for a serious injury certificate. Mr Ali sustained injuries to his left hand and forearm when an angle grinder kicked back while he was cutting the chassis of a car. He sought a serious injury certificate under the definitions of serious injury in section 325 of the Workplace Injury Rehabilitation and Compensation Act 2013, which include physical impairment and mental impairment. The County Court rejected his application. The Victorian Court of Appeal was asked to determine whether the trial judge erred in dismissing the application under the mental impairment definition of serious injury and whether the trial judge failed to provide a clear path of reasoning in dismissing the application under the mental impairment definition.

The Court of Appeal found that the trial judge did not err in dismissing the application under the mental impairment definition of serious injury. The Court noted that the trial judge considered the relevant factors in determining whether Mr Ali's mental impairment was a serious injury. The Court found that the trial judge provided a clear path of reasoning in dismissing the application under the mental impairment definition, and that the trial judge's decision was supported by the evidence. The Court of Appeal found that Mr Ali's mental impairment did not meet the threshold for a serious injury under the mental impairment definition. The Court noted that Mr Ali's mental impairment was not permanent and that his symptoms were manageable with treatment. The Court found that Mr Ali's mental impairment did not significantly impair his ability to carry out normal daily activities.

The Court of Appeal dismissed the appeal and affirmed the decision of the County Court. The Court found that the trial judge did not err in dismissing the application under the mental impairment definition of serious injury, and that the trial judge provided a clear path of reasoning in dismissing the application. The Court noted that Mr Ali's mental impairment did not meet the threshold for a serious injury under the mental impairment definition, and that his symptoms were manageable with treatment. The Court found that Mr Ali's mental impairment did not significantly impair his ability to carry out normal daily activities. The Court of Appeal dismissed the appeal and affirmed the decision of the County Court. The Court found that the trial judge did not err in dismissing the application under the mental impairment definition of serious injury, and that the trial judge provided a clear path of reasoning in dismissing the application. The Court noted that Mr Ali's mental impairment did not meet the threshold for a serious injury under the mental impairment definition, and that his symptoms were manageable with treatment. The Court found that Mr Ali's mental impairment did not significantly impair his ability to carry out normal daily activities. The Court of Appeal dismissed the appeal and affirmed the decision of the County Court.

