CGU Workers Compensation (Vic) Ltd v Param Jit Kaur

[2007] VMC 1

IN THE MAGISTRATES COURT OF VICTORIA

AT MELBOURNE

WORKCOVER

Case No. W00601522

CGU Workers Compensation (Vic) Ltd	Applicant
v
Param Jit Kaur	Respondent

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MAGISTRATE:	S Garnett
WHERE HELD:	Melbourne
DATE OF HEARING:	20 March 2007
DATE OF DECISION:	20 March 2007
CASE MAY BE CITED AS:	CGU Workers Compensation (Vic) Ltd v Param Jit Kaur
REASONS FOR DECISION

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Catchwords: S 60 – Revocation Application – Onus – meaning of “Genuine Dispute” – 104 week Termination – “current work capacity”

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr Richards
For the Respondent	Mr Horner
HIS HONOUR:

1. This is an Application pursuant to S 60 of the Accident Compensation Act 1985 to revoke a Direction made by a Conciliator pursuant to S 59(7) on 1 March 2007 that weekly payments be made to the Respondent for the period 17 December 2006 to 28 February 2007 and from 1 March 2007 to 24 May 2007 in accordance with S 59(5).

2.   The issue to determine is whether there is on the material annexed to the Affidavit of Michelle Bailey and documents tendered during the hearing of the application, a “genuine dispute” (“an arguable case”) or as His Honour Judge Rendit said in FAI v Krilis on 25 September 1995, “whether there was credit worthy material before the conciliation officer on whether he or she could be satisfied that there was no genuine dispute”. I also accept His Honours ruling that this hearing is a hearing de novo.

3.  I have also considered the meaning of “genuine dispute” as referred to in the decisions of:

- ACC v ACT and Walker 1989 2 Vic ACR 450.
- HIH v Hall Judge Strong 27 November 1997, and
- Ansett Australia v Brown Judge Strong 8 September 2000.

4.  In Hall, Judge Strong said at page 15; “In this context, the expression “genuine dispute” should be construed broadly. It is not the function of a Conciliation Officer to adjudicate. Although the addition of the adjective “genuine” suggests that the Conciliation Officer may in an appropriate case distinguish between a genuine and non-genuine dispute, it could only be in the clearest case that the Conciliation Officer should appropriately declare a dispute not to be genuine”.

5.   His Honour also applied this meaning of “genuine dispute” in Brown’s case.

6.  In this proceeding the Respondent is currently aged 44 years having been born on 15 May 1962. She completed Year 10 schooling in India and from 1992 has performed factory duties and with Rebound Clothing Company P/L from 1994 to December 2004 as a process worker and presser. Her duties required the pressing of clothes, packing and unpacking of garments which necessitated prolonged standing and repetitive lifting and bending.

7. As a result of these work functions she sustained a posterior disc protrusion at L5-S1 from approximately June 2004. She lodged a claim in accordance with the Accident Compensation Act 1985 which was accepted by the Applicant and received weekly payments of compensation until 17 December 2006 when they were terminated following a Notice of Termination dated 15 September 2006 and served pursuant to

S 93CC & 114 of the Act. In effect the Applicant alleged she had a “current work capacity”.

8.   In support of the decision, the Applicant relied on the following material:

a.	a medical report from Dr Brown Occupational Physician 30 August 2006;
b.	Vocational Reports from Counselling Appraisal Consultants 17 August 2006 and 28 December 2006;
c.	a medical report from the Respondents treating doctor, Dr Venkataraman 12 November 2006.

and at the hearing of the Application, the following reports were tendered;

d.	a Medical Information Form completed by Dr Venkataraman 19 August 2006 at the request of Counselling Appraisal Consultants;
e.	Job Fast Vocational Assessment Report 19 April 2006;
f.	Job Fast Job Seeker Plan 30 November 2006; and,
g.	Job Fast Halfway Report 9 February 2007.

9.  The reports tendered by the Applicant at the hearing were as a direct result of questioning by me as to what steps the Applicant had taken to provide rehabilitation services to the Respondent. On this issue the Agent is to be commended for its efforts in assisting the Respondent to improve her skills to enhance her employment prospects. All too often self insurers and agents seek to terminate workers weekly payments at the 104 week mark (soon to be 130 week) without due regard to their legal obligation to provide for the effective occupational rehabilitation of injured workers as required by the Act.

10.However, this is not the issue to be determined in the present application. The issue is whether the Applicant has, on the material presented, satisfied this court that there is a “genuine dispute”.

11. The material clearly indicates that the Respondent;

- does not have the capacity for pre-injury duties or any other tasks which

involve frequent bending/lifting or constant standing;

- is capable at present for light seated duties if she has the capacity for regular

“stretch breaks”;

- has a limited command of English despite recently completing an English course at an Adult Community Education program as recommended by a vocational assessor;
- has limited computer skills although these have been improved recently by her

participation in job seeking sessions;

- has limited transferable skills having regards to her employment history;
- has a very restricted employment capacity by virtue of the nature and extent of

her injuries and the matters referred to above, all of which has resulted in Counselling Appraisal Consultants not being able to identify any suitable light process work available to her.

12.It is on the basis of the material presented by the Applicant and the meaning and application of “suitable employment” and “no current work capacity” that I find that the Applicant has failed to persuade the Court that there is a “genuine dispute”. The meaning and application of “suitable employment” in S 5 has been the subject of numerous decisions including the Court of Appeal in Barwon Spinners on 25 February 2005. The Court of Appeal interpretation has been applied to cases involving statutory benefits (see Levey v Apex Printing P/L Judge G D Lewis 31 October 2005).

13. whether an injured worker has a capacity for “suitable employment”.

It is trite law to say that a “degree of reality” must be applied to the question of Care Network Judge Higgins, Holt v Kleyn Plant Hire P/L Judge G D Lewis 27 August 2002, Vitoratos v VWA Judge Coish 17 July 2003, Williams v Mullins Wheels Judge Coish 12 February 2004, Sumner v Multie Technology Distribution Judge Bowman 19 April 2005, Baker v Byrne & CGU Judge Bowman 27 September 2005, Opashinova v Melbourne Health Judge Jenkins 27 October 2005, Tran v Visy Recycling Operation P/L Judge Lawson 2 December 2005, McPeake v David & Francine Bell & Ors Judge Bowman 22 February 2006, Busuttil v Ford Performance Vehicles Judge Wood 28 April 2006, West v Pacific Brands Holdings P/L Judge Cohen 20 June 2006, Gascovski v Wiltari P/L Judge Strong 27 June 2006, Cihan v Chiquita Mushrooms P/L Judge Strong 12 July 2006, Roberts v M & A Davis Holdings P/L & Ors Judge Cohen 11 December 2006, Alic v Wiredex P/L Judge Hannan 2 February 2007, Haeusler v Flexidrive Industries P/L Judge Morrow 7 February 2007 and Henderson v Nulab Professional Imaging Judge Barnett 19 February 2007).

ORDERS:

14.In my opinion, on the basis of the evidence presented and the application of the law it is not arguable that the Respondent has a “current work capacity”.

15. I find that there is no “genuine dispute” and accordingly dismiss the application.

16.I Order that the Applicant pay the Respondents costs on Scale C including a