Klein v VWA

[2016] VMC 13

IN THE MAGISTRATES COURT OF VICTORIA

AT LATROBE VALLEY

WORKCOVER DIVISION

Case No.F13515219

ROBERT KLEIN	Plaintiff
v
VICTORIAN WORKCOVER AUTHORITY	Defendant

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MAGISTRATE:	S GARNETT
WHERE HELD:	LATROBE VALLEY
DATE OF HEARING:	18 AUGUST 2016
DATE OF DECISION:	23 AUGUST 2016
CASE MAY BE CITED AS:	KLEIN v VWA
MEDIUM NEUTRAL CITATION:	[2016] VMC013

REASONS FOR DECISION

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Catchwords: 130 week termination – capacity for employment – suitable employment - Adjournment application to prepare documentation in order to make an application to the Court to refer medical questions to a Medical Panel pursuant to S 274 Workplace Injury Rehabilitation and Compensation Act 2013. Application refused. Issues involved are more appropriately determined by a Court rather than a Medical Panel – s 274 (5).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr Horner	Maurice Blackburn
For the Defendant	Ms Blanchett	Minter Ellison

HIS HONOUR:

1. This proceeding was listed as a Directions Hearing in the Latrobe Valley circuit commencing 15 August 2016. The defendant made an application to the court to have the proceeding adjourned to the Melbourne list on 19 September for the purposes of preparing the necessary documentation in order for an application to be made to the court to refer medical questions to a Medical Panel for an opinion in accordance with S 274. Initially, the defendant’s application was not opposed by the plaintiff.

1. At my request the court was provided with Vocational Assessment and other reports prepared by Recovre in 2014 and 2015 in order to ascertain whether the issues in dispute involved the resolution of factual issues which would be more appropriately determined by a court rather than a Medical Panel. After reading the reports and considering submissions from the parties I refused the defendant’s application to adjourn the proceeding to allow an application to be made to refer medical questions to a Medical Panel.

1. Mr Klein issued proceedings in October 2015. He is 53 years of age, lives in Mirboo Nth and was employed by Hogan Staff Pty Ltd as a truck driver. He sustained injuries to his left knee in the course of his employment on 21 April 2005 and has been incapacitated for employment since that date. His WorkCover claim was accepted and he remained in receipt of weekly payments until 10 August 2015 on which date they were terminated by Allianz on the grounds that he had received 130 weeks of weekly payments, that he had a work capacity, or if he did not have a current work capacity it was not likely to last indefinitely or was not as a result of his accepted injury.

1. The documents provided to the court consisted of; Vocational Assessment Reports dated 15 July 2014 and 14 August 2014; a Re-Education Assessment Report dated 14 August 2014; a Labour Market Report dated 8 April 2015; a Job Seeker Plan dated 23 June 2015; and, an Week 8 Job Seeker Plan dated 20 August 2015.

1. In the initial Vocational Assessment report dated 15 July 2014, the author, Mr Bedggood, Occupational Rehabilitation Consultant indicated that he could not identify any employment options for Mr Klein based on his medical and physical restrictions which were compounded by his lack of educational skills and training. He noted that Mr Klein uses a walking stick (a wheelchair when at home), has a prosthetic right leg as a consequence of his right lower leg being amputated, had failed Year 10 on two occasions and did not complete his third attempt, had worked on a farm for 13 years after leaving school and then worked as a truck driver for 25 years. He also noted that Mr Klein has no computer skills and that his literacy and numeracy is poor.

1. Mr Bedggood also reported that Mr Dooley who assessed Mr Klein on 27 March 2014 diagnosed that the injury to his left knee probably involved soft tissue damage and an undisplaced fracture of the head of the fibula although much of his presentation relates to a psychological reaction to his injury. Mr Dooley opined that Mr Klein could not return to work as a truck driver but if his psychological condition was ignored he would have the physical capacity to work as a “ticket seller, car park attendant etc.”. Mr Bedggood reported that Dr Jager, Psychiatrist diagnosed in 2013 that Mr Klein suffered from a chronic adjustment disorder with depressed mood. It was noted that Mr Klein has Marcaine injections, uses morphine patches and takes morphine tablets and also takes Endep medication.

1. In July 2014, Mr Bedggood considered that Mr Klein would struggle to return to work without counselling or re-training because of his limited transferrable and educational skills and that he would need to reduce his medication intake. He noted that his barriers to employment included; his age, symptoms, psychiatric condition and his geographical location.

1. In his report dated 14 August 2014, Mr Bedggood identified suitable employment options as being; Yardman, Process Worker/Product Assembler and Weighbridge Operator based on his past experiences in the transport industry. The Re-Education Assessment report dated 14 August 2014 indicated that for each of the identified suitable employment options Mr Klein would need training in numeracy, literacy and computer skills which he could access by attending courses at Morwell Neighbourhood House. In his Labour Market report dated 8 April 2015, Mr Bedggood identified additional suitable employment options as being; general nursery hand, kitchen hand and delivery driver. He provided a generic description of the jobs and listed the varying tasks that may be included in each occupation by reference to an ANZSCO code and computer site In a Jobseeker Plan report dated 23 June 2015 he listed the actions required by Recovre and Mr Klein to find the identified suitable employments. In a further Jobseeker Plan report dated 20 August 2015 he reported that Mr Dooley in a report dated 17 April 2015 considered suitable employment options to be; Process Worker/Product Assembler and Kitchen Hand. He also noted that no suitable employment vacancies had been identified in the region.

