Ruacan v Nylex
[2011] VMC 126
•2 February 2011
| IN THE MAGISTRATES COURT OF VICTORIA |
AT MELBOURNE
Case No. A11570282
| Feridun Ruacan | Plaintiff |
| v | |
| Nylex Corporation | Defendant |
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MAGISTRATE: | Magistrate B Wright |
WHERE HELD: | MELBOURNE |
DATE OF HEARING: | |
DATE OF DECISION: | 2 February 2011 |
CASE MAY BE CITED AS: |
REASONS FOR DECISION
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Catchwords:
Accident Compensation – Impairment Benefit – Prior Settlements of Impairment Benefits and Damages Claims – Prior Medical Panel Opinions – Whether Worker Entitled to Bring Current Claim – Accident Compensation Act ss. 68(4), 104B (5A)-(5E), (11) and 134AB(36)(b)
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D Connell | Mitcham Whitelaw Pty Ltd |
| For the Defendant | Mr B McKenzie | Herbert Geer |
HIS HONOUR:
The plaintiff seeks compensation pursuant to s.98C in respect of alleged injuries to the “neck and cervical spine, both shoulders, forearms and hands and shock, anxiety and depression” according to the Statement of Claim. A s.98C claim form was made on or about 23 July 2008 (“the 2008 claim”) and was rejected in total by the defendant on 7 August 2008.
Of course, the court's jurisdiction is solely as to whether liability is established for the claimed injuries in the s.98C claim form, as opposed to any impairment (see s.104B(11)). The provisions in s.104B are prescriptive as to procedures involved in making a s.98C claim.
Essentially the defendant denied liability for the 2008 claim on the basis that the plaintiff had previously lodged, and finalised, a s.98C claim for the same employment injuries in April 2004 based on a s.98C claim form dated 18 November 2002, which was not received by the employer until 19 June 2003 (“the 2003 claim”). It relies on s.104B(5A) and following in that regard.
Further, the defendant says that the 2008 claim is precluded by the settlement of a common law claim on 1 September 2006 for $250,000 net against the same employer.
Finally, it says that the 2008 claim is also precluded by two medical panel Opinions dated 14 April 2004 and 25 January 2005, pursuant to s.68(4) of the Act.
Most of the background to the claim and those defences are set out in the defendant's Notice to Admit Facts and the plaintiff's Notice of Dispute. The plaintiff only disputes four of the 11 paragraphs in the Notice to Admit Facts. Even then, it does not dispute the facts as such in those paragraphs, but rather disputes the legal consequences of the facts raised therein.
POINTS FOR CONSIDERATION
The defendant sought, and the plaintiff did not contest, that I make a preliminary ruling on these defences, having regard to the substantial agreement between the parties. The parties also even agreed on the relevant legislation and case law.
Further, the defendant foreshadowed that if the above defences were ruled not to preclude the 2008 claim, then it would seek to refer relevant questions to a medical panel.
I indicated to the parties that after hearing argument spread over three part-days, that I would consider the defences as a preliminary point. The history and facts of the matter are well set out in the pleadings as well as the two Notices as to the admission and disputation of facts.
HISTORY
The plaintiff is now 57 years old and was born in Turkey. After arriving in Australia in July 1988, he found a job almost immediately with the defendant as a process worker/machine operator. He apparently suffered a specific injury on 25 March 2002.
He saw his GP and remained off work for the rest of that week. He resumed work on Tuesday 2 April 2002, probably on light duties and continued until 5 April 2002 when he ceased work and has not returned to work since.
On 1 April 2002 he lodged a claim form for weekly payments alleging that over a period of time and on 25 March 2002 he had suffered injury being “lower back pain, both shoulders and arms, foot, wrists". Liability was accepted and a claim number given. Weekly payments were made but later terminated by way of a 130 week termination notice.
A referral was made to a medical panel which delivered an Opinion dated
25 January 2005 and found the plaintiff had “no current work capacity” as a result of some of the referred “injuries”. It found the plaintiff continued to suffer from aggravation of lumbar disc degeneration with referred symptoms to lower extremities without radiculopathy, together with left acromio-clavicular arthropathy.
The defendant points out that the medical panel then stated that there was no medical condition of the right shoulder, the arms, wrists or feet, relevant to any injury. Apart from the above, I was not told any more about the plaintiff's weekly payments entitlements.
