Jobe v Ward McKenzie Pty Ltd
[2007] VCC 647
•28 June 2007
IN THE COUNTY COURT OF VICTORIA Not Restricted AT MELBOURNE
CIVIL DIVISION
WORKCOVER LIST SERIOUS INJURY
Case No. CI-05-03674
JOBE Plaintiff
v
WARD MCKENZIE PTY LTD Defendant
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JUDGE:
HER HONOUR JUDGE KENNEDY
WHERE HELD: Melbourne
DATE OF HEARING: 21 June 2007
DATE OF JUDGMENT:CASE MAY BE CITED AS:
28 June 2007
Jobe v. Ward McKenzie Pty Ltd
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n of the
nt claim
ected as where
| For the Plaintiff | Mr R. Gorton QC with Mr S.M. Roseman | J N Zigouras & Co |
| For the Defendant | Mr J. Ruskin QC with Mrs N. Wolski | Wisewoulds |
COUNTY COURT OF VICTORIA
250 William Street, Melbourne
HER HONOUR:
Background
1The Plaintiff was born on 27 March 1952 and is 55 years old.
2The Plaintiff commenced employment with the Defendant on 27 September 1999.
3The Plaintiff sustained an injury on 6 May 2002 when struck on the head by an automated roller door.
4On 7 May 2002 the Plaintiff attended his GP complaining of a headache and of a stiff and painful neck.
5On 9 May 2002 the Plaintiff underwent an X-Ray of the cervical spine.
6On 10 May 2002 the Plaintiff lodged a claim for injury to his neck arising out of the incident on 6 May 2002 (“the first claim”).
7On 13 June 2002 the Plaintiff underwent a CT scan of the cervical spine.
8In August 2002 the Plaintiff was referred by Dr. Grogan to neurosurgeon Mr Han.
9On 16 August 2002 the Plaintiff underwent an MRI of the cervical spine.
10On 4 October 2002 the Plaintiff underwent an X-Ray of the thoracic spine.
11On 8 October 2002 the Plaintiff ceased work.
12On 30 October 2002 the Plaintiff underwent MRI of his thoracic and lumbar spine.
13On 13 November 2002 the Plaintiff lodged a claim for injury to his back (“discs bulge, fractured vertebrae”) arising out of the incident on 6 May 2002 (“the second claim”).
14On 24 December 2002 the second claim was rejected.
15On 26 September 2003 the Plaintiff lodged a claim for impairment benefits in the prescribed form. The claim identified the injury as a compression injury to the neck and T9 vertebrar (sic) fracture and identified the body parts affected as neck, shoulder, arm, lower back (“the relevant claim”).
16By letter dated 27 November 2003, QBE Mercantile Mutual accepted liability for the neck injury and the claim in accordance with s.104B(2) of the Act, and arranged a medical examination with Mr W. Doig for 5 February 2004.
17QBE Mercantile Mutual provided Mr Doig with medical reports relating to the Plaintiff’s medical condition.
18Mr W. Doig examined the Plaintiff and produced a medical report dated 28 April 2004, assessing the Plaintiff pursuant to section 91 in respect of the claim.
19On 25 May 2004 QBE Mercantile Mutual notified the Plaintiff of the assessment and his entitlement to compensation.
20On 31 May 2004 the Plaintiff completed a workers response form and accepted the assessment and calculation of entitlement and elected not to receive the compensation entitlement.
21On 16 December 2004 the Plaintiff underwent an x-ray of his lumbo-sacral spine.
22The Plaintiff first saw Mr Haw, orthopaedic surgeon, on 8 June 2005 who sought approval from QBE Mercantile Mutual for a L5/S1 fusion.
23The Plaintiff’s Form A application was lodged on 14 June 2005 with relevant documentation including the Plaintiff’s Affidavit sworn on 12 April 2005 and the proposed Statement of Claim (undated) (“the s134AB application”).
