Mosawi v Hollywood Plastics Melbourne (WorkCover)

[2009] VMC 31

IN THE MAGISTRATES’ COURT OF VICTORIA
AT MELBOURNE

WORKCOVER DIVISION

Y00169588

B E T W E E N

SAYED MOSAWI

Plaintiff

-and –

HOLLYWOOD PLASTICS MELBOURNE P/L

Defendant

MAGISTRATE:   B.R. Wright


WHERE HEARD:   Melbourne


DATE OF DECISION:   02 July 2009

MEDIUM NEUTRAL CITATION:                 [2009] VMC031

APPEARANCES

Ms K Galpin (instructed by Zaparas Lawyers) for the Plaintiff

Mr C Miles (instructed by Wisewoulds) for the Defendant

REASONS FOR DECISIONS

Accident compensation – Rejection of claim – Jurisdictional issues as to notification of injury and making of claim – Determination of jurisdictional issues prior to medical panel referral – Accident Compensation Act ss. 45,102(1),103(5), 103(7)

HIS HONOUR

The plaintiff has issued these proceedings now seeking the payment of reasonable medical and like expenses for an alleged injury to the back and referred left leg pain arising out of his employment with the defendant as a machine operator or (according to the defendant) as a process worker.

The Statement of Claim alleged the injury occurred "throughout the course of the employment and more particularly on 23 December 2004".

However, in her opening counsel for the plaintiff said that the plaintiff initially had pain to the back for two weeks prior to 5 April 2002 when he was referred for a CT scan on his back.

The defendant has denied any injury as claimed and more particularly pleaded special jurisdictional defences pursuant to s.102 sub-s.(1) and s.103 (5) and (7)(d) on the basis that there was no report of any injury or claim made for same until the claim form dated 24 July 2008. The plaintiff had last worked for the defendant up to the Christmas holiday break in December 2004.

When the case opened counsel for the plaintiff stated that her client wished to refer questions on diagnosis, causation, and reasonableness of treatment to a medical panel and shortly after handed up the foreshadowed questions.

When asked for the defendant's views on the application, its counsel raised the above jurisdictional issues and objected to the referral.  After a further inquiry by me no submission was made as any abuse of process in the plaintiff's application for referral. 

In all the circumstances I do not believe that there is any abuse of process in the plaintiff's application pursuant to s.45 (1)(b) of the Act. Thus, in due course the matter should be referred to the medical panel subject to the jurisdictional issues as set out above.

Despite plaintiff's counsel's submissions I do not see how the questions can be referred to a medical panel prior to the jurisdictional issues being decided.  If this was done the court may be placed in a difficult position.

If the medical panel found in favour of the plaintiff, this court and the parties may then be bound pursuant to s.68(4) of the Act in circumstances where there may not be any jurisdictional entitlement otherwise.

I respectfully agree with the decision of Benedos v  Casa Vini Restaurant (County Court, per Judge G D Lewis, unreported, delivered 16 October 2003) and the cases referred to therein, that the jurisdictional issues should be determined before any medical panel referral. Also, that medical panel referral should only be made if those jurisdictional issues are determined in favour of the plaintiff.

However, in the determination of such jurisdictional issues a court needs to be careful to only take matters so far as to determine that aspect.         I refer to the decision of Mr Justice Hedigan in HIH v. Greeves [2000] VSC 31 at para. 21.

Obviously I should not, and will not, for example make any finding as to whether the plaintiff had in fact suffered any injury as that matter is to be referred to the medical panel depending on any ruling on the jurisdictional aspects. However, I still need to consider some associated aspects as to the alleged injury in determining these jurisdictional issues.   

The plaintiff is a farsi (i.e. persian) speaking man who was born in and lived in Afghanistan.  He has a very limited ability in English.  He was educated to grade 5 or Grade 6 in Afghanistan and later did farm, shop and taxi work in Afghanistan.