As I stated, the plaintiff made the 2003 claim by way of a claim form dated 18 November 2002. The defendant has noted receiving it on 19 June 2003 and the claims agent on 20 June 2003. I was not told when the claim form was actually served by the plaintiff. The claimed injuries were (to paraphrase) to the back, both legs, both shoulders, arms and hands, neck and constipation. The date of injuries “sustained” or when he first became “aware of” the condition was 25 March 2002 with the injury or condition occurring allegedly due to "lifting heavy bag [i.e. singular] weighing about 25 kilos in the course of employment". The claim form also gave details of the weekly payments claim number.
In a notice dated 27 August 2003 the defendant accepted liability for the back injury and stated it considered the injury to the legs as being referred pain from the back which would be included in the assessment of that injury. Otherwise, it did not accept liability for the claimed shoulders, arms, hands, neck, legs and constipation.
Pursuant to s.104B(2) and (3) at the time, the plaintiff could have accepted or disputed that statement of accepted injuries. However, in a letter dated 6 October 2003 the plaintiff's solicitors did not dispute that partial acceptance. That letter is important, as pursuant to s.104B(5B) to (5E) at the time all injuries arising out of the same event or circumstance, must be included in the one assessment. The worker is required to advise of any additional such injuries. If not, the injuries in the statement by the VWA are deemed to be the only injuries arising from the same event or circumstance.
After the plaintiff was dissatisfied with an independent medical examination, the matter was referred to a medical panel pursuant to s.104B. It delivered its Opinion on 14 April 2004, giving a 5 per cent whole person impairment resulting from the accepted back pain and bilateral referred leg injury. As a result of the impairment being below the threshold at the time, no s.98C compensation was paid.
The plaintiff then apparently turned his attention to a common law claim. A completed Form A in accordance with the Ministerial Directions of 20 December 2001 was completed and dated 6 December 2004. The injuries specified were to “the lower back and spine and right shoulder." The Statement of Claim forming part of the Form A specified essentially injuries to the low back, referred pain to both legs, as well as other apparently consequential problems to the stomach and psychological issues.
More importantly, the Statement of Claim alleged that the injuries occurred from 1999 as a result of the work process as well as on or about 25 March 2002 as a result of lifting a bag. That dual attribution of the injuries was expanded upon in the plaintiff's supporting affidavit sworn 6 December 2004.
Eventually, on 17 October 2005, the plaintiff completed a Particulars of Injuries form specifying the claimed “serious” injuries pursuant to s.134AB(37) as being “right shoulder and lumbar spine arising from the employment on or about 25 March 2002 and from injuries to the lumbar spine and low back and right shoulder and right arm” (emphasis added).
A serious injury certificate was apparently granted on 2 May 2006. Eventually a Release was entered in to by the parties for $250,000 net of payments on 1 September 2006. The Release was in respect of "the claim" defined in the application under s.134AB dated 6 September 2004 and included the proposed claim at common law in respect of each cause of action the Releasor sort to maintain.
Thus, it was clear from the Particulars of Injuries, if not from the Statement of Claim as well, that the plaintiff was seeking damages for the injuries on 25 March 2002 as well as over a period. Counsel for the plaintiff sought to tender a "proposed" Amended Statement of Claim in the name of the plaintiff which was undated, unsigned, not served and with the defendant's name blank. He also sought to tender an “Advice from Counsel” at that time. He said that these documents showed what the plaintiff was proposing to claim.
However, as the document was never served, apart from being undated, unsigned and not naming a defendant, I upheld the defendant's objection to these documents being filed as they were irrelevant to the issues between the parties before me.
Finally, the plaintiff served the 2008 claim. On 7 August 2008 the authorised agent rejected the claim substantially on the grounds of the previous 2003 claim as well as the medical panel Opinion dated 7 February 2005. The 2008 claim form claimed (to paraphrase) injuries to the neck, both shoulders, arms and hands. It gave details of the weekly payments claim number and stated the injury was sustained on, or first became aware to the plaintiff was, "over a period of time." The injuries were stated to be due to "repetitive lifting and carrying bags, cleaning machines, feeding hoppers."
The defendant points to the obvious overlap of claimed injuries in both s.98C claim forms, the common law settlement and the medical panel Opinions as grounding its assertion that the plaintiff is precluded from proceeding with the 2008 claim. I must now consider the three specific issues raised by the defendant that I have set out in the start of this decision.
