Stankovic v Arc Plastering - [2023] VMC 2

IN THE MAGISTRATES’ COURT OF VICTORIA
AT MELBOURNE
WORKCOVER DIVISION

Case No. N10900994

NEGOSLAV STANKOVIC	Plaintiff
v
ARC PLASTERING & CO PTY LTD	Defendant

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MAGISTRATE:	M A HOARE
WHERE HELD:	Melbourne
DATE OF HEARING:	07 – 13 December 2022
DATE OF DECISION:	16 February 2023
CASE MAY BE CITED AS:	Stankovic v Arc Plastering
MEDIUM NEUTRAL CITATION:	[2023] VMC 2

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WORKERS COMPENSATION – Weekly payments - Right middle finger laceration injury – Employer paid for surgery and wages for time off work – Return to work performing full-time hours - Capacity for pre-injury employment – Lodgement of WorkCover claim after termination of employment - Liability for weekly payments of compensation – Commencement of first entitlement period – Whether ‘a weekly payment has been paid or is payable to the worker’ - Workplace Injury Rehabilitation and Compensation Act 2013, ss 152, 160, 161.

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APPEARANCES:	COUNSEL	SOLICITORS
For the Plaintiff	Ms S. Bailey	Zaparas Lawyers
For the Defendant	Mr B. McKenzie	IDP Lawyers

HER HONOUR:

Introduction and Overview

On 12 June 2019, the plaintiff, Mr Stankovic, lacerated his right middle finger using a circular saw in the course of his employment as a carpenter/plasterer with the defendant, Arc Plastering & Co Pty Ltd (Arc) (the incident).

Arc admitted that: the incident occurred; it employed Mr Stankovic at the time; and that he was acting in the course and scope of his employment.

Mr Stankovic was administered first aid on site and taken by his supervisor to the Epworth Hospital. The following day, Mr Stankovic had a meeting about the incident with an Arc foreman. That day, Arc wrote to the Epworth advising of responsibility for treatment expenses (including hand surgery performed on 14 June 2019). Following surgery, Mr Stankovic remained off work for a period during which time Arc paid him his normal wages.

In about mid-August 2019, Mr Stankovic returned to full-time hours for Arc and did some overtime intermittently. That continued until 1 April 2021 when he was laid off. The precise reason for this was disputed, but it was at a time when construction sites had COVID restrictions in place.

On 1 July 2021, Mr Stankovic made a WorkCover claim regarding the incident seeking weekly payments and medical and like expenses under the Workplace Injury Rehabilitation and Compensation Act 2013 (the Act).

By notice dated 3 September 2021, the Agent accepted liability for the right middle finger and a secondary psychological injury for weekly payments from the date of incident to 30 August 2021 only and liability for medical and like expenses (the notice). [1]
[1]The notice did not terminate the entitlement to medical and like expenses for the accepted right middle finger injury and secondary psychological injury.

However, the Agent rejected liability for other claimed right upper limb injuries from the incident (right ring finger, right wrist and right elbow). On the morning of the final day of hearing, Mr Stankovic abandoned his claim for injuries other than the accepted right middle finger injury and secondary psychological injury.

In essence, the factual issue for my determination was whether, in the period of his return to work up until his termination, Mr Stankovic had capacity for, and indeed was performing, pre-injury duties (as Arc alleged) or whether he was performing modified duties other than his pre-injury duties (as Mr Stankovic claimed).

I also needed to determine, in the event of a finding favourable to the plaintiff, when the first entitlement period for weekly payments commenced as this was an issue in dispute.

10. Mr Stankovic gave evidence and called a former Arc co-worker, Mr Ignjic. His GP, Dr Calic, was cross-examined. Arc called eight lay-witnesses.

11. In the period of his return to work, Mr Stankovic worked for Arc under different foremen at the various sites: 477 Collins Street, Melbourne (477 Collins); Rod Laver Arena (Rod Laver); the Monash University Technology, Education and Design building (the TED building); and the Karingal Hub Shopping Centre, Frankston (Karingal).

12. It was disputed as to when Mr Stankovic’s employment with Arc began. Arc contended it was on the date of incident and that, before that, he was working for a sub-contractor of Arc, Koscon Constructions (Koscon). However, Mr Stankovic claimed he was an employee of Arc (as stated on his claim form) from March 2019.

13. Employment with Arc as at the date of the incident was, as I have said, admitted. The issue was relevant only to the credibility of Arc’s case generally as to Mr Stankovic’s employment and duties post the incident.

Mr Stankovic’s evidence

14. Mr Stankovic gave evidence via a Serbian interpreter. He has very limited spoken or written English. He is now 61 years of age. In 1997, he emigrated to Australia as a refugee of the Bosnian war.

15. There were some pre-existing psychological issues relating to traumas of war. Also, there was a pre-existing, unrelated difficulty affecting use of some fingers of his left hand because of a Dupuytren’s contracture condition. He is on a public hospital surgery waiting list for this condition.

16. Mr Stankovic, who is right-handed, had worked all his life in unskilled manual employment including general carpentry. He had no formal trade qualifications.

17. In March 2019, Mr Stankovic began working for Arc as a full-time unskilled carpenter/plasterer. Mr Stankovic disagreed that in the period between March 2019 and the incident, he was actually working for Koscon on jobs for Arc. During this period, he gave basic invoices of his hours to Mr Bojan Kostic (himself an employee foreman with Arc) and was paid wages without pay-slips. From the time of the incident, he began receiving formal Arc pay-slips by email.

18. As for the nature of his pre-injury duties, the work related to installation of ceilings and internal walls. Performance of his duties required utilising a range of power tools including: a drop-saw, a cordless drill and a shoot-gun. There was also regular use of hand tools such as hammers and tin-snips. There was some lifting of materials such as plaster-sheets. Ceilings were accessed via a scissor lift.

19. After the incident happened, he was given first aid treatment and driven to hospital by his supervisor, Mr Milan Kostic. At a site meeting with Mr Milan Kostic the next day, he was encouraged to say the circular saw in the incident belonged to him rather than Arc. Mr Milan Kostic denied that.

20. After the surgery on 14 June 2019, he was given a certificate of capacity for 14 days but remained off work completely for a couple of months.

21. From the time he resumed work, he worked full-time hours. When he first came back, he was doing light work, mainly cleaning and putting up tiles onto the ceiling. He was basically expected to do his usual duties as a carpenter/plasterer.

22. Under cross-examination, Mr Stankovic agreed he did overtime some weeks including some Saturdays as or when required. However, although he did extra hours at times, at no stage was he doing his same, unrestricted duties as before the incident.

23. Mr Stankovic did his best to get the work done, but never went back to using power tools. That was because of his grip strength being affected. He could not make a fist properly with his right hand as his right middle finger would not close. If his right hand had have been okay, he would have gone back to using power tools.

24. As for why he was not able to use power tools, he was scared and fearful and because of his injury.

25. Mr Stankovic attended Ms Stephanie Konstandinidis, an occupational therapist at a hand therapy clinic for several months from November 2019 until May 2020. He told the therapist about his job and his duties using basic English and gestures.

26. Under cross-examination, Mr Stankovic denied having resumed normal duties as a plasterer/carpenter. He also denied having told Ms Konstandinidis he was working normal duties. He could not recall whether he had seen the report of Ms Konstandinidis of 14 February 2020 which stated she was helping him ‘achieve his goal of returning to full work duties’.

27. Mr Stankovic disputed, in cross-examination, that he was performing normal plaster/carpentry duties at Karingal, his last workplace. He was still doing lighter work. His supervisor, Mr Gaffney, would come round the site in the morning and the afternoon. Mr Gaffney asked him not to do heavy jobs. For example, he was directed to stand guard in an area and not let people through. He would also help out others by holding things for them. Mr Gaffney denied these matters.