He arrived without his family in the Australian waters by boat in about late 1999 and after a period appears to have been granted entry to Australia, presumably as a refugee.  He now carries an Australian passport according to his evidence.  His family came out to Australia at some time later. 

It appears common that he stated employment with the defendant in about February 2000.  He worked until August 2002 and then went to Pakistan to see his family for about six months.  On his return to Australia he worked for about one week in another factory and shortly thereafter recommenced similar employment with the defendant to 23 December 2004 when he ceased all employment with the defendant.  In fact he did not return to work with the defendant after Christmas 2004 and has not worked since.  Although casual he worked almost regularly five days per week on night shift. 

He and the defendant's representative said that his worked involved removal of extruded plastic products from various types of machines.  He may have to trim, flame the edges and drill some of the parts, but otherwise placed the larger parts on to a pallet or smaller pieces into boxes.

I do not need to go into any more detail of the work process for the reasons I have set out above.  More particularly, after some cross examination he admitted that about 5 April 2002, or the period shortly before, he appreciated the work was causing him back pain.  He did not tell anyone at work.  He went to his doctor, a
Dr Pereira, on 5 April 2002. 

Again after some cross-examination, he said that he told the doctor of the work involvement with his back and leg pain. However, his GP who treated him for his back and leg pain on several occasions between May 2001 and February 2007 said in a report that he was never given any history of any connection between his employment and back and leg pain by the plaintiff.  Mr Mosawi said that he communicated to Dr Pereira in English.

On 5 April 2002 he was referred by his GP for a CT scan, a report of which was tendered in evidence.  Again, there is nothing in the CT report referring to any work involvement. 

He lost no time off work but was given Vioxx medication.  I was not told as to who, if anyone, paid for the CT scan and medication.  Certainly, it was not the employer or the VWA at the time.

As stated he kept working on the same basis with the defendant until going to Pakistan in August 2002. A few weeks after his return he started work again for the defendant in about early 2003 and continued until 23 December 2004 at the same job as before.  He lost no time off work because of back injury. 

He did not re-attend Dr Pereira between April 2002 and January 2005.  He sought no light work at any time and did not mention any back problem or disability to the defendant while employed there.

He said his back was too sore over the Christmas break at the end of 2004 to return to work.  He said that he told his son, who was then working for the defendant as well, to tell his supervisor he was not able to go back to work because of his back and leg pain.  According to Mr Wills, the general manager of the defendant, no complaint was made as to back and leg pain preventing any return to work to the employer, including to the supervisor. 

The supervisor, who is still employed by the defendant, was not called and neither was the plaintiff's son.  Thus I am really unable to say whether such a reason was given by anybody at any time.  However, I accept the plaintiff does not dispute that formal notice of injury was not given then or prior to then.

The plaintiff said that he changed doctors to a farsi-speaking doctor in 2005 whose records were not tendered, though he continued to see Dr Pereira until February 2007.

After that change of doctor he made a claim on a disability aspect of his superannuation policy with the defendant, a disability support pension as well as a disability parking sticker. 

He did not seek legal advice until this was suggested by a friend some time in 2008.  His solicitor lodged a claim for him in July 2008.

Although the claim form sought weekly payments and reasonable medical and like expenses, these proceedings have only ever sought reasonable medical and like expenses because, I was told, "there was a difficulty obtaining a relevant medical certificate".  I take that matter no further.

Mr Mosawi said he did not know anything about workers compensation until he was referred to a solicitor in 2008.  This was the reason why he made no workers compensation claim or report prior to 2008. 

As stated, there is nothing to the contrary in
Dr Pereira's records or any other material put before me or in cross-examination of him.

Mr Wills, the general manager of the defendant said that there are workers compensation information posters around the walls of the work canteen advising workers compensation procedures and requirements under the Act.  Mr Mosawi said that he saw posters there, but could not read them.  He had no one interpret them for him although there were other Afghani fellow workers at the defendant's premises. 