Prior to considering the arguments and making my rulings, I will say that it is obvious that the plaintiff and/or his legal advisers have been very slipshod and haphazard in expressing the actual claimed bodily parts and causes of injuries to those bodily parts over the whole series of litigation involving the plaintiff's employment by the defendant. This has not made my task reaching this decision any easier.
THE 2003 s.98C CLAIM
The defendant says that pursuant to sub-ss.(5A) and (5AA) of s.104B that the present claim cannot be maintained. It says that the 2008 claim arises out of the "same event or circumstance." Counsel points to the earlier weekly payments claim form as showing that the plaintiff was relying on injuries sustained over a period of time, and specifically on 25 March 2002, for weekly payments and thus the plaintiff could have included both aspects in the 2003 claim. It says that by incorporating the weekly payments claim number in the claim form, the worker should be held to have included those injuries over a period of time anyway.
The defendant also tendered five medical reports from the plaintiff's GP Dr Woo, giving a lengthy history of treatment for at least the symptoms of those injuries, amongst others, over a number of years prior to 25 March 2002. Similar observations are included in other tendered medical reports from other doctors over the years.
Further, the defendant says that in the 2003 claim by claiming for the neck, both shoulders, arms and hands and not challenging the rejection of liability for those injuries, the plaintiff cannot now re-claim for those bodily parts pursuant to s.104B (5E).
The defendant submits, and the plaintiff does not dispute, that the clear intention of s.104B(5A) and following, is to ensure there is no “double dipping” by workers. Clearly, it is also to ensure that all aspects of a claimed injury are dealt with at the same time.
The defendant refers to two Magistrates' Court decisions in Moffatt v. Forsyth (Beder M, delivered 6 December 2005) as well as Kaya v. Donna Rosa Foods Pty Ltd, (Garnett M, delivered 5 October 2007) which really were decided on the facts of each case. They are different to the facts both between themselves and the facts of this case.
Similarly, a worker was precluded from making a further s.98C claim in a recent County Court decision of McVey & Smith Pty Ltd (Judge Parrish, delivered 21 January 2011). The Court of Appeal decision in Linfox v. Toohey [2004] VSCA 233 does not take this matter any further.
More importantly, the Court of Appeal dealt with these provisions in VWA v. Hartley [2010] VSCA 74. That case concerned a s.98C claim for a knee injury which was finalised on 2 September 2004. The plaintiff later had surgery to the knee and made a further s.98C claim in respect of further injuries arising from the surgery in February 2008.
The Court of Appeal said the worker was precluded from making the later s.98C claim pursuant to s.104B(5AA) as the injury and further injuries had "the same genesis".
The defendant does not dispute the relevance and authority of these cases. His counsel simply submits that the injuries in the 2008 claim do not arise out of the same event or circumstance, in that the 2003 claim was clearly in respect of nominated injuries occurring on 25 March 2002 and the 2008 claim for nominated injuries occurring "over a period of time."
In considering s.104B(5A) and following, it is a matter of not what the plaintiff could have claimed in the 2003 claim, it is a matter of what the plaintiff should have claimed. The cited four cases are different to the present case in that there was no distinction between the actual work causation aspect as opposed to the consequences of that work causation aspect in respect of the later s.98C claims in each case. The present case is different.
That is the real issue in the present case. Do the present claims arise out of the same event or circumstance?
The 2003 claim clearly referred to a single event of lifting a heavy bag [ i.e.singular] on 25 March 2002. The reference to the weekly payments claim is correct, as that incident was one part of the claim for weekly payments. Apart from the reference in Hartley I was not referred to any interpretation of "event or circumstance." It could be said that “event” probably refers to an incident. The use of the word “circumstance” in the alternative is a little more problematic.
It is trite to say that an injury under the Accident Compensation Act can occur in three separate ways. Firstly, there could be a single incident. Secondly, it could occur over a period of employment involving a series of incidents, or the period of employment as a whole. Thirdly, an injury can arise as set out in s.82(6) "by way of gradual process over time and due to the nature of employment." It seems to me that the use of the alternative “circumstance” would cover the two latter types of injuries.
In considering the 2008 claim with that in mind, I do not believe that it has the same “genesis” and thus does not arise out of the same event or circumstance. Clearly, the injury arising out of the incident on 25 March 2002 cannot be considered as part of the 2008 claim and should be excluded from any consideration of the injuries as alleged in the 2008 claim.
