Leon Potter v West Gippsland Healthcare

[2007] VMC 7

IN THE MAGISTRATES COURT OF VICTORIA

AT LA TROBE VALLEY

WORKCOVER

Case No. U02374799

Leon Potter	Plaintiff
v
West Gippsland Healthcare	Defendant

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MAGISTRATE:	S Garnett
WHERE HELD:	LaTrobe Valley
DATE OF HEARING:	24 October 2007
DATE OF DECISION:	24 October 2007
CASE MAY BE CITED AS:	Leon Potter v West Gippsland Healthcare
REASONS FOR DECISION

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Catchwords: S98C Claim – Inaccurate description of Injury in Claim Form – Accident

Compensation Act 1985

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr Carson
For the Defendant	Mr Batten
HIS HONOUR:

1.   The parties seek a preliminary ruling before the matter is referred to a Medical Panel for an opinion.

2.  Mr Potter lodged an S 98C claim form dated 11 March 2005 seeking an impairment benefit for an alleged “heart attack” occurring on 16 April 1998 whilst loading a truck and driving in the course of his employment with West Gippsland Healthcare.

3.   The claim form listed the body part affected as the “heart”.

4.  It is not in dispute that Mr Potter did not sustain a “heart attack”. He suffered an aortic aneurysm.

5.  In its Defence, the defendant denies that Mr Potter suffered an injury to the aorta, which arose out of or in the course of his employment. When lodged, relevant medical reports and Solicitor Inquiry Form did not accompany the claim form.

6.   The Agent as part of its investigation process pursuant to S 104B obtained a medical report dated 27 May 2005, from Mr Jacob Goldstein, cardio thoracic surgeon who treated Mr Potter in 1998. Mr Goldstein confirmed that Mr Potter did not sustain a “heart attack” and presumed his pain was due to the aortic aneurysm, which had not ruptured. The Agent rejected liability for the claim on 26 October 2005.

7.   The issue to be resolved is whether the inaccurate description of “injury” in the S 98C claim form is fatal which requires Mr Potter to lodge a new claim for processing in accordance with the Act.

8.  S 104B sets out the framework for processing S 98C claims including liability, impairment assessments, Medical Panel referrals and calculation and notification of entitlement. S 104B places a heavy onus on workers and their solicitors to ensure that all relevant injuries are included in the claim form and therefore assessed in accordance with S 91.

9.  The defendant contends that the description of “injury” in this case is fundamentally inaccurate and consequently Mr Potter must lodge a new claim form correctly describing the alleged injury, that being an aortic aneurysm and/or aortic valve damage so that alleged “injury” is processed in accordance with the Act.

10.The Agent was aware of the inaccurate description in June 2005 when it obtained the medical report from Mr Goldstein. The basis of the defendant’s denial of the claim is that the alleged “injury” did not arise out of or in the course of employment. I accept that an accurate description of an alleged injury is required in claim forms, whether they be for weekly payments, medical expenses or impairment benefits. This is necessary in order for Agents/Self-Insurers to make the appropriate liability decision and process them in accordance with the Act. However, any defect or inaccurate description contained therein must be considered in light of all the circumstances of the particular case and taking into account the fact that the Act is beneficial legislation.

11.In this case, the body part affected by the alleged injury was noted on the claim form as “heart”. The Agent was aware within 3 months of lodgement that they were dealing with an alleged injury to or affecting the “heart”. The facts of this case are fundamentally different to the facts in Kaya v Donna Rosa Foods P/l, a decision delivered by me on 5 October 2007. I did not allow Mr Kaya to amend his S 98C claim 13 months after lodgement in relation to arm/wrist injuries to include a psychiatric injury.

12.A claim under S 98C relates to permanent impairment of the whole person because of an injury to a body part. In this case, Mr Potter alleges a “heart attack” injury because of work performed in the course of his employment. The alleged body part affected is the heart as particularised in his claim form albeit the injury affecting that body part being inaccurately described as a “heart attack”.

13.The inaccurate description of injury in the present case when considered in all the circumstances does not prejudice the defendant as it was aware at the outset when determining its liability the “injury” and body part affected for which compensation was being claimed.

ORDERS:

14.Therefore, I will allow the matter to proceed with the injuries as recited in the