Cole v Wingfoot Australia Partner (WorkCover)

[2008] VMC 22

IN THE MAGISTRATES’ COURT OF VICTORIA
AT MELBOURNE

WORKCOVER DIVISION

X01316636

B E T W E E N

JUSTIN COLE

Plaintiff

-and –

WINGFOOT AUSTRALIA PARTNER PTY. LTD.

Defendant

MAGISTRATE:   B.R. Wright


WHERE HEARD:   Melbourne


DATE OF DECISION:   07 August 2008

MEDIUM NEUTRAL CITATION:                 [2008] VMC022

APPEARANCES

Mr. M. Waugh (instructed by Ryan Carlisle Thomas) for the plaintiff

Ms. B. Knoester (instructed by Dibbs Abbott Stillman) for the defendant

REASONS FOR DECISION

Accident compensation – Weekly payments – Receipt of termination lump sum – Date became eligible to receive weekly payments – Date of commencement of preclusion period – Accident Compensation Act s.96 (2)

HIS HONOUR

In this matter the defendant admits liability to pay further weekly payments of compensation to the plaintiff from 8 November 2007. However, it says that because the provisions of s.96 of the Accident Compensation Act (“the Act”) it is not liable to pay those benefits until after the expiry of the appropriate preclusion period.

The plaintiff agrees that there is a relevant preclusion period. However, the plaintiff says that the s.96 preclusion period should start from the date of receipt of the relevant lump sum redundancy benefit on or about 16 June 2006.

In essence I am asked to rule as a preliminary point, if I am so able, on the appropriate commencement date of the preclusion period.  Almost all of the facts are agreed between the parties.

The plaintiff, now aged 34 years old, was employed as a storeman by the defendant from 6 May 1996.  His job involved the manual handling of various types of motor vehicle and truck tyres.  He injured his lower back on at least 5 July 2005 and 20 September 2005 in respect of which claims for both dates have now been admitted or accepted. 

He ceased work on 20 September 2005 and began to receive weekly payments.  On 22 November 2005
Mr John Owen, orthopaedic surgeon, performed an L5/S1 discectomy/rhyzolisis.

He was paid weekly payments from the time he ceased work.  He returned to part-time light duties on 3 April 2006 and full-time light duties on or about 10 April 2006.  The weekly payments of compensation ceased on or about 7 April 2006.  I was told he did not return to his pre-injury accident employment duties at any time, but was paid his pre-accident wage.

Around June 2006 everyone at the defendant’s factory was retrenched, including the plaintiff.  He was told he could not get a redundancy benefit unless he was fit to return to normal duties.  His GP, Dr Ng, gave him a certificate that he was fit for full duties on
1 June 2006.

He ceased work on 16 June 2006 and shortly after received a redundancy lump sum benefit of about $54,000 gross.  All of that amount may not be appropriate for inclusion in

the relevant s.96 preclusion amount. The relevant amount is not important for the purposes of this ruling. I was told that he put the lump sum towards his mortgage.

He obtained casual employment as a forklift driver with Westgate Logistics between August 2006 and December 2006 and later full-time employment in the same capacity until about October 2007.  It was agreed that he ceased work again from 22 October 2007 and has been unable to perform any work at all since that date.

He submitted a further claim against the defendant on the basis that there was a recurrence of his back injury with the defendant.  Of course, he had not worked for the defendant since 16 June 2006 and had in fact worked for another employer in the meantime.  Thus, there was more of a recurrence of his incapacity rather than the initial injury, though this is really not relevant for current purposes. 

The further claim was denied by the authorised agent of the VWA on 8 November 2006.  However, at a conciliation hearing on 2 January 2008, the rejection was set aside by an admission of liability by the authorised agent.

On 10 January 2008 the authorised agent served a further notice suspending the entitlement to weekly payments pursuant to s.96, backdated from 22 October 2007, which of course was the date that he finally ceased work. It is from that decision that these proceedings arise.

The plaintiff has tendered some medical reports which give some explanation as to why the decision was made to set aside the rejection of the later claim.

The plaintiff was examined on the defendant's behalf by Mr Hugh Weaver, orthopaedic surgeon, initially on 19 April 2006, that is while he was working for the defendant. He examined him again later on 22 July 2008.

On the later occasion he offered the opinion that the plaintiff's condition had not changed to any significant extent over the two year period between those examinations and that the plaintiff had significant partial impairment of the lower back for industrial purposes.  

Further, he said that the plaintiff’s ongoing problem continued to reflect very substantially the effects of the injury which he sustained in the course of his employment in early 2005. He concluded that the plaintiff had no significant work capacity at all.

Other medical material from treating doctors was filed as well from Mr Peter Wilde and Mr Owen, who did the initial surgery.  The defendant tendered a medical report from the treating general practitioner, Dr. Ng, who signed the medical certificate on 1 June 2006.