24The Plaintiff attended an examination arranged by QBE Mercantile Mutual by Dr Rowe on 18 July 2005.
25By letter dated 22 July 2005, QBE Mercantile Mutual agreed to meet the reasonable costs of the Plaintiff’s spinal fusion under the claim made on 10 May 2002.
26The Plaintiff’s 134AB application was rejected on 13 October 2005.
27The Originating Motion was filed on 18 October 2005.
28The Plaintiff underwent spinal fusion by Mr Haw on 3 November 2005.
29On 6 November 2006 the Plaintiff underwent MRI of his lumbar spine.
30The above facts were, helpfully, the subject of a Statement of Agreed Facts dated 22 June, 2007.
Issues
31At the first day of the hearing of this matter, Mr Ruskin QC, who appeared with Mr Roseman for the defendant, submitted that the claim for serious injury was incompetent insofar as it embraced the lower back.
32In particular, Mr Ruskin submitted that there was no determination of the degree of impairment made under s104B in respect of the whole spine pursuant to s134AB(3)(a).
33An issue further arose as to whether there was compliance with s134AB(5) given the form A application under s134AB specified the injury relied on as “injury to the neck.”
Statutory Provisions
34Section 134AB(3) reads as follows:
“A worker may not bring proceedings in accordance with this section unless-
(a)determinations of the degree of impairment of the worker have been made under section 104B and the worker has made an application under sub-section (4)”
35Section 134AB(5) further provides:
“ An application under sub-section (4)-
(a)must be in a form approved by the Authority; and
(b)must be accompanied by-
(i)copy of all medical reports; and
(ii)affidavits attesting to such other material-
existing when the application is made and of which the worker or his or her legal representative is aware and on which the worker intends to rely, or the substance of which the worker intends to adduce in evidence, in proceedings in accordance with this section or in any related proceedings.”
36Section 104B (at the relevant time1) was headed “claims for compensation under section 98C” and read;
“(1) In addition to the requirements under section 103, this section applies to a claim for compensation under section 98C
(2)The Authority or self-insurer must within 90 days of receiving the claim –
(a) accept or reject liability in relation to the claim; and
(b)advise the worker of the decision.
(3)If the Authority or self-insurer rejects liability in relation to the claim and the worker disputes the decision as to liability, the worker must not commence proceedings in relation to the claim unless the worker first refers the dispute for conciliation…
(4)If –
(a)the Authority or self-insurer accepts liability in relation to the claim…
the Authority or self-insurer must request the worker to attend an independent examination by
The parties agreed that I should consider reprint no. 12
a medical practitioner referred to in section 91(1)(b).
(5)The purpose of the independent examination is to obtain-
(a)assessments in accordance with section 91 as to the degree of permanent impairment, if any, of the worker resulting from the injury to the worker–
(i)for the purposes of determining the entitlement of the worker, if any, to compensation under section 98C;
(ii)for the purposes of sections 134AB(3) and 134AB(15)…
(5A) Unless sub-section (5B) applies, an assessment under this section can only be made in respect of one injury of a worker.
(5B)If a worker has more than one injury arising out of the same event or circumstance, all of those injuries must be included in the one assessment.”
Medical evidence
37In the Notice of Acceptance of Claim dated 27 November, 2003 the plaintiff was advised that an independent medical examination had been arranged with Mr Doig who was to be provided with reports from Dr Grogan (16.9.03 and 7.7.02), Dr McCarthy (8.7.03), Mr Klug (7.2.03) and Dr Kenna (23.9.02
and 5.8.02).
38The Court was taken to the reports of Dr Grogan and Mr Klug.
39The report of Dr Grogan dated 7 July, 2002 includes the following:
“On 24.5.02 he said he was getting spasms down the spine and right side of the neck…..
On 1.7.02 he reported ongoing neck and upper back pain but also new lower back pain and right leg pain. He stated he felt “hot” in the back of the neck. I told him I did not think the lower back pain and leg pain were related to his neck injury…” (emphasis added)
40The further report of Dr Grogan 16 September, 2003 includes the same notations as referred to above in the July, 2002 report.