Importantly, Mr Wills gave no evidence of any induction procedure or relevant material to the plaintiff as to workers compensation requirements, policies or obligations either before or while the plaintiff was employed at the defendant's premises.  He said that the night supervisor "would have" shown him (the plaintiff) his duties.  He said that any injury “should” have been reported to the supervisor who “would” have put the report in the injury book.

Again, the supervisor who is still employed there was not called to give evidence as to any explanation of any workers compensation procedures, express or implied to the plaintiff. 

I accept that there was no injury report by the plaintiff in the injury book.  Counsel for the defendant advanced no reason why the plaintiff would claim on the employer's superannuation disability policy, the disability superannuation pension and a disability parking sticker arising out of his back and leg complaint and not claim workers compensation at the same time.  On balance, I accept the plaintiff's evidence that at the time he knew nothing of workers compensation, let alone the requirements, obligations and procedures relevant to any claim or report.        This was his first job in Australia after coming from Afghanistan.

The first question for me to determine is whether the plaintiff's claim comes under the exceptions or qualifications to ss.102, and 103 (5) and (7), as there is no dispute as to any report or claim of injury prior to 2008.

As to s.102 the only issues advanced by either party referred to s.102(6)(b) (i.e. unfair prejudice to the defendant) and s.102 (7)(i) (i.e. ignorance or mistake on behalf of the plaintiff).  I accept that there has been some prejudice to the employer in the claim and report not being made until 2008. 

The defendant has been deprived of the chance to have the plaintiff examined by its doctor, contemporaneous with the time of the alleged injury. However, I query whether there has been “unfair” prejudice, whatever that may mean in the context of prejudice.

This is not a limited claim where the plaintiff now claims full recovery.  The defendant has available to it the CT scan taken on 5 April 2002 as well as two later CT scans in June 2006 and June 2007.  The plaintiff claims continuing injury and need for treatment.  Dr Pereira's findings, examinations and history records are available and the relevant supervisor is still employed by the defendant. There was no evidence as to any significant change to the premises, machinery or work process.

In all the circumstances I do not believe that there has been unfair prejudice to the defendant.

Even if I am wrong in this aspect, the s.102 time limit should be waived or extended, as the failure to give such notice was due to ignorance or mistake by the plaintiff.  As stated, there is no evidence of any formal, or even informal, induction process as to workers compensation procedures relevant to the plaintiff on his commencement with the defendant or thereafter.

The high point of the defendant's evidence in this regard was the placing of posters around the work canteen which were not in the plaintiff's language. In fact, there was no evidence that they were in any other language apart from English despite the number of Afghani workers employed there.

I accept the plaintiff's evidence that he did not read or have the contents of those posters read to him and did not otherwise know of his rights or obligations pursuant to the Accident Compensation Act, WorkCover or even the existence of workers compensation itself.

If he had such knowledge beforehand it would be more than reasonable to expect that he would have made such a claim at or about the same time as that claim on his employee superannuation disability claim in 2006 at the very least.

For similar reasons as to the ignorance or mistake in s.102, I deem the claim to have been made pursuant to s.103(5) on the basis that he could not reasonably have made the claim while employed with the defendant.

If he had no knowledge of the existence of any workers compensation rights, entitlements or procedures let alone his obligation to make a claim while employed, I do not believe that I should make a finding that he reasonably could have made the claim whilst so employed. 

Again, such a reason or reasons constitute a “special” excuse pursuant to s.103 (8) for those expenses which have been sustained more than six months prior to the claim being made.

Neither counsel was able to point to any real authority on the phrases “unfair prejudice”, “mistake or ignorance”, “not reasonably had made the claim” or “special excuse” in the circumstances of this case.

Both counsel submit, and I agree, that each case really must be decided on its own facts, which I have done as set out above.

As the jurisdictional issues have now been determined against the defendant, I seek submissions as to the future conduct of these proceedings.

- - -