1. In my opinion, the current Vocational Assessment reports would not assist a Medical Panel in forming an opinion (or a court in making a determination) on the issue of whether Mr Klein has a capacity to undertake the suggested suitable employments. The defendant has the evidentiary onus to adduce evidence sufficient to raise as a real possibility the ability of Mr Klein to undertake the occupations identified. As I indicated in Manthopoulos v Spencwill Nominees Pty Ltd [1], it is not appropriate for an Agent/Self Insurer to provide a general description of the suggested suitable employments or to embark on an exercise in what amounts to ‘cherry picking’ aspects of particular jobs for the purposes of creating fictional employment options. There must be a ‘degree of realism’ in the suggested suitable employments. Furthermore, when considering whether a worker has a capacity for ‘suitable employment’, the suggested ‘suitable employment” needs to be analysed by specific reference to the particular requirements of the job, the medical restrictions and personal characteristics of the worker in addition to the factors set out in the definition.

   [1] [2012] VMC 15. 26 April 2012.

1. Without evidence being adduced which provides details of the suggested suitable employment and the particular tasks that must be performed, a Medical Panel would not be able to make an informed opinion as to whether Mr Klein is capable of engaging in that occupation. A generic description of the occupations and the possible tasks that ‘may’ have to be performed in those jobs is not sufficient. The Vocational Assessment reports should provide a practical content to the suggested suitable employment so that a realistic assessment can be made as to Mr Klein’s ability to engage in those particular employments from a physical and psychological perspective and after considering the factors contained in the definition of suitable employment. For example, the suggested suitable employment as a Process Worker/Product Assembler would need to address; the weights of the components that he would have to lift, whether the task of locating, positioning and securing of components on workbenches are to be performed in a standing and/or sitting position, whether the tasks require repetitive lifting and bending and the hours of work. The suggested suitable employment as a Kitchen Hand would need to address; the type and weight of the equipment he would be required to use in order to clean kitchens, food preparation areas and sculleries, whether the tasks involve repetitive lifting and bending, whether the cleaning of cooking and general utensils can be performed in a sitting and/or standing position, the weights he would be required to lift when transferring, weighing and checking supplies and equipment, whether the packing of food and beverage trays involves repetitive lifting and bending and the hours of work.

1. My view is consistent with what was recently stated by the Court of Appeal in Richter v Ian Malcolm Driscoll & Ors[2], where the court said; “the definitions of ‘no current work capacity’ and ‘suitable employment’, as we construe those definitions, together with the inclusion in the definition of ‘medical question’ of paragraphs (aba), (abaa), (abb) and (abc), will require medical panel is to consider matters travelling beyond bare medical expertise… Not that it is decisive, questions of ‘no current work capacity’ and ‘suitable employment’ are not the exclusive preserve of medical panels…whether a worker has ‘no current work capacity’ requires consideration of the worker’s ability to work in employment having regard to the entirety of the workers personal circumstances - these including the injury-caused incapacity and as well other circumstances personal to the worker bearing upon his or her ability not simply to perform physical tasks required by a particular employment, but to work in that employment as a settled member of the workforce”.

   [2] [2016] VSCA 142 para 94 and 95

1. In relation to the Vocational Assessment reports provided to the Medical Panel in that matter, the court said: “We consider that—

(1)It is evident that the entirety of the material set out in the Assessment with respect to each job title was the product of computer searches. Thus, the job title itself was identified by a computer code number. The stated average wage was the product of search on another website. The asserted availability of jobs fitting the description was the product of searches on two other websites. What knowledge, if any, the ‘Employment Services Consultant’ who was the author of the Assessment had of work actually required and done in jobs fitting any of the four titles was not revealed by the Assessment.

(2)It seems clear that the duties described in the computer-generated response were not the description of what was required by any particular job, but were rather a generic description of activities one or more of which was or were required by different jobs falling within the job title. So much appears from the widely variant activities described, relevantly, in the case of the job title ’Light process/production worker’.

(3)What duties were required in the four jobs which the author of the Assessment described as ‘potentially suitable roles’ was not revealed by the Assessment.

This was a most unsatisfactory document upon which to found a conclusion as to the applicant’s physical capacity for work. But if a conclusion was to be reached that the applicant had an ability to engage in employment which required one or more of the duties described, the Panel, in our opinion, was required to give some practical content to the job involved, in order that its conclusion was capable of being examined. How, for example, could its conclusion that the applicant was physically able to perform one or more of the duties described in the Assessment be tested, to see whether it was irrational or illogical, without there being some description of the Panel’s understanding of the physical demands of the duties in the job description? Simply to describe the listed duties, and to accept and act upon the characterisation that the physical demands of those duties were light to medium, was a lesson in obscurity”.[3]

[3] Paras 125 & 126.

13. In my opinion, the reliance by the defendant on the documents sought to be sent to the Medical Panel would not assist the Medical Panel in forming its opinion unless the factual issues referred to are resolved. The most appropriate forum for those factual issues to be resolved is court. After the court determines these factual issues it will be in a better position than a Medical Panel to consider all matters relevant to the question of whether the identified occupations constitute ‘suitable employment’.

14 Accordingly, I find that the formation of an opinion by a Medical Panel on the questions as to whether Mr Klein has a current work capacity or has no current work capacity and what employment would or would not constitute suitable employment will depend substantially on the resolution of factual issues which are more appropriately determined by a court.

15 The matter is listed for hearing in the Latrobe Valley circuit commencing 10 October 2016. It is apparent from what I have said that at the hearing of this matter the defendant will need to adduce evidence on the issues I have raised in relation to the suggested suitable employment options.