28. As for use of power tools at Karingal, under cross-examination, Mr Stankovic conceded using a cordless drill for a couple of days. He might have used hand tools such as a hammer, but could not really recall.

29. As for not complaining to Mr Gaffney or any of his supervisors, under cross-examination, he agreed he made no complaints about the work. They (the bosses) sent him to work and so he worked and never complained.

30. On 1 April 2021, Mr Stankovic was informed by Arc that he was being laid off as there was no more work available for him. However, he was aware of co-workers being kept on and moved to other projects.

31. Although he never got back to his normal pre-injury duties, Mr Stankovic loved working and never wanted to stop. He had not applied for other work and had not worked again since then. He called one of the bosses, Mr Borg, at one point as he held the hope Arc would call him back to work, but that never happened.

32. If it were not for his right hand injury, he could still do his pre-injury duties. He has pain in his right middle finger which comes and goes. He takes Panadeine forte.

33. The left hand condition had not stopped him from doing his work in the past and would not now.

34. Ever since the incident, he has had trouble sleeping and nightmares. He was more fearful overall.

35. Mr Stankovic is under the care of Dr Calic, his GP of many years with whom he speaks Serbian. He sees regularly a psychologist, Mr Bendjo, also a Serbian speaker, whom he first saw in September 2020 having been referred by Dr Calic.

Other lay evidence

Mr Nemanja Ignjic’s evidence

36. Mr Ignjic, a Serbian speaker, gave evidence without an interpreter. Now a self-employed carpenter, Mr Ignjic was formerly an employee carpenter/plasterer with Arc performing the same duties as Mr Stankovic. They began on the same day in March 2019, having been introduced to Arc by Mr Milan Kostic. He knew Mr Stankovic through the Serbian community, but they had no relationship outside work. When working for Arc, they were often paired together as Mr Stankovic did not speak much English and Mr Ignjic would translate when people asked questions on sites. Mr Stankovic was a good worker who worked hard.

37. Duties performed in the role with Arc involved handling packs of metal studs, plywood and sheets of plaster-board (weighing about 20 kilograms). In a day, a carpenter might hang 25 to 30 sheets. Power tools were used every day such as: circular saw, grinder, drop saw, power drill and others. Handling power tools required use of both hands. Without the use of power tools, you could not perform all your duties and you would just be labouring.

38. After Mr Stankovic’s return to work after the incident, Mr Ignjic had worked with him for about a week. Initially Mr Stankovic had helped with marking chalk lines and so on. He did not see him using power tools in that week.

39. In cross-examination, Mr Ignjic said initially Mr Stankovic did not make any complaints regarding his injury after his return to work, then said he could not recall.

40. In April 2021, at the time Mr Stankovic was laid off, Arc still needed people to do the work and people were simply moved around jobs and sites. That was when there were limits on numbers of workers on sites due to COVID restrictions.

Mr Milan Kostic’s evidence

41. Mr Milan Kostic, who gave evidence via a Serbian interpreter, is currently employed by Arc and has been for the past 15 years, as foreman or leading hand. The roles of leading hand and foreman were similar and involved overseeing workers on site. For example, at Rod Laver, he supervised 20 to 30 workers.

42. Mr Milan Kostic also operated Koscon, the entity for which Mr Stankovic had worked on Arc jobs for about four months before the incident.

43. Under cross-examination, Mr Milan Kostic said that Mr Stankovic was transferred over to Arc because Koscon had run out of jobs. As of June 2019, Koscon had about 10 employees. He could not recall the date of the handover, whether it was the day of, or week before the incident. He had discussed the transfer with the Arc boss, Mr Pat Moore.

44. Mr Milan Kostic was foreman at 477 Collins when the incident occurred and had taken Mr Stankovic to hospital. When he met with him the next day on site, it was to complete some paperwork, but whether that was for Arc or for the builder he could not be sure.

45. He denied, under cross-examination, telling Mr Stankovic to say the saw was his own and not Arc’s. He did not do the paper work that day, rather it was another Arc foreman, Mr David Goss. He never saw any incident report.

46. The using of power tools involved a lot of force and vibration and also could be heavy, for example, when using a power tool overhead for ceiling work.

47. After 477 Collins, he was leading hand at Rod Laver where Mr Stankovic also worked after the incident. Mr Stankovic never complained to him about his injury or the work or having pain.

48. In cross-examination, Mr Milan Kostic denied being aware of Mr Stankovic having needed hand surgery two days after the incident. He agreed that as a leading hand, he would want to know if somebody had come back to work on light duties.

49. As for whether Mr Stankovic was on light duties or normal duties, he did not know although the duties he performed at Rod Laver were no different to what he had been doing before. Mr Stankovic used power tools including a drop saw and a shoot gun as well as hand tools such as hammers and tin-snips. He saw him lifting plasterboards and other panels.

50. As foreman, he observed Mr Stankovic on site for half an hour or an hour of every day. He observed him having no difficulty with lifting or using power tools and hand tools or being on ladders. If he watched him doing a job, that could be five or 20 minutes.

51. In cross-examination, Mr Stankovic said he had a specific recollection of observing Mr Stankovic cutting with a power saw in a big room at Rod Laver. He was ‘100 per cent’ about this.

52. Mr Stankovic was doing overtime and, when a worker was on light duties, overtime was not allowed although that was not a written policy.

Mr David Goss’ evidence

53. Mr David Goss had been an employee foreman of Arc for 16 years until June 2021.

54. At the time of the incident, he was a foreman at 477 Collins. He believed Mr Stankovic had started a week or so before the incident and was an employee of Arc from the time he started. He was unaware of whether Mr Stankovic might have been working for Koscon before becoming an employee of Arc. Transfers of employees between companies happened not at site level but in the office.

55. In cross-examination, Mr Goss said that on the large construction sites, foremen had a general idea as to the company’s employees.

56. Mr Goss had no recollection of being at the site meeting with Mr Stankovic the day after the incident. Mr Stankovic would have needed to report the injury in the first aid book.

57. As for observations of Mr Stankovic working when he resumed after the incident, he recalled him on ground level working and not really doing a great deal. The work Mr Stankovic did before and after the incident was much the same.

58. In cross-examination, Mr Goss said he was unaware Mr Stankovic had surgery either when he returned to work or at any stage. He could not recall any discussions about restrictions on capacity for work when Mr Stankovic returned to work. He agreed that if there were discussions they would happen with the foreman.

59. As for observations of Mr Stankovic using power tools, he could not recall specifically although use of power tools was required as part of the job of the plasterer/carpenters.

60. As for how often, as a foreman, he would have observed Mr Stankovic at work, that depended. 477 Collins was a very sizeable job of over 45 levels and he might see him only once every day or so. In cross-examination, he also said you cannot be everywhere on sites like that.

61. As for whether Mr Stankovic complained about difficulties performing the work, there were fairly big communication issues due to the language barrier. Arc always had Mr Stankovic paired with another fellow who spoke Serbian. As a general rule, all workers in construction worked in pairs.

62. If a light duties certificate had been provided, that would have provoked a discussion between himself and the boss, Mr Pat Moore who was the return to work coordinator.

63. Overtime was not given to workers on light duties and if the Arc pay records show Mr Stankovic was doing overtime that would mean he was not doing light duties.

64. In cross-examination, Mr Goss said even before the incident Mr Stankovic was not the greatest of workers and was someone just filling in time.

Mr Martin Moore’s evidence

65. Mr Martin Moore was a foreman with Arc and had been in that role for 22 years. He was a brother of Arc’s director, Mr Pat Moore. He had been a foreman at Rod Laver where he had oversight of about 40 workers. Mr Martin Moore’s responsibility was to walk around the job and make sure everything was correct. Mr Stankovic was at Rod Laver in March 2020 reporting to Mr Milan Kostic. Mr Milan Kostic in turn reported to him.

