Majer v Victorian WorkCover Authority (Ruling)
[2024] VCC 1862
•27 November 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-24-01976
| MICHAEL MAJER | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE PILLAY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 October 2024 | |
DATE OF RULING: | 27 November 2024 | |
CASE MAY BE CITED AS: | Majer v Victorian WorkCover Authority (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1862 | |
REASONS FOR RULING
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Subject:SERIOUS INJURY APPLICATION
Catchwords: Workplace injury – Left and right knee dysfunction – Left knee injury subject of previous application - Application for a serious injury determination for left and right knee injury – Impairment benefit claim – section 134AB(21)
Legislation Cited: Accident Compensation Act 1985
Cases Cited:Primary Health Care Limited v Giakalis [2013] 38 VR 165; Museums Victoria v Susnjara [2021] VSCA 166; Dostal v Lynch Group (Ruling) [2019] VCC 1247; Eastick v Oscar Furniture Pty Ltd [2006] VCC 1060; Barnard v Automation & Control Electrics Pty Ltd [2008] VCC 712; SZTAL v Minister of Immigration and Border Protection (2017) 262 CLR 362
Ruling:Application not granted
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C Harrison KC with Ms H Donmez | Verduci Lawyers |
| For the Defendant | Mr J Valiotis | TG Legal |
HIS HONOUR:
1The parties in this case are in dispute as to whether or not the plaintiff can proceed with his application for a serious injury determination in respect of his left knee injury. To explain the issue before the Court it is necessary to set out some of the chronology in brief detail.
2The plaintiff was born in August 1956 in Croatia. He came to Australia in 1971 at about the age of 15. He left school after a few years in about 1974 and then began a series of labouring positions. I do not need to detail these, save to note that in 1991 he commenced employment with Graham Campbell Ferrum International Pty Ltd (“the defendant”). He worked there as a furnace man, truck driver, dresser and painter.
3On 26 August 1997 he suffered injury to the right knee with the defendant while on sandblasting duties. The plaintiff had surgery to his medial meniscus on the right side, and 80 per cent of it was excised.[1]
[1]Plaintiff’s Court Book (“PCB”) 136 and 139
4The plaintiff accepts that this injury occurred on a specific occasion, and by virtue of s135AC of the Accident Compensation Act 1985 (“the Act”) he cannot make a serious injury application in this regard. However, the plaintiff contends that he is entitled to bring a serious injury application in respect of his right knee injuries arising throughout the course of his employment.
5In late 1999 the plaintiff was noted to have problems with the left knee and was considered a candidate for left knee arthroscopy. He was placed onto a public waiting list in this regard. He continued working with the defendant from about February 2001.[2]
[2]PCB 43
6On 19 October 2012 the plaintiff suffered specific injury to his left knee when he stepped on a pallet and it broke.[3] He had a course of physiotherapy in respect of the left knee, and investigations of both the left knee and the right knee. In early 2013 the defendant closed, and the plaintiff has not been able to work since this time.
[3]PCB 21, 192 and 201
7In January 2015 a Medical Panel opinion was returned which determined that the plaintiff had sustained a work related bilateral temporary aggravation of both knees related to his employment with the defendant which had resolved.
8Returning to the chronology, on 8 June 2017 the plaintiff had a left knee replacement.[4]
[4]PCB 206
9The critical issues in this matter then arose. On 2 March 2018 the plaintiff lodged a serious injury application in respect of his left knee. The application was rejected by the Authority. It is relevant to note that in the Form A application the plaintiff had attached a proposed statement of claim which pleaded as follows:
“3(a)The Plaintiff sustained injury during the course of his employment and in particular on the 19th October 2012 when he slipped on a pallet which was unsafe and broke, twisting his left knee and lost balance and felt a severe pain to his left knee.
3(b) The Plaintiff sustained injuries to both knees as a result of stresses and strains of work during the whole period of his employment with the defendant up to March 2013 when he was required to work on his knees and/or in a knee bent position performing stressful activity, in particular, using a grinder for extended periods of time without any adequate breaks and without any knee protection.”[5]
[5]Defendant’s Court Book (“DCB”) 121
10When it came to describing the particulars of injury, the following were noted:
“Injury to the left knee;
Aggravation and acceleration of degenerative changes;
Shock;
Pain and suffering.”[6]
[6]DCB 124
11This focus on the left knee reflected the Form A application which specified the left knee only.[7]
[7]DCB 107
12In consequence of the rejection of the plaintiff’s serious injury application in respect of the left knee, the plaintiff filed an originating motion on 27 June 2018.[8] For unknown reasons, on 19 July 2018 a notice of discontinuance was filed by the plaintiff’s lawyers.[9]
[8]DCB 126
[9]Ibid
13On 9 May 2019 the plaintiff had a right knee replacement.[10]
[10]PCB 116
14On 5 May 2023 a second Medical Panel Opinion determined that the plaintiff’s injuries to his right and left knees were caused by work.[11]
[11]PCB 110
15On 23 October 2023 the plaintiff filed a Form A application seeking determination that he had sustained serious injuries to the left and right knees.[12]
[12]PCB 13
16That application was rejected, and the plaintiff issued proceedings seeking a serious injury determination for both the left and right knees. That is the application before the Court presently.