It may well have been different if in fact the worker had claimed injury or injuries over a period of time in the first claim form and then proceeded to claim an injury on a specific date in that employment in a later claim form.
I now move on to consider the defendant's argument as to the non-contest of disputed liability for the claimed injuries in the 2003 claim. In accepting that the 2003 claim was limited to the injuries arising on 25 March 2002, it is understandable why the disputed liability for the injuries apart from the back and referred leg pain was not taken further by the plaintiff at the time.
Looking at Dr Woo's medical reports, this was consistent with the injuries seen at or about 26 March 2002. That medical material is consistent with any injury to the other bodily parts, having a different “genesis”.
THE SETTLEMENT OF THE COMMON LAW CLAIM
Turning to the settlement of the common law claim, the pleading of the work causation aspect or aspects was different in the common law proceedings between the parties. It is clear that the plaintiff was claiming common law damages for injuries as a result of the work process “from 1999” and arising as well from a single incident on 25 March 2002. This is clear from the proposed Statement of Claim served as part of the serious injury claim with the Form A, as well as the Particulars of Injuries dated 17 October 2005 forming part of that claim as well.
Clearly the plaintiff is precluded from later making any s.98C claim for at least those bodily parts forming part of the finalised serious injury claim for damages pursuant to s.134AB(36)(b). Thus, the claim for any injury to the right shoulder and arm is unable to proceed as part of the 2008 claim. The plaintiff's argument that the VWA accepted liability for injury to arms and feet for weekly payments purposes later in 2003, is irrelevant for s.98C purposes.
The defendant submits that the other bodily parts in the 2008 claim could have formed part of the common law proceedings and this should be precluded in accordance with the principles of res judicata and estoppel set out in the Port of Melbourne Authority v. Anshun Pty Ltd (1981) 147 CLR 589. Both sets of proceedings considered in the Anshun decision concerned separate contribution and indemnity proceedings between the same defendants pursuant to the Wrongs Act arising out of the one claim by a plaintiff.
The present case involves quite separate entitlements to statutory benefits and common law proceedings. Quite apart from the nature of the benefits claimed, there were also considerations of negligence to consider. It is understandable that different bodily parts may form part of a claim for damages as opposed to statutory benefits. Some may be due to negligence, some may not. Thus, in all the circumstances I do not find that the principles set out in Anshun are relevant for the present purposes.
THE TWO MEDICAL PANEL OPINIONS
Finally I must now consider the question of the two medical panel Opinions. The medical panel Opinion dated 14 April 2004 in isolation is not relevant for present purposes as it was limited to the back and referred leg pain injuries. Those bodily parts do not form part of the present proceedings. The second medical panel opinion dated 25 January 2005, which was obtained for purposes of the weekly payments entitlement, is not really relevant in the consideration of the preliminary points of defence raised at this stage.
The Opinion states that as at 25 January 2005 "there is now no medical condition of the right shoulder, the arms, wrists or feet relevant to any injury." Of course, both parties, as well as this court, and even any later medical panel, is bound by this Opinion at the relevant time (see Ajinvan Pty Ltd v. Fry (2001) 3 VR 644.).
However, as I pointed out at the start of this decision, this court's role is limited as to whether liability is established for claimed injuries as opposed to any impairment arising therefrom (see s.104B(11)). Whether or not the plaintiff had any continuing medical condition about three years after ceasing employment is not conclusive as to whether he sustained any work related injury in the first place. Any court or medical panel in considering any questions of impairment of at least the left arm and both wrists as affecting the hands, must take into account the medical panel Opinion of 25 January 2005 as being binding upon it in its consideration.
That of course is a different matter to the issues that I am considering at present, i.e. whether the plaintiff is precluded at all from bringing the 2008 claim.
CONCLUSION
The plaintiff is limited to seeking the “establishment of liability” for injuries to the bodily parts set out in the 2008 claim form, as opposed to any injuries pleaded in the Statement of Claim. However, he is precluded from claiming the “bodily parts” included as part of the common law settlement.
That means the present proceedings are therefore limited to "neck, right hand, left shoulder, arm and hand". In considering liability for these alleged injuries "over a period of time" of employment, any contribution arising out of the episode on 25 March 2002 should be excluded.
As the defence in these proceedings generally denies liability to pay s.98C benefits for most if not all of those remaining bodily parts as set out in the 2008 claim, I will hear from the parties as to the future disposition of these proceedings.
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