66. Mr Martin Moore had no awareness of Mr Stankovic having suffered an injury either when he was at Rod Laver or at any time. No light duties certificates were presented by Mr Stankovic. If it were the case that Mr Stankovic was on light duties, he would have been sweeping floors as that was the only light work available. Mr Stankovic was not sweeping floors at Rod Laver. Nobody would be paid overtime rates to sweep floors.

67. Mr Martin Moore recalled seeing Mr Stankovic working including using power tools without difficulty. His observations would be for a few minutes at a time as he walked the site. He would only spend time watching a worker if they were doing something wrong.

68. In cross-examination, Mr Martin Moore referred to a specific recollection of seeing Mr Stankovic using a power tool in a ground floor toilet area for about seven to 10 minutes. The reason he recalled it was due to there being a problem with that part of the construction job.

69. There was substantial reduction in the workforce numbers due to the COVID restrictions. In cross-examination, Mr Martin Moore agreed there was ongoing work with Arc for plasterer/carpenters in April 2021.

Mr Bojan Kostic’s evidence

70. Mr Bojan Kostic had been a foreman and plasterer/carpenter with Arc for about 18 years. As for the invoices submitted to Koscon, Mr Stankovic had been working for Koscon although he could not say what the arrangement was between Mr Stankovic and Arc before the incident.

71. After Mr Stankovic had returned to work, there was about a month where he was working at the TED building while he (Bojan) was foreman. As far as he was concerned, Mr Stankovic was doing standard plasterer/carpenter duties including using power tools and performing his duties no differently to any other plasterer/carpenter. Mr Bojan Kostic had observed him working for five or up to 30 minutes at a time up to four times a day.

72. Mr Stankovic never told him he was on light duties or requested light duties nor did he ask for assistance.

73. In cross-examination, he said he had no specific recollection of seeing Mr Stankovic using power tools.

74. In April 2019, the workforce had been reduced markedly to about 10 per cent because of COVID restrictions.

75. Mr Bojan Kostic spoke to Mr Stankovic mostly in Serbian but also in English if other people were around.

76. As for the use of power tools, you would probably use your whole hand and you feel vibration depending on how you held the tool.

77. In cross-examination, Mr Bojan Kostic could not say who was the Arc return to work coordinator. He did not know that Mr Stankovic had had surgery. He was unaware that he still had only limited movement in his right middle finger. He was only aware of what he has told. At the TED building he did not check that he had any restrictions on his duties.

78. It was not necessarily the case that workers were in pairs and it all depended on the job.

Mr Branko Devic’s evidence

79. Mr Devic, who gave his evidence via a Serbian interpreter, had been a carpenter with Arc from about September 2018. He had worked alongside Mr Stankovic for about a week at Karingal. Even though both were from Serbia, they were not friends outside of work. They had worked together and in a trio with a scissor lift and there were six or seven men altogether in the area.

80. Mr Devic recalled seeing Mr Stankovic drilling holes at a bench using a power drill. As for other power tools, he had also used a vacuum hose to collect dust. He was at the table helping out and up in the ceiling. If Mr Stankovic had been lifting boards, there were always many of them involved in such tasks. He could not recall specifically what tasks Mr Stankovic was doing, but he was helping them out.

81. As for Mr Devic being aware of Mr Stankovic’s injury, they had talked about it and him having been injured at 477 Collins, but not which hand or how. Mr Stankovic never complained to him. As for whether Mr Stankovic had asked him for help, he did not know. Everyone was there to work and in a hurry.

82. It was the duty of the foremen to know what a worker is or is not allowed to do. At Karingal it was Mr Gaffney. Mr Gaffney never told him that Mr Stankovic was allowed to do light duties, however Mr Devic himself did not speak English so he did not communicate with Mr Gaffney much. He understood the basic instructions and knew what had to be done.

Mr Paul Gaffney’s evidence

83. Mr Gaffney had been foreman with Arc for about 14 years, having started as a plasterer. He was foreman at Karingal when Mr Stankovic was working there for about a month in early 2021. Mr Gaffney held daily tool-box meetings each morning and would generally get round the site four to five times a day. He stopped and watched if there were issues.

84. No one ever told him that Mr Stankovic was on light duties and he had never seen a certificate. Mr Gaffney had no workers at Karingal on light duties in that period.

85. Mr Stankovic had worked with a partner, Mr Devic. Mr Stankovic had no trouble performing the work nor did he seek assistance or complain about his injury.

86. He recalled Mr Stankovic doing work such as installing long metal studs, handling villa board wall panels (which weighed 25 kilograms) and being involved in buildling a parapet wall. He recalled him using power tools such as angle grinders and cordless drills.

87. Mr Gaffney agreed that Mr Stankovic spoke very broken English.

88. Under cross-examination, Mr Gaffney denied Mr Stankovic would have only used a cordless drill as he would have needed to use an angle grinder to cut metal.

89. Under cross-examination, he conceded that if he allocated a job or task to a pair or partnership for workers, he could not say which of the two did what.

90. If a person was on light duties, they did not do overtime.

91. As for the task of being a ‘spotter’ and stopping people coming into certain areas of the site, all the boys did that at Karingal to stop members of the public being endangered.

92. As for why Mr Stankovic stopped working at Karingal, he thought that was because of COVID restrictions being imposed which limited numbers on sites.

93. As for the return to work coordinator, he thought that was Mr Cliff Borg but had previously been Mr Pat Moore.

Mr Clifton Borg’s evidence

94. Mr Borg was project manager with Arc having commenced in July 2019. He had oversight of Arc’s jobs across multiple sites and needed to ensure staff were doing the right thing by the builders and with the various foremen. He visited sites a couple of days a week.

95. Mr Borg never really spoke with Mr Stankovic.

96. The frequency with which Mr Borg saw him on various jobs over 2020 and 2021 would have been once or twice a week. For example, he recalled seeing him including handling plaster sheets at Karingal.

97. In cross-examination, he said he was first aware of Mr Stankovic in early 2020 at Rod Laver although he had no direct supervision of him. The supervisors there were Mr Martin Moore and Mr Milan Kostic who each had oversight of about 25 workers. If Mr Stankovic had have been on restricted duties at Rod Laver, he would have been told that by Mr Pat Moore, Arc’s return to work coordinator.

98. Mr Stankovic was not on light duties. There was no difference between what Mr Stankovic was doing and what the other plasterer/carpenters were doing. As for whether Mr Borg observed Mr Stankovic using power tools, nobody said anything to him about Mr Stankovic not using power tools. He saw Mr Stankovic screwing sheets up using power tools.

99. In cross-examination, he said he had specific recall of seeing Mr Stankovic at Karingal using a cordless grinder with his right hand.

As for Mr Stankovic’s payslips showing overtime in various pay periods, Arc did not pay overtime to people on light duties. There were no light duties other than cleaning and Arc did not pay overtime rates for cleaning.

Mr Borg had sent an email to Mr Pat Moore dated 25 August 2021 about a phone call with Mr Stankovic in April of 2021 which stated as follows:

Hi Pat. About the 9/4/21 I had a phone call from Negoslav about work, when I told him we didn’t have any work he mentioned speaking to his lawyer about it. Thanks.

The phone call in April 2021 was in English and Mr Stankovic was asking about more work as he had been let go. There was no further discussion with Mr Stankovic after that.

In cross-examination, Mr Borg agreed that Mr Stankovic had only very limited English.

As for why Mr Borg would have sent the email in August 2021 about a phone call some four months previously, there was a need to have a record in writing of the conversation. He could not recall who asked him to write the email.

As for whether Mr Stankovic was a good worker, in cross-examination, Mr Borg said Mr Stankovic was ‘an all right worker’ and he did not hear anything bad about him.

Asked whether he could say Mr Stankovic was a good worker from his own observation, in cross-examination, he said he just walked by and did not watch all day.