The issue
17Section 134AB(21) of the Act states:
“(21)If a worker makes an application under subsection (4) in respect of an injury the worker must not make a further application under that subsection in respect of that injury.”
18Here, the defendant submits that the plaintiff cannot bring a claim in respect of the left knee injury as he had made a previous application in 2018 which was rejected by the Authority, issued in Court and then discontinued. The Authority submits that the words in ss(21) “makes an application” have a plain meaning and refer to the submission of a Form A application for a serious injury determination. That plain reading, they submit, bars the plaintiff from this further application made in 2023 in respect of the left knee.
19The plaintiff submits, in contrast, that the words “makes an application” essentially mean that an application is only made when it is “heard and determined”. On that submission, because the Court had not made a determination in respect of the 2018 originating motion, the application was not made and he was free to make the application which is before the Court.
20Short oral submissions were made when the matter came before the Court. The matter was then adjourned for the parties to file written submissions.
A change of course
21Upon submissions being filed by the plaintiff a significant change of course had occurred. The plaintiff now submitted that the 2018 proceeding had never been properly discontinued and remained on foot. As such, he submitted nothing turned on the application in this proceeding about the construction of s. 134AB(21) and whether it was properly brought in respect of the left knee.
22Somewhat surprised by this change of course the defendant simply submitted that nothing had in fact been done with the 2018 proceeding – it had not been served with that proceeding and no step had been taken in respect of it for some 6 years. As a result the only matter for decision was whether the Plaintiff could proceed with this matter in respect of the left knee.
23I agree with the defendant’s submission. The only matter before the Court is the present proceeding in which the Court is being asked to determine whether the Plaintiff can proceed with his left knee application for a serious injury determination. That turns on the construction of s. 134AB(21).
24It now falls to determine the competing submissions.
25In summary, there are 4 reasons why I accept the defendant’s submissions as to their interpretation of s. 134AB(21):
A. The scheme of the Act, and the location of s. 134AB (the serious injury process) suggests strongly there is only one application matched to an injury;
B. The history of s. 134AB(21) shows that an application does not have to be determined by a Court before the prohibition in the section on making a further application takes effect;
C. The text of the Act is plain; and
D. The plaintiff’s interpretation leads to unworkable results for the scheme of determining common law rights set out in the Act.
Analysis
26Starting with the Act. It is the text of the Act that must be interpreted, with regard to its context and purpose.[13] That context and purpose is important in this case because s. 134AB is located in a particular section of the Act, which reflects the underlying process at play in the Act. This can be seen from the Index of the Act. This begins with the scope of the Act and how workers are drawn into the scheme: the occurrence of injury arising out of or in the course of employment. The process of lodging a claim and beginning entitlements to medical and like expenses and weekly payments follows. It is when that process is initiated, and after the elapse of time, that the process then moves to impairment benefits and the potential application for a serious injury determination. The machinery for that application is set out and then the process which governs the common law component of the worker’s action in s. 134AB. I set that out briefly because the location of the section is important in determining the construction point before the Court as it gives context to the interpretation of s. 134AB(21). Each stage has some effect on the other, for example, whether the impairment determination pursuant to the AMA Guides under s. 98C results in a more than 30% whole person impairment, maybe determinative of a worker’s serious injury application. I set this out to make the simple point that the section in issue here cannot be interpreted in a vacuum.
[13]SZTAL v Minister of Immigration and Border Protection (2017) 262 CLR 362, 368 at [14]
27Turning to the wording of s. 134AB(21) of the Act as amended in 2010 which applies to the Plaintiff’s application states:
“(21)If a worker makes an application under subsection (4) in respect of an injury the worker must not make a further application under that subsection in respect of that injury.”
28This was not the original wording of the section. That wording was:
“If a worker makes an application for leave to bring proceedings in accordance with subsection 134AB(16(b) and fails to satisfy a court that the injury is a serious injury, the worker is not entitled to make a further application for leave to bring proceedings in respect of the same claimed cause of action” (my emphasis).
29That original wording seemed to impose a 2 stage test as to whether a worker could bring a second application seeking a serious injury determination. That was (1) to make an application and (2) failing to satisfy a Court that the claimed injury warranted such a determination. Arguably if there was no Court determination, an application could be withdrawn and a further application made.