Orders

Orders of the court

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Background

Background to the litigation

In his first affidavit sworn on 21 April 2020 the applicant deposed the following:BackgroundHe was born on 11 March 1984 in Afghanistan. He is right-handed.He is married with two children – one three years old and one seven years old.He attended school in Afghanistan until grade six but did not attend secondary school.While a teenager in Afghanistan he learnt to be a mechanic and worked in that role until he came to Australia.He met his wife in Afghanistan in 2009. They married that year and then moved to Australia in 2010.Upon arriving in Australia he worked for a builder before working for a butcher. He stopped this work when his wife fell pregnant and the couple moved to Melbourne.Prior medical historyIn 2012 he started experiencing pain in his right shoulder due to work. He attended the doctor on several occasions and was prescribed medication, before receiving a cortisone injection which resolved the pain at the time.After Christmas 2012 he began experiencing panic attacks. He was under a lot of pressure from his family and he believes the episode was caused by an argument. He attended Casey Hospital Emergency Department. He was told that he reported experiencing visual hallucinations as well as panic attacks. He does not recall being referred for any psychological treatment. Nor does he recall having similar psychiatric episodes prior to Christmas 2012 or prior to the date of his workplace injury.He has been shown notes that record that he attended First Health Medical Clinic on 5 July 2015 for left shoulder pain, and that he had experienced this pain for over a week after opening an engine. As a result of the pain worsening over the next week he was referred for an ultrasound and an injection.On 15 July 2016, at the same employer with whom he suffered the workplace injury the subject of this appeal, he was hit in the head by a piece of metal attached to a strap that came loose. He recalls that he lost consciousness and as a result of dizziness upon awakening was taken to the Monash Health Emergency Department where he was provided with some analgesia and sent back to the care of his general practitioner. He recalls that the headaches and dizziness last for a about a week after the injury, along with soreness on the left side of his head. He was otherwise in good health at the time of the injury described below.The workplace injuryHis role involved driving a forklift and tow truck, repairing cars and engines, disassembling and re-assembling cars. He worked six days per week.On 5 November 2016 he was working on the chassis of a car that was too long to fit into a truck and needed to be cut in half. He wanted to use a gas cutter to do so. He often told other workers to use a gas cutter as it is safer than an angle grinder. However, his boss told him to use an angle grinder to cut the chassis as doing so would be quicker and cheaper. Using an angle grinder was not part of his usual job.He took the angle grinder in his left hand and began to cut the chassis. When the blade was partway in to the chassis the grinder kicked back, causing the grinder’s blade to come out of the chassis. The blade cut his left forearm and injured his left thumb.He dropped the grinder and called for help as blood sprayed from his cut. On the way to the hospital he was shaking and felt a sharp pain in his left hand but no feeling in those fingers.Upon arrival at the Monash Hospital his wound was bandaged. He was transported to Dandenong Hospital for surgery which occurred the following day. He understood that the surgery was to repair the left ulnar artery, ulnar nerve and the flexor carpi ulnaris tendon.He was discharged on 7 November 2016. His left forearm was in a cast for approximately two months after the surgery. His left arm and hand felt numb after the surgery.He was prescribed Endone for pain after the surgery which he took for approximately one month but stopped due to side effects. This led to an increase in pain in his left hand forearm and elbow, and eventually in his left shoulder and neck.After the surgery he was referred to South Eastern Hand Therapy. He undertakes hand therapy weekly. His hand therapist referred him to physiotherapy as well as hydrotherapy. At the time he attended a pool for hydrotherapy twice a day but now goes once a day.He reported that shortly after the incident he began experiencing burning pain in his left hand and as well as difficulty flexing, and that he still has this pain and difficulty.In December 2016 he was prescribed Lyrica. Since the incident he has also been prescribed Zofran, Panadeine Forte, Lyrica, Endone and Lexapro. He has stopped taking Lyrica at times due to drowsiness and dizziness. He has also been prescribed ointments such as hydrocortisone cream and Bactroban ointment.In July 2017 he saw Dr Weekes, a pain specialist. On 25 July 2017 he underwent an MRI of his cervical spine and left forearm which he understood revealed minor scarring in his left forearm as well as a mild right paracentral disc bulge at C5/6. Dr Weekes recommend that the applicant undertake left third occipital nerve and C3-C5 medial branch blocks. However, he did not have these procedures due to the uncertainty of their effectiveness as well as his apprehension about needles.He saw a social worker as he was not sleeping well, feeling very down, fighting with his wife and having bad dreams. The social worker referred him to a psychologist around November 2017. He applicant saw the psychologist once but did not get on with him and so did not see him again.His psychological symptoms worsened. He saw another psychologist on approximately 12 occasions who referred him to his current psychologist. He also sees a psychiatrist.He undertook a pain management course at Frankston Hospital for six weeks, three days a week. While it helped him a little, his pain and numbness are still present.He sometimes pays for massage out of his own pocket as his insurer refuses to pay for physiotherapy.Loss of incomeHe has not been able to work since the incident and has lost a substantial amount of income.He tried to return to work in 2016 or 2017 but was unable to work due to pain.Pain and suffering consequencesHe experiences burning pain as well as pins and needles in his left hand and forearm. At times he also experiences numbness. These sensations wake him at night, and he does not feel that medication is helping with the pins and needles.He also experiences pain in the back of his left shoulder, as well as his neck. The neck pain remains for approximately 2–3 days until he attends hand therapy.When his neck is stiff and painful he experiences headaches. He experiences headaches on average approximately twice a week and he takes Panadeine Forte and Lyrica. Prior to the incident he did not experience frequent headaches.He continues to have hand therapy once a week. He has a 6–7 centimetre scar on his left forearm which he covers if he is wearing a short sleeve top. A number of his left hand fingers are numb, his left thumb has recently started to move involuntarily and his pinkie finger shakes.He does some house chores and gardening but cannot use his left hand. He can no longer play basketball with his son which upsets him. He can sometimes turn on a tap with his left hand but feels pain. He cannot open a jar, and struggles to lift or carry more than around three kilograms of weight with his left hand without pain. He has also had to restrict his prior swimming activities.Currently he takes 150 milligrams of Lyrica twice a day, two grams of Panadeine Forte daily, 50 milligrams of Sertraline daily and 30 milligrams of Mertazapine daily. He also takes Nexium and Lactulose for the constipation caused by the other medication.He sees a psychologist once a month. He has trouble sleeping, often waking during the night. He experiences distressing dreams and wakes in a bad mood. He frequently thinks about the incident and experiences flashbacks. Sometimes when he is driving he forgets how he got to his destination.He has experienced a decline in his intimate relationship with his wife. He feels worthless and has had thoughts of crashing his car. However he reminds himself of his children when he feels very upset. His relationship with his children has been affected by his mood as at time he gets angry when they want to spend time with him.He previously had lots of friends and enjoyed socialising yet his low mood has caused him to lose a lot of friendships. He was previously outgoing and enjoyed going on outings with his wife. However, he no longer wants to go out with his wife and children which has led to arguments with his wife. Apart from visiting a mechanic friend and at times going out with his wife and children he prefers to spend his time alone.He misses his work and feels greatly distressed when he thinks of the impact of his injury on this ability to work. He feels jealous of his friends who are able to work. His current financial situation has put a great deal of stress of his relationship with his family. He has to be ‘dragged out’ of the house to spend time with his family and when he does he feels like a ‘zombie’.He requested a serious injury certificate for the injuries he sustained due to the incident.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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