Under cross-examination, Mr Borg said he did not recall how many workers were stood down in April 2021 because of COVID restrictions. When pressed, he estimated about half of the 120 workers were stood down. Most people at Karingal were relocated and only about five or six did not get ongoing work. It was not true that Mr Stankovic was not given work because of his finger injury.

Mr Pat Moore’s evidence

Mr Pat Moore had been director of Arc since 2000 and took care of tenders for new work and the financial side of the business. He had not much day to day involvement with the sites as that was the role of the project manager, Mr Borg.

Mr Pat Moore had never spoken with Mr Stankovic.

Mr Stankovic’s first day of employment was the date of the incident and before that he had worked for Koscon on Arc jobs. There was no formal communication such as a letter to Mr Stankovic advising him of his employment being transferred to Arc.

Under cross-examination, Mr Pat Moore denied that Mr Stankovic really began in March 2019 and agreed it was a coincidence that his first day of work with Arc was the day of the incident. He was unable to say what the reason would have been for engaging Mr Stankovic on that date (which was mid-week). He denied it might have occurred because of, or after, Mr Stankovic was injured. Any discussions as to engagement of, or transfer of workers between contractors, occurred on site and depended on builders’ requirements and work volume. All construction workers were on set union rates so there was no need to discuss terms of engagement and so on.

As for an incident report, under cross-examination, Mr Pat Moore said the main contractor (the builder) controlled all that and Arc did not have an incident report.

Over the period whilst Mr Stankovic was off work after the incident, he was paid normal wages without extra allowances.

As for why there was no discussion with Mr Stankovic about WorkCover, the reason was that it never came to that. People normally discuss that with their doctor and it is their decision. Mr Stankovic never presented Arc with a WorkCover certificate whilst working there.

He had not seen before the Melbourne Hand Rehab letter of 14 February 2020 setting goals and recommendations about Mr Stankovic’s return to work.

When asked whether his understanding was that Mr Stankovic returned to normal hours and duties, in cross-examination, Mr Pat Moore said that he received no claim form, no certificate of light duties and no return to work plan. On that basis, Arc took no steps to assess capacity. He could not say who made enquiries about his capacity after the time off work but it could have been Mr Goss.

As for whether he was the return to work coordinator, Arc normally used an outside provider as recommended by the WorkCover insurer.

In April 2021, jobs were impacted by social distancing requirements due to COVID and people including Mr Stankovic were let go for that reason.

If workers are on light duties, they do not work overtime. That is because light duties was just cleaning up and so it was a waste of money.

Medical evidence

Ms Stephanie Konstandinidis, occupational therapist with Melbourne Hand Rehab prepared a letter dated 14 February 2020. She reported being hopeful of helping Mr Stankovic achieve his goal of returning to full work duties. Her stated recommendation in terms of work capacity was returning to regular/pre-injury duties allowing for breaks as needed and subject to change if symptoms increased.

Dr Dragan Calic, GP, prepared a report dated 5 November 2021 and was cross-examined. The history was of a return to work after surgery and of doing light duties. The right finger became more swollen and painful as he worked more than he was supposed to do, then he was not called back to work in 2021 after a holiday. He opined that the diagnosis was extensor tendinopathy and flexor tenosynovitis and PIP joint radial and ulnar collateral ligament strain. That was based on the ultrasound report of 26 August 2021. Mr Stankovic had no capacity for pre-injury duties and that his incapacity resulted from and was materially contributed to by the injury to his right middle finger.

Dr Calic had treated Mr Stankovic since April 2015 and spoke with him in Serbian. The pathology seen on ultrasound was a condition colloquially known as ‘trigger finger’ and involving difficulty stretching or extending the finger. He has continued to provide certificates of capacity for modified duties including: avoidance of repetitive lifting, pulling, pushing and carrying more than 5 kilograms.

In cross-examination, Dr Calic was asked about a left hand ultrasound report of 3 August 2021 which stated: ‘Left middle finger difficult extension. Fourth and fifth finger 6 flexor tendons since birth’.

Dr Calic agreed that based on the ultrasound reports, Mr Stankovic had ‘trigger finger’ of the middle fingers of both hands. He agreed that in some cases aetiology of ‘trigger finger’ is unknown and in some cases it was injury. However, under cross-examination, he disagreed there was not much difference between the pathology of the right and left middle fingers. The difference was the flexor tenosynovitis which usually resulted from traumatic injury.

In cross-examination, Dr Calic agreed that the first attendance post the incident was on 2 July 2019 and that related to mental health issues. He had recorded that he was not working due to a finger injury. On 19 August 2019, Dr Calic noted that the hand therapist was happy for him to go back to full modified duties with restrictions to grip and lift over 5 kilograms. He agreed there were then no complaints about the finger in any attendances until after Mr Stankovic ceased work in 2021.

Also in cross-examination, Dr Calic agreed that he completed a Centrelink capacity certificate dated 21 June 2021 that referred to three diagnoses: depression and anxiety; the right middle finger; and the contracture condition of the fourth and fifth fingers of the left hand.

In re-examination, Dr Calic was asked about the significance of the incident as regards the ultrasound findings. He opined that there had obviously been a deep laceration to the right middle finger requiring surgery and protracted hand therapy. The disability of the right middle finger had been caused by the injury at work. As for whether Mr Stankovic could manoeuvre power tools, it would be very difficult. Additionally, Mr Stankovic’s mental health had been impacted, and worsened, by his right middle finger injury.

Mr Slobodan Bendjo, psychologist, first saw Mr Stankovic in September 2020 and prepared a report dated 21 November 2021 at which time he was still under his care. There was a consistent experience of anxiety and depression and a reported change (both significant and negative) in functional capacity coinciding with the incident. Mr Stankovic reported a reduced capacity to work since the incident. Depressive moods and anxiety were still assessed as high and it was opined there was no capacity for pre-injury duties.

Ms Joy Baselyous, physiotherapist, prepared a letter dated 3 August 2021 to Dr Calic about a referral for treatment of left forearm pain including trigger finger evident along the third digit.

Dr Dennis Handrinos, psychiatrist, prepared a report for the Agent dated 30 August 2021. The history given was of being pushed to return to work a month after the incident but of never being able to return to pre-injury duties. He had a fear of re-injuring himself and of being unable to use power tools. Symptoms began after the injury and were made worse by being pushed then being laid off. The main problem was fear. There appeared to be past psychological trauma as a result of experiences in the Bosnian war. Diagnosis was an adjustment disorder with mixed anxiety and depressed mood with features of traumatisation. A comprehensive assessment was precluded by Mr Stankovic’s reluctance to discuss any past psychiatric history. Performing pre-injury duties would be limited by his untreated phobic avoidance related to use of power tools.

Dr Handrinos, in a supplementary report of 2 September 2021, reviewed the accounts of the employer and noted the factual discrepancy between employer accounts of Mr Stankovic having resumed normal duties and Mr Stankovic’s account of not doing so. Whether there was an incapacity depended upon which account was preferred.

Dr Umberto Boffa, occupational physician, prepared a report for the Agent dated 30 August 2021. The history obtained was of resuming full-time restricted duties three to four weeks after the incident and of remaining on restricted duties until they were withdrawn in April 2021. On examination, there was a limit on the ability to make a fist with the right hand. Diagnosis was persistent post-traumatic right middle finger flexor tendon stenosis. There was a capacity for pre-injury hours and, depending on verification of the worker’s account of not getting back to pre-injury duties, a capacity for restricted duties avoiding repetitive lifting pulling and carrying more than 5 kilograms with the right hand which would last indefinitely.

Dr Boffa, in his supplementary report of 2 September 2021, also reviewed the accounts of the employer and noted that Mr Stankovic’s history of remaining on restricted duties was not supported by the employer. Accordingly, he revised his opinion about there not being capacity for normal pre-injury duties. He also re-stated that examination showed clearly a degree of permanent traumatic right middle finger flexor tendon stenosis.