Dr Ng, in a short report dated 19 February 2007, points out that he had not seen the plaintiff between 1 June 2006 and the date of his report.

That should be compared with the report of Mr Wilde, a further treating orthopaedic surgeon, who examined the plaintiff on 4 July 2006 and 11 October 2006 and found that the plaintiff was not fit to return to his full
pre-injury work or other forms of physical manual work as a hands-on storeman.

I set out this medical material for information purposes as to a large extent this is not relevant for the present ruling.  The defendant does not dispute that the plaintiff no stage actually returned to his pre-accident duties at the defendant's premises.  I refer to the Notice of Termination dated 14 June 2006 referring to the plaintiff's return to pre-injury hours rather than pre-injury duties (emphasis added).

The issue to be considered in this ruling is a narrow one. Both parties agree that s.96(2)(a) applies to this case. Even if it was relevant, there was no appropriate deposit of the lump sum. It is really a matter of consideration of the last six lines of s.96(2) to determine the appropriate commencement date of the preclusion period.

The relevant date is the later of two events being firstly the date of receipt of the relevant amount, and secondly the date of eligibility to receive weekly payments.  The first date is not disputed. It is the second date that causes difficulty.

The plaintiff says that he became eligible to, and did, receive weekly payments between September 2005 and April 2006. 

The defendant says that the relevant date is that of the date of commencement of “no current work capacity” entitlement after he ceased work on 22 October 2007.

When the later date of the two events is determined the plaintiff is ". . not entitled to weekly payments over the preclusion period commencing on that later date".

This case is unusual in that the plaintiff has not returned to work with the defendant since ceasing work there in June 2006. He does not rely on any injury after those occurring prior to the initial workers compensation claim as set out in the claim form and the employer’s claim report at that time.

Both parties rely, to a large extent, on Cassar v. VWA (1996) 1 VR 490. However, since that judgment was considered there have been significant amendments to s.96 pursuant to Act 7 of 1996 and Act 60 of 1996.

Also, changes were made to s.93B(3A), which were reflected in the later enactment of s.93CB(1) which governs the plaintiff's entitlement to weekly payments.

Pursuant to that latter sub-section, there must now be an actual receipt of or entitlement to receive weekly payments rather than mere period of incapacity, which was relevant in Cassar.

Reference is also made to a decision in this court in Talevska v. CGU, a decision of His Honour Magistrate Garnett delivered on 15 March 2007.

I have some difficulty in agreeing with that decision to the extent that His Honour took into account the question of whether there was an entitlement to weekly payments prior to the delivery of an opinion by a medical panel and His Honours reference to dicta in Cassar.

In any event, in Talevska the plaintiff received a lump sum retrenchment benefit three years prior to the submission of a claim form seeking weekly payments from about that three year post-employment date which is different to the present case.

In the present case the plaintiff was eligible to, and did, receive weekly payments from September 2005 to April 2006.  The provisions do not require there to be an existing entitlement to weekly payments at any time.  Rather, the provision says that there is no entitlement to weekly payments in the relevant period.  It merely speaks of eligibility to receive weekly payments, which is expressed in the past tense.

There is no real differentiation of injury with the defendant.

The plaintiff became eligible to, and did, receive weekly payments up to April 2006. As the lump sum redundancy benefit was not received until 16 June 2006, that later date is the relevant date for the commencement of any preclusion period pursuant to s.96(3) of the Act.

If one takes the defendant’s argument to a situation where a worker has various periods of “eligibility” to receive weekly payments and periods of non-entitlement to weekly payments in between, what would be the consequences of that?

If there is a continuous s.96 preclusion period, is that period suspended itself, when the worker returns to limited periods on full duties?

It would appear that that interpretation would make the provision virtually unworkable in those circumstances. The clear intention of the s.96 provisions is that there be no “doubling up” of weekly payments and other deemed benefits paid by the employer over the same period.

The effect of this ruling is that the worker is not entitled to weekly payments over the period immediately after the receipt of the lump sum.  As stated, at no stage is it alleged that he ever returned to pre-accident duties after the initial claim. 

All of the specialist evidence from both sides is that he had a current work capacity at best since ceasing work.  It is only the GP’s certificate and report that states otherwise.  That certificate was obtained at the request of the defendant prior to the payment of the lump sum to the plaintiff.

On one view of the issue it may be said that there is an ambiguity in this provision of s.96 in this present situation. Having regard to the well established dicta in such cases of ambiguity, that which is favourable to the worker should be referred (see e.g., Dodd v. Executive Air Services [1975] VR 668 at 679 and 682).

Therefore, I determine in this case that the relevant commencement date for the preclusion period pursuant to s.96(3), is on or about 16 June 2006.

I will give liberty to apply to the parties to determine the exact preclusion period in the event that they are unable to determine such period themselves.