41The report of Dr Klug of 8 January, 2003 includes the following:
“The MRI scan however of the same area [the thoracic spine] states that there was no evidence of any fracture in the thoracic spine but there was evidence of disc desiccation at multiple levels. The study also included the lumbar spine which demonstrated degenerative changes at the L5/S1 level with some degree of anterolisthesis which was thought likely due to a past defect although such were not clearly demonstrated by this study…
the blow was directly to the top of his head….Such an impact would cause a compressive effect on his spine and with such a mechanism it is conceivable that there could be injuries to regions of the spine other than the cervical area…
I therefore feel that as a result of the incident described he probably suffered an aggravation of a pre-existing degenerative disorder of his spine particularly the cervical region. Such would be consistent with the mechanism of injury…
After carefully considering this matter I feel it is most probable that this person, as a result of the impact on the top of his head, did sustain an aggravation of an already existing degenerative disorder of his cervical spine….” (emphasis added)
42The report of Mr Doig is dated 28 April, 2004. His report concentrates attention on the cervical spine but describes the incident on 6 May, 2002 and that on the next day the plaintiff “felt pain in his neck particularly” and “sometimes further down in his back and he found it hard to move.”
43The report also notes that the plaintiff still complains of a lot of pain in his neck “and his pain will go down towards the middle of his back with sometimes some pain around his chest.” Further, he had “a mild round back and some pressure on his back at about the level of T 7,8 &9…”
44He goes on to assess the plaintiff as having a 15% whole person impairment.
Whether there was the requisite determination of the degree of impairment (s134AB(3)(a))
45In my view there was a determination of the degree of impairment made under s104B for the purposes of s134AB(3)(a).
46Firstly, sub-s3(a) does not require that determinations must have been made
in respect of any specific injuries; rather, what is required is that there be a determination of the degree of “impairment.” This was clearly effected by the assessment of Dr Doig.
47Further, even if the impairment determination must be made in respect of the the entire spine, the material clearly raised the issue of the plaintiff’s entire spine for consideration.
48Thus, the relevant claim referred to the neck, shoulder, arm and specifically drew attention to the lower back as a “body part affected.” As indicated above, there were also references to the spine generally in the medical reports before Mr Doig, particularly by Dr Klug.
49It should be presumed that Mr Doig made his determination having regard to all the material before him which included the references to the lower spine in the medical material referred to above. Thus, the determination was made taking into account the plaintiff’s entire spine.
50Mr Ruskin submitted that it was important, as a matter of policy, for there to be an opportunity to have injuries evaluated so as to, possibly, avoid court except as a last resort and placed particular reliance on s104B(5B).
51Whilst s104B (5B) does appear to impose an obligation on a worker to ensure that the impairment assessment covers all injuries arising from the same event or circumstance neither s104B nor s134AB(3)(a) specifically shuts a worker out from making an application in respect of other injuries even if there is some failure to specify, with lawyer-like precision, all injuries.
52In any event, the plaintiff clearly included the lower back in the relevant claim and thereby discharged any obligation to ensure that the assessment covered his entire spine including his lower back.
53Mr Ruskin also referred the court to two cases, Eastwick v Oscar Furniture Pty Ltd [2006] VCC 1060 ( a decision of Judge Anderson) apparently conflicting
with a case of Rizzo v Commander Australia Pty Ltd (a ruling delivered by Judge Jenkins on 15 April, 2005).
54Insofar as they are relevant I prefer to follow the decision of Judge Anderson.
However, both those cases related to a situation wherein a physical injury had been pleaded and a separate psychiatric injury was sought to be added. I accept the submission of Mr Gorton QC (who appeared with Mr Roseman for the plaintiff) that these are distinguishable from the present case where the material before Mr Doig directed him to the relevant part of the body relied upon.