Dr James Rowe, occupational physician, prepared a report for Mr Stankovic’s lawyers dated 22 August 2022. A history was given of the incident and of being certified as fit to return to light duties, however appropriate work was not provided. Mr Stankovic continued to suffer with pain, swelling and restricted functional use of the right hand which had not abated. The loss of ability to work and ongoing symptoms caused a decline in mental health. It was noted there was contention over the duties post-injury and the employer claiming he worked normally after returning to work. On examination, there was obvious contracture of the right middle finger involving an inability to fully flex or extend the finger which appeared grossly swollen and discoloured. There was impaired sensation about the finger. Grip strength was measurably reduced using a hand dynamometer. It was opined that irrespective of miscommunication, based on examination, Mr Stankovic was not a safe or realistic prospect for full pre-injury duties.

Analysis and Findings

The burden of proof rested upon Mr Stankovic to satisfy the Court, on the balance of probabilities, that he had an entitlement to weekly payments of compensation based on an incapacity for pre-injury employment resulting from or materially contributed to by the accepted injuries.

Arc’s denial of the weekly payments claim was encapsulated by the following particulars in the notice of defence of 25 May 2022 (at paragraph 10):

a. The Plaintiff does not have an incapacity for his pre-injury employment as a result of his right middle finger and consequential psychological injuries.

b. The Plaintiff performed his pre-injury employment at his pre-injury hours from July 2019 to April 2021.

I turn first to make formal findings as to injury and also as to the pre-injury duties of Mr Stankovic.

Nature of Injuries

In its defence, Arc had admitted that Mr Stankovic suffered an injury to his right middle finger in the course of his employment in the incident on 12 June 2019.

I find that the nature of the medical condition relevant to Mr Stankovic’s right middle finger was a right middle finger flexor tendon stenosis.

That was the diagnosis of both occupational physicians in the case, Dr Boffa (who examined Mr Stankovic for the Agent) and Dr Rowe (who assessed him at the request of the plaintiff’s lawyers some twelve months later). Dr Rowe’s was the most recent and comprehensive of the specialist reports in the case. Both physicians’ diagnosis reflected the pathology seen on the ultrasound report of 26 August 2021 being extensor tendinopathy, flexor tenosynovitis and PIP joint radial and ulnar collateral ligament strain. Dr Calic relied on the same findings for his diagnosis.

Additionally, I find that Mr Stankovic suffered from a psychological condition secondary to his right middle finger flexor tendon stenosis. Specifically, I accept and adopt the expert diagnosis of Dr Handrinos, the only psychiatrist to provide an opinion, of an adjustment disorder with mixed anxiety and depressed mood. That reflects Dr Calic’s clinical assessment of the presence of anxiety and depression. I will return to Dr Calic’s evidence in some detail later in these reasons.

Although Mr Stankovic’s own evidence and Dr Calic’s and Dr Handrinos’ histories all referred to trauma features flowing from the incident, it was submitted by Arc that the Court had no jurisdiction regarding any primary psychiatric condition. Arc relied upon the well-established principles set out in Robinson v SPI Electricity Pty Ltd.[2]
[2][2012] VMC 30.

Mr Stankovic’s Counsel did not submit otherwise. She accepted that Mr Stankovic was precluded from relying on any psychological condition other than that referred to in the Agent’s notice, being a ‘secondary psychological condition’.

Otherwise I agree with Arc’s Counsel that the report of Mr Bendjo, the treating psychologist, was of limited assistance, setting out no real history and opining as to treatment needs.

Nature of Pre-Injury Duties

Given the dispute between the parties as to what Mr Stankovic did and did not do after his return to work, it is necessary to make factual findings regarding the pre-injury duties.

Mr Stankovic’s evidence about this was uncontroversial and consistent with various witness accounts about the normal duties of a plasterer/carpenter with Arc. Those were the accounts of the foremen at different sites (such as Mr Goss, Mr Bojan Kostic, Mr Gaffney and others) and also by carpenters in like roles to Mr Stankovic (Mr Ignjic and Mr Devic).

I find, on the evidence of these witnesses, that Mr Stankovic’s pre-injury duties were the normal duties of a plasterer/carpenter with Arc. This role involved performance of plastering and carpentry tasks required for the installation of ceilings and internal walls. The tasks included: carrying, manual handling and installing of plasterboard and Villawood panels, metal studs and other materials and involved the use of a range of both power tools and hand tools. Ceilings were accessed via a scissor lift. Based on the evidence of all witnesses, power tools included: saws such as a drop-saw, cordless drills and a shoot-gun. Ordinary hand tools used included hammers and tin-snips.

Additionally, I make a factual finding that Arc’s plasterer/carpenters usually worked on site in pairs. That was the unchallenged evidence of multiple witnesses including Mr Ignjic and of foremen such as Mr Goss and Mr Gaffney and also Mr Pat Moore.

Whether Pre-Injury Duties Were Performed between August 2019 and April 2021

A central contention of Mr Stankovic’s case was that he never returned to his full or normal pre-injury duties.

That was vigorously challenged by Arc. Indeed, it was submitted by Counsel for Arc that the eye-witness evidence was overwhelming that Mr Stankovic did resume and continue to perform pre-injury duties. That was from roughly the time of his return to work up until his termination in April 2021.

I will set out my consideration of the evidence of Arc’s witnesses in detail shortly. However, for reasons I will shortly expand upon, it is convenient to observe at this point that there were aspects of the evidence of the Arc witnesses that I did not accept as reliable or credible.

I begin by assessing Mr Stankovic’s own evidence.

According to submissions of Arc’s Counsel, inclusion of body parts other than the right middle finger should be considered the ‘first strike’ against Mr Stankovic in terms of credit. As Counsel for Arc observed in his closing address, right up until the morning of the final day of hearing, Mr Stankovic had maintained his claim in respect of right upper limb injuries other than the right middle finger.

It is true that inclusion of additional right upper limb injuries may have ‘muddied the waters’ somewhat in the running of the hearing (and to some extent the histories to doctors). Whilst Mr Stankovic’s Counsel was plain enough in her opening address that the focus was on the right middle finger, I agree with Arc’s Counsel that has no bearing on assessment of the plaintiff’s credit.

It seems that at least a partial explanation as to reliance on other aspects of the right upper limb was perhaps out of an abundance of caution by him and/or the lawyers. That is on the basis that the form was completed by lawyers and signed by Mr Stankovic. Importantly, also, Mr Stankovic’s evidence of not being able to read or write much English was corroborated by many others and, to my mind, was not seriously challenged.

Counsel for Arc submitted that Mr Stankovic’s credit came under attack by reason of aspects of his own evidence and histories to doctors. For example, the clear inference in Dr Rowe’s history was that Mr Stankovic no longer went fishing because of his injury. That was in contrast to the true position recorded by Dr Calic and Dr Boffa which was that he stopped going fishing because of COVID restrictions.

In essence, Mr Stankovic’s credit on the issue of him not performing normal pre-injury duties was challenged by Arc on two fronts: firstly, because of multiple eye-witness accounts adduced in evidence; and secondly, by reason of the contemporaneous records of Ms Konstandinidis and Dr Calic.

It is convenient to deal first with the contemporaneous medical evidence and then return to consider the lay witness evidence.

I do not place much weight on Ms Konstandinidis’ clinical notes which comprised seven attendances between 21 November 2019 and 18 May 2020. Each note contains an identical or almost identical progress report and the note ‘better than last time’. Although Ms Konstandinidis was not called to give evidence, it seems quite likely each note was copied and pasted on each subsequent occasion without any real probing of her patient.

Weighing the whole of his evidence, I accept as genuine Mr Stankovic’s account that he communicated with Ms Konstandinidis in broken English and hand gestures. It is hardly surprising to my mind that the notes have a lack of any detailed account of duties being performed nor as to the use or otherwise of power tools and so on.