30However, squarely the legislature removed that 2 stage approach by the 2010 amendment which was operative at the time of the plaintiff’s application. The Court of Appeal observed as much in Susnjara when it stated “…it seems unlikely that the Legislature in passing the 2010 Act intended to narrow the scope of the prohibition in subs-s (21).”[14]
[14]Museums Victoria v Susnjara [2021] VSCA 166 at [78]
31That being the case attention is focused on whether the worker has made an application in accordance with subsection 134AB(4) in respect of an injury. That section permits applications for serious injury determinations to be made only after a worker has passed through the process of making an impairment benefit claim in accordance with s. 98C and s. 104B. It is clear that the process is designed to ensure that there is a match between the claimed injury at these stages with the relevant injury the subject of the serious injury application. This is because the impairment assessment is of the body part that is nominated by the plaintiff in his application and subsequently assessed by the medical assessor and potentially the Medical Panel. It is relevant to note that the Medical Panel will convene a panel with expertise to assess the claimed injury. The identification of injury is thus important and critical to a proper assessment of the claimed injury because for example only appropriately qualified practitioners can assess certain injuries. That synchronicity between these earlier provisions of the Act and within s. 134AB itself suggests strongly that the “application” referred to in s. 134AB(21), is in relation to the injury the subject to the earlier process: that is, there is one claimed injury (or group of injuries) and one application.
32The amendment to the legislation in 2010 makes clear that the focus must be on the making of an application for a serious injury determination and not on whether there had been a determination by a Court of that application. This supports the submission of the defendant that there is only one serious injury application in respect of the relevant injury. It makes clear that the plaintiff’s proposed construction represents an impermissible straining of the language. It cannot be accepted.
33Here there is no doubt that the plaintiff made an application in respect of his left knee injury, said to be sustained throughout the course of his employment. Having made the application on 2 March 2018 it was rejected by letter dated 26 June 2018.[15] There is no doubt that this letter constituted a denial of the plaintiff’s application in accordance with s. 134AB(16). Any submission to the contrary must be rejected: the letter is plain and in the usual form of denial used in these matters.
[15]Attached to the Defendant’s submissions of 11 November 2024
34The Act makes it clear that once a worker makes an application “…in respect of an injury the worker must not make a further application under that subsection (134AB(4)) in respect of that injury.” The words of the section must be interpreted consistently to ensure that there is a harmonious reading of the Act in total.
35In Susnjara the Court of Appeal stated, in construing s. 134AB:
“The construction arrived at in Georgeopoulos followed this Court’s detailed consideration of the other sections of the Act and sub-sections of s134AB to which we have already referred. It is a construction which gives the Act and in particular s. 134AB a harmonious operation. Additionally, it is a construction which makes workable the various sub-sections that deal with common law damages claims once a gateway has been accessed by a worker.” [16]
[16]Susnjara at [75]
36The plaintiff’s interpretation would make the operation of s. 134AB unworkable. To take one example: the statutory offer and counter offer process would be completely subverted if a plaintiff could withdraw his/her application after the statutory offer and start again knowing full well what the defendant would offer.
37The plaintiff relied on the case of Giakalis[17] at paragraphs [11] and [45] and the cases in this Court of Dostal,[18] Eastick[19] and Barnard.[20] These cases do not bear on the construction task at hand. They do not need to be discussed further.
[17]Primary Health Care Limited v Giakalis [2013] 38 VR 165
[18]Dostal v Lynch Group (Ruling) [2019] VCC 1247
[19]Eastick v Oscar Furniture Pty Ltd [2006] VCC 1060
[20]Barnard v Automation & Control Electrics Pty Ltd [2008] VCC 712
38Overall and bearing in mind that the Act provides a specified process for the determination of workers’ entitlements, I consider that this means that there can only be one application in respect of an injury.
39Applying that interpretation to the facts of this case leads to an acceptance of the defendant’s submission. As the plaintiff has made an application in March 2018 in respect of his left knee injury he cannot make the further application which is the basis of the matter before the Court. His current claim, placing reliance on the left knee injury, cannot proceed as part of the extant serious injury application before the Court.
40To the extent that the plaintiff raised a new argument in his submissions that the 2018 application was not formally discontinued and he can simply revive it, this application is not before the Court and cannot be determined. It is to be recorded that the plaintiff never served the proceedings and no appearance was entered by the defendant. The Notice of Discontinuance was filed but never served on the defendant. There is no application to revive that proceeding and no notice of such application has been given. There is no contradictor to any proposed application to revive the 2018 proceeding.
41The parties are to provide minutes of proposed consent orders to give effect to the above ruling. Otherwise, the matter can be called on for a directions hearing to deal with the right knee injury.
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