55Mr Ruskin further relied on the decision of the court of appeal in Linfox Transport Pty Ltd & Anor v Toohey [2004] VSCA 233 . This case was also concerned with a different issue in terms of whether there were independent injuries on the facts of that case for the purposes of s98C. The Court was not concerned with whether there was a determination of the degree of “impairment” for the purposes of s134AB(3)(a) and the case does not assist the defendant in this case.
56I am not satisfied that the plaintiff’s application is incompetent insofar as it embraces the lower back by reason of s134AB(3)(a).
Whether there has been compliance with s134AB(5)
57In terms of s134AB(5), Part B (which is entitled “Injuries and body function alleged to be impaired and the limb of section 134AB(37) of the Act relied upon”) specifies the injury or injuries relied on as “injury to the neck.” However, the body function or functions alleged to be impaired are said to be “neck, cervical spine, thoracic spine.”
58Part D provides a list of documents accompanying the application as required by section 134AB(5)(b) of the Act and the Ministerial Directions. These include a long list of medical material (not all of which is before this court) and
an affidavit of the plaintiff sworn 12 April, 2005.
59In the affidavit of the plaintiff of 12 April 2005 he refers to pain “down the right side of my neck and in my back” (para 18). He also refers to an MRI of the lumbar spine (para 24) and that the “symptoms of pain in my neck and back and numbness in my arms continue” (para 27).
60Part E of the application includes a draft statement of claim. This statement of claim specified the particulars of injury as “injury to neck at the C4-5, C5-6 level” and “fracture of vertebrae in the thoracic spine” (para 5).
61The application is in the prescribed form and appears to meet the requirements specified in s134AB(5). While it is true that the injury specified in the form A is an injury to the neck the body function alleged to be impaired included the spine. Moreover, the affidavit of the plaintiff specifically refers to the back. In my view there has been compliance with s134AB(5).
62In any event, I can discern no legislative purpose2 to the effect that any failure to specify a particular injury in the form A should shut the worker out from making an application under s134AB in respect of other injuries.
63Given part of the purpose of s134AB(5) appears to be the provision of notice to the Authority, there was clearly adequate notice of the back condition in this case given, by the time of the refusal, QBE had already agreed to meet the reasonable costs of the plaintiff’s spinal fusion as part of the plaintiff’s original claim for injury to his neck on 10 May, 2002.
64Mr Ruskin placed reliance on Ministerial Directions dated 20 December, 2001 promulgated pursuant to s134AF and s20C with respect to procedures under s134AB.
65Those Directions provided that the s134AB application and affidavit must, inter alia “specify the injury or injuries relied upon” (5.4(a)) and 5.6(a)). They
Project Blue Sky v Australian Broadcasting Authority ( 1998) 194 CLR 355
further provided that the form A was to “specify the injury or injuries relied upon” as to each cause of action.
66I consider that the plaintiff has adequately specified the injuries relied upon given the references to his spine in both the application and the affidavit.
67In any event, there is nothing in the Act or the Directions to suggest that a worker should be prevented from bringing an application under s134AB in the event of non-compliance with the guidelines.
68Section 134AF(5) provides that the Directions may specify that a failure to comply with a particular provision of the Directions has the effect of altering a period applicable under that section. Clause 15 of the Directions provides that in certain circumstances (which do not appear to apply here) there is an extension of time for compliance with s134AB(7) if there is non-compliance with the Directions.
69There is no indication in the Act or the Directions that a worker should be shut out in the event of non-compliance with the Directions. As indicated already, the purpose of s134AB(5)- in providing notice -appears to have been met given the Authority had actually processed and paid for a spinal fusion prior to the refusal of the claim under s134AB.
70I am not satisfied that the plaintiff’s application is incompetent insofar as it embraces the lower back by reason of s134AB(5).
Conclusion
71The defendant’s preliminary application to the effect that the plaintiff’s application was incompetent insofar as it embraced the lower back is refused.
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