By the time of the attendance on 14 February 2020, Ms Konstandinidis had noted ‘working normal duties now’ and that note was repeated each time until the last attendance. Yet, it seems to me that her note of ‘working normal duties now’ is contradicted by her report of the same date (14 February 2020). In the report she stated only that she was ‘hopeful’ of him achieving his goal of returning to full work duties (rather than that he had). Also, she stated that it was her ‘recommendation in terms of work capacity’ that he return to ‘regular / preinjury work duties, allowing for breaks as needed’.

At that stage, of course, the evidence was that Mr Stankovic was working full time hours doing many aspects of his usual duties. I infer that is what she meant by ‘normal’.

Moreover, weighing the whole of the evidence, I conclude, based on the report in which Ms Konstandinidis was stating that resuming ‘full work duties’ was a goal or a hope, rather than something that had occurred.

As Counsel for Arc also submitted, it was a relevant consideration that Mr Stankovic attended Dr Calic several times during the return to work period. There was the 19 August 2019 attendance (when it was noted the hand therapist was happy for him to return to full modified duties at work with restrictions to grip and lifting). Thereafter, there were no attendances on Dr Calic over this period that had any record of the finger injury or consequences of it. Rather, attendances are for unrelated medical issues and mental health concerns connected to his war time experiences.

Weighing the whole of his evidence, I found Mr Stankovic to be a truthful, cooperative and unsophisticated witness. His answers in cross-examination seemed to me to be direct and unembellished. For example, he was open and ‘matter of fact’ about never having complained about his injury or about the work to the foremen such as Mr Gaffney at Karingal.

Mr Stankovic made other appropriate concessions against interest under cross-examination. He agreed he would still be working if he had not been laid off. He also agreed that he had never applied for other jobs after finishing up because of his hope (at least initially) that Arc would call him to come back. Although not a part of his claim (as noted previously), he was honest in admitting he was fearful about using power tools.

Additionally, I find that Mr Stankovic was a stoic individual who was determined to get back to work after his injury. As he said, the bosses sent him to work at various sites and so he worked. He persisted in working and even doing overtime. That was despite (as I have found based on the medical opinions) an impaired right middle finger and an inability to make a proper fist with his dominant hand. I conclude that his stoicism combined with him being back at work full-time simply getting on with things is the explanation for why nothing was said to Dr Calic over this time.

Mr Stankovic’s lack of sophistication was apparent from his evidence about the invoices for his work between March and June of 2019. He said he was able to fill them in by copying a co-worker and writing down the numerals for the number of hours and rate. I accept as credible his evidence that he believed he was working as an employee of Arc between March 2019 and the date of the incident. Of course, that was disputed by Arc whose pay records suggest he only became an employee as at the date of the incident a matter to which I will return. `

Mr Stankovic gave consistent evidence, repeated at numerous points, that after returning to work in about August 2019, he never resumed performing his normal or usual pre-injury duties. Rather he did light or lighter work or modified his work duties. For example, after first returning to work at 477 Collins following the time off, Mr Stankovic said he was mainly cleaning and moving tiles up to the ceiling.

That evidence was corroborated by Mr Ignjic, another carpenter/plasterer, who said he had been paired to work with Mr Stankovic at 477 Collins for about a week when he first came back to work. His evidence was that Mr Stankovic was at that stage doing very light tasks such as marking chalk lines.

I found Mr Ignjic to be an impressive and honest witness. I consider his account (although his observations were limited to a period of about a week) to be an objective and unbiased one given he was not a current employee of Arc. His evidence of having no relationship with Mr Stankovic outside work, other than being acquainted through the Serbian community, was not challenged.

Mr Ignjc gave compelling evidence regarding the necessity of using power tools every day and that such tasks required both hands. He also said that without using power tools, you ‘could not perform all your duties and you would just be labouring’. Mr Ignjic did not recall seeing him using power tools in the week he worked with him at 477 Collins.

According to Mr Stankovic’s evidence, he did not get back to using power tools as he had before. It is true that, under cross-examination, he conceded that he used a cordless drill at one stage for about three days and might have used hand tools such as a hammer, but could not really recall. He was adamant that he did not use any other power tools and that this remained the case right up until the last site he worked, Karingal.

I now turn to consider the lay evidence of the witnesses called by Arc.

Aside from there being no certificates of capacity provided, there were two main planks of Arc’s case that Mr Stankovic did not perform (and could not have been performing) duties other than his pre-injury duties in the period to 1 April 2021.

Firstly, as I have stated already, Arc’s case was that he was observed by numerous eye-witnesses at multiple sites over the whole period apparently working without restriction nor showing any difficulty including with using power tools.

Secondly, given Arc pay records showed he was performing overtime, it followed that he could not have been on light duties. That would have contravened Arc’s established company practice and policy.

I turn now to what I will call the observation evidence and the reasons why, weighing the whole of the evidence, I prefer the evidence of Mr Stankovic.

Mr Milan Kostic, Mr Martin Moore, Mr Bojan Kostic and Mr Gaffney (all foremen and all very long-standing Arc employees) each gave evidence of observing Mr Stankovic working normally, without any apparent difficulty, and using power tools. It is of course necessary to consider the reliability of each of these accounts.

Mr Milan Kostic was an important witness in the case having been foreman at 477 Collins at the time of the incident. Also, he was foreman when Mr Stankovic went back to 477 Collins and later at Rod Laver. According to his evidence, Mr Stankovic was performing without difficulty the same duties at Rod Laver as he had been before the incident. That included use of power tools and lifting panels. Indeed, he was ‘100 per cent sure’ of a specific recollection of seeing Mr Stankovic using a power tool.

I did not form a favourable impression of Mr Milan Kostic whom I did not consider to be a credible or reliable witness. Many aspects of his evidence were vague, evasive or deliberately self-serving and intended to mislead.

Firstly, as to the weight and impartiality of his evidence, I take into account that he was a foreman of some 15 years with Arc. Also, with his brother, Mr Bojan Kostic, he operated Koscon, a contractor of Arc, the entity that apparently employed Mr Stankovic up until the date of the incident.

The evidence as to the circumstances of Mr Stankovic becoming an employee of Arc on the day of the incident lacked any real clarity to my mind. Somewhat implausibly, Mr Milan Kostic claimed not to recall the date of transfer of employment to Arc or whether it was that day or a day or a week before. That was in spite of the incident occurring at about the same time and Koscon having only 10 employees.

Secondly, it seems to me, at least some of Mr Milan Kostic’s answers were deliberately untruthful. For example, whilst apparently having precise recall of seeing Mr Stankovic using a power tool, he also claimed to be unaware that Mr Stankovic had undergone surgery. I consider that to be a dishonest account given it was he who took Mr Stankovic to hospital and he who met with him on site the next day about the paperwork. That was also the very day (13 June 2019) on which Mr Pat Moore wrote the letter to the Epworth accepting liability for treatment expenses, I find it likely that Mr Milan Kostic arranged for the letter and was fully aware of the surgery.

His evidence about the meeting on 13 June 2019 was evasive recalling little or nothing about what paperwork was completed or why there was no Arc copy of an incident report (even if it were accepted it was the builder’s ultimate responsibility). Additionally, although not relevant to this case, I prefer and accept Mr Stankovic’s evidence that there was an attempt at that meeting to get Mr Stankovic to say the saw was his own.

As for Mr Martin Moore, a foreman at Rod Laver, in weighing the impartiality of his evidence, I note that he was the brother of the company director, Mr Pat Moore, and had worked for Arc for some 22 years. He also gave what I considered to be unlikely evidence of having a very specific recollection of seeing Mr Stankovic using power tools such as in a toilet block at Rod Laver apparently because there was a problem with the job. He also gave evidence of Mr Stankovic using various power tools for a few minutes at a time.

It is surprising that over an eighteen month period with oversight of 40 workers on a site as vast as Rod Laver, he would recall one worker using a power tool. Moreover, such an exact recollection is at odds with his evidence of having no awareness at the time of Mr Stankovic having suffered an injury. Under cross-examination, he agreed that Mr Stankovic had worked with Mr Devic at Karingal and of him helping other workers. He had not seen him doing any cleaning type tasks.

Mr Bojan Kostic, a foreman at the TED building, was an employee of Arc for nearly 20 years and was also Mr Milan Kostic’s brother, matters that to my mind go to the weight or objectivity of his evidence. It appears he had some role in Koscon as it was to him that Mr Stankovic said he gave invoices. Yet Mr Bojan Kostic’s evidence was entirely vague about this, saying he knew little or nothing of the arrangement between Mr Stankovic and Arc before the incident. He said Mr Stankovic was doing normal plasterer/carpenter duties at the TED building although under cross-examination he said he had no specific recall of him using power tools.

Mr Gaffney, a foreman at Karingal and an employee of some 14 years, gave a similar account to the other foremen. He observed Mr Stankovic having no trouble with using power tools (including an angle grinder) or installing metal studs, handling panels and building a parapet walls.

Those were the four foremen who recalled Mr Stankovic working normally after his return to work.

Mr Goss, a foreman at 477 Collins, was a former long-term employee of Arc but no longer worked for the company. I found him to be a witness of credit who gave frank and plausible answers. For example, at 477 Collins, a very large construction site of over 45 levels, he as foreman might only have seen Mr Stankovic once a day. He described ‘fairly big communication issues’ due to the language barrier. He had no recall of observing Mr Stankovic using power tools after his return to work but thought the work he was doing before and after was ‘much the same’.

Mr Devic, an employee of Arc though not a foreman, I found to be an impressive witness. He gave a straight-forward and frank account as a co-worker at Karingal. Although of Serbian origin, his evidence of having no connection with Mr Stankovic outside of work was unchallenged. Mr Devic said he had seen Mr Stankovic using a power cordless drill (which was conceded by Mr Stankovic) and a vacuum hose. He described working in groups of six and if lifting was required, there were always many of them involved. He could not say whether Mr Stankovic had asked for help but, as he said, everyone was there to work and everyone was in a hurry.

The other witness called by Arc who gave observation evidence was Mr Borg. As second-in-charge reporting to Mr Pat Moore, he was in a senior role overseeing all the company’s projects.

Mr Borg apparently recalled seeing Mr Stankovic using a cordless grinder in his right hand and also a screw gun at Karingal. Yet again, I found troubling the specificity of this evidence given the nature of his role of having oversight across all sites including the several vast sites at which Mr Stankovic worked. He conceded never really speaking with Mr Stankovic, yet could recall seeing him performing his duties on numerous jobs at numerous sites including the specific recollection to which I just referred.

As for the reliability of his apparently specific observations of work, when asked under cross-examination, whether he could say Mr Stankovic was a good worker from his own observation, Mr Borg conceded that he ‘just walked by and didn’t watch all day’. To my mind, that undermines the reliability of his account.

Finally, it was Mr Pat Moore, the director, who had signed off on the Employer Injury Claim Report of 12 August 2021 which stated: ‘worker had returned to pre-injury hours/duties for more than 20 months with no issue’.

I did not find Mr Pat Moore to be an impressive or reliable witness. Many of his answers lacked directness and were contradicted by other Arc witnesses.

Mr Pat Moore had never spoken with Mr Stankovic. As he said himself, he was office-based and had no real day to day involvement on the sites. Yet, somewhat perplexingly, according to witnesses such as Mr Goss, Mr Pat Moore was Arc’s designated return to work coordinator. However, Mr Pat Moore denied that, saying Arc used an outside provider.

Also, according to Mr Pat Moore, any transfer of employees between contractors (such from Koscon to Arc) occurred at site level. Yet that was contradicted by others such as Mr Goss who said that happened in the office and that the foremen on the ground had no knowledge of that. Plainly, it seems likely such a transfer or engagement would be arranged at a company office level given the initiation of formal pay-slips from June 2019 onwards.

Mr Pat Moore’s evidence also seemed to me to be entirely disingenuous when cross-examined on why Arc had no discussion with Mr Stankovic about WorkCover. He said that was Mr Stankovic’s choice and it was up to people to decide that with their doctors. When it was put to Mr Pat Moore, under cross-examination, that no claim form was put in by Mr Stankovic for the very reason that Arc had covered his expenses and wages, he denied that was the situation. He then said he did not ‘coach people’ to put in claims or certificates.

Weighing the whole of the evidence, and the reasons outlined regarding Mr Stankovic’s evidence and the observation evidence of Arc’s witnesses, I make the following factual findings:

a. On or around 17 August 2019 Mr Stankovic returned to work at 477 Karingal performing full-time hours. That date was based on the evidence of the first pay-slip which included payment of a site allowance occurred. The evidence of several witnesses was that once a worker was coming on site, a site allowance would be paid.

b. At least initially, he did quite light work (as both he and Mr Ignjic said).

c. Based on the whole of the evidence and accounts of Mr Goss and Mr Gaffney, I find it likely that over time Mr Stankovic did take on more if not most aspects, although still modified, of the duties of plasterer/carpenter. As Mr Stankovic said, he was expected by the bosses to carry out his usual duties and so he turned up and did his best. Indeed, as Ms Konstandinidis stated in the letter of 14 February 2020, that was Mr Stankovic’s goal.

d. Based on the whole of the evidence including the medical evidence (to which I will return), I conclude that Mr Stankovic at each site at which he worked (including the final site of Karingal) was persistently and perhaps with some subtlety modifying the way he worked. Based on his evidence and the evidence of others such as Mr Ignjic and Mr Devic, I find it likely that, he did this by restricting or avoiding certain tasks and relying on others to get team or pair-allocated tasks done. I find that he likely did use some power tools if it was unavoidable but only to a limited extent as he conceded.

It seems to me, in weighing the whole of the evidence, including Mr Stankovic’s evidence and the observation evidence of Arc’s witnesses overall, that there were four main reasons why Mr Stankovic was able to work in this way and modify his duties day to day.

Firstly, the foremen all referred to the vast nature of these sites such as Rod Laver or 477 Collins (a building of over 45 levels) and of them having responsibility for around 20 to 30 workers across one of these sites at any given time.

Secondly, the evidence was that the foremen’s observations were not of a sustained nature. Rather, they were fleeting and sporadic for periods of between five and 10 minutes to 20 or at most 30 minutes once or day or up to a few times a day.

Thirdly, the evidence was that the carpenter/plasters worked in pairs or small groups. As Mr Gaffney said, if he allocated a job to a pair or partnership of workers, he did not concern himself with who did what as long as it got done. Also, as both Mr Devic and Mr Ignjic said, everyone was there to work and everyone was in a hurry. Mr Devic said that if Mr Stankovic had been lifting panels, there were always many of them involved in such tasks.

Fourthly, it seems to me there were communication issues as nearly all the witnesses referred to the language barrier as being significant and of reliance on others such as Mr Devic (who himself spoke little English) and Mr Ignjic. Mr Goss gave evidence of the difficulties communicating with Mr Stankovic because of the language barrier and that Mr Stankovic would be paired with another worker who could translate for him.

I now turn to the evidence in relation to the second plank of Arc’s case. That was the contention that, because he was performing overtime during this period, it necessarily followed that Mr Stankovic could not have been performing work other than his usual pre-injury duties.

That was the evidence of the foremen, Mr Milan Kostic, Mr Goss, Mr Gaffney and Mr Martin Moore. Mr Borg and Mr Pat Moore both said people on light duties did not do overtime and the only light duties available were cleaning such as sweeping. Paying workers overtime rates for cleaning was a waste of money so that never happened according to the bosses, Mr Pat Moore and Mr Borg.

I do not accept that argument given Mr Stankovic’s circumstances. I accept that may be the situation when a construction site worker is presenting formal light duties certificates and is allocated conventional light duties such as sweeping floors.

However, it seems to me not to be a persuasive argument with regards to Mr Stankovic or somebody in Mr Stankovic’s situation. The evidence was, of course, that Mr Stankovic’s situation was one where he was not presenting certificates before or after his return to work. Accordingly, he came back to work and resumed full-time hours doing a modified or restricted version of what he had done before he was injured.

I have already set out the four main reasons as to why that occurred. Those are the same circumstances that explain essentially why nobody precluded him from doing overtime. At a site level, the evidence of the foremen was of an apparent lack of awareness of his injury, the nature of it or any resulting impairment or restrictions.

Finally, I observe that it undoubtedly suited Arc’s needs for Mr Stankovic to do the overtime given the pressures of work on these massive construction jobs.

Capacity

Next, it was submitted for Arc that regardless of whether or not Mr Stankovic actually did perform his pre-injury duties over that period, the evidence was overwhelming that he regained the capacity to do his pre-injury duties.

Counsel for Arc submitted that the evidence of Mr Stankovic having capacity for regular overtime hours (including at times working a sixth day) itself supported the argument that he, overwhelmingly, had capacity for pre-injury duties.

I do not accept that submission, having already referred to Mr Stankovic’s stoicism and the reasons why he was able to continue to work in a modified way on these large sites notwithstanding his impaired right middle finger.

Next, Counsel for Arc submitted that there was simply no contemporaneous medical (or even of the allied health provider) record of incapacity nor any certificate of capacity provided by Mr Stankovic at any time prior to the termination of his employment. Certainly that was the evidence. Apart from Ms Konstandinidis’ letter of 14 February 2020, nothing was ever formalised by way of certificates of capacity (other than the initial 14 day certificate of the hospital) nor indeed clearance for normal duties.

Next, Counsel for Arc submitted that it was significant that Mr Stankovic did put in certificates for various sick days, but never put in certificates for the right middle finger condition either for time off or for modified duties.

To my mind, the lack of any formal certificates being provided by Mr Stankovic to Arc is entirely explicable by Arc’s own conduct from the outset, a matter to which I will return later in these reasons.

I now turn to the medical evidence on capacity.

There was unanimity in the medical opinions as to the impaired function of Mr Stankovic’s middle finger of his dominant hand.

On examination of the right hand, Dr Boffa, in a relatively brief report, recorded an inability to form a normal fist. Even in his second report when he alters his view based on Arc’s position that he did resume pre-injury duties, he nevertheless re-stated his finding on examination of the stenosis and its permanency.

On examination by Dr Rowe, whose report I found to be more detailed and considered than that of Dr Boffa, there were substantially more detailed findings including: the obvious contracture of the right middle finger involving an inability to fully flex or extend the finger; observations of gross swelling, discolouration and altered sensation about the finger. Additionally, Dr Rowe stated that he had used a hand dynamometer to record measurable clinical reduction in grip strength. Upon being instructed as to the conflict about the nature of the return to work duties, Dr Rowe remained resolute in his opinion that, irrespective of miscommunication, based on examination, Mr Stankovic was not a safe or realistic prospect for full pre-injury duties.

Dr Calic, whose evidence was subject to extensive and rigorous cross-examination, had provided certificates of capacity from April 2021 with restrictions on stretching or extending the finger. He opined that appropriate restrictions were avoidance of repetitive lifting, pulling, pushing and carrying more than 5 kilograms. That was unchanged from the advice of the hand therapist in August 2019 approving him returning to ‘full modified duties at work with restrictions to grip and lift over 5 kg’.

It is no doubt true that Dr Calic, as Arc’s Counsel submitted, was an advocate for his patient whom he had treated since 2015. For example, he had a history (which was not supported by contemporaneous records) that the right finger became more swollen and painful as Mr Stankovic worked more.

Nevertheless, I formed a favourable opinion of Dr Calic, the only medical witness whose evidence was tested in cross-examination. He answered questions in a way that seemed to me to be considered and frank. He made appropriate concessions such as that ‘trigger finger’ can be of unknown of aetiology, that he told all his patients to take over the counter medications if needed and did not resile from the fact that in almost two years of treatment he recorded no complaint about the finger injury.

Dr Calic also squarely addressed the matter of the ‘trigger finger’ condition impacting the fingers of the left hand. He gave what I found to be a convincing explanation regarding significance of the presence of flexor tenosynovitis which he said usually related from trauma.

Dr Calic opined that manoeuvring of power tools would be difficult with the disability to the right hand. Indeed, many of Arc’s witnesses, including Milan and Bojan Kostic and others, make concessions about the use of power tools involving force, considerable vibration and requiring use of both hands.

For these reasons, I prefer the opinions of Dr Calic and Dr Rowe (to that of Dr Boffa) that Mr Stankovic has a residual incapacity for pre-injury duties as result of the right middle finger condition.

I find that Mr Stankovic’s incapacity results from or is materially contributed to by the right middle finger condition. That was the unanimous opinion of Dr Calic, Dr Rowe and Dr Boffa.

As for the secondary psychological condition impacting on work capacity, Dr Calic had included ‘depression and anxiety’ as being one of the diagnoses impacting upon work capacity in the Centrelink certificate of 21 June 2021. Also, while there was evidence of other factors (such as war trauma) impacting upon Mr Stankovic’s mental health, I accept and adopt Dr Calic’s view that the psychological condition had been worsened by the right middle finger injury and from not being at work due to that. For these reasons, I consider also that the secondary psychological condition has materially contributed to incapacity for pre-injury duties.

Finally, as for Mr Stankovic’s termination of employment, whilst occurring against the background of COVID restrictions, it is clear from accounts of Mr Gaffney and Mr Bojan Kostic that many workers were simply moved to other sites. Mr Borg said all but six or so at Karingal were moved to other sites. It seems at least likely that Mr Stankovic would have kept working in a modified way as before April 2021 had he not been laid off.

Commencement of first entitlement period

The question then arises as to when the first entitlement period commences.

On the evidence of Mr Pat Moore, Mr Stankovic was paid his full pre-injury wages throughout from the date of injury until 1 April 2021. At no stage (even when off work altogether) did Arc pay Mr Stankovic sick leave or anything other than his ordinary pre-injury wages.

It was submitted by Mr Stankovic’s Counsel that weekly payments were not ‘paid or payable’ prior to the initial certificate of capacity being issued and the recognition of incapacity which occurred on 2 April 2021. That was the date that the entitlement commenced.

On the other hand, Counsel for Arc submitted that, were the Court to accept Mr Stankovic’s central contention that he was incapacitated for pre-injury duties from the time of the incident, then it followed that the first entitlement period commenced on 12 June 2019. Ultimately, on that basis, the period of 130 weeks would have expired on 12 December 2022.

It was submitted for Arc that a delay in the worker making the claim for compensation and providing the employer with a certificate of capacity ought not impact upon the commencement of the entitlement period. That could not be sensibly contended by the plaintiff and, further, it was submitted, plaintiffs in this Court commonly argue that the entitlement period commenced prior to any claim being made or certificate provided.

Having summarised the submissions on this issue, I turn now to consider the applicable legislative framework.

Section 160 of the Act provides that where a worker’s incapacity for work ‘results from, or is materially contributed to by, an injury which entitles the worker to compensation’, compensation is payable in the form of weekly payments.

Section 161 provides, with respect to the first entitlement period, that ‘the worker is entitled … while incapacitated for work during the … entitlement period, to weekly payments …’ and then sets out in sub-sections (a) and (b), the bases for calculation based on either ‘current work capacity’ and ‘no current work capacity’.

Sections 162 and 163 set out like provisions with respect to the second and subsequent entitlement periods.

Various definitions are contained in Division 1 of Part 5 of the Act relevant to weekly payments.

Section 152 sets out definitions of ‘first entitlement period’ and ‘second entitlement period’. Each period is similarly defined to mean ‘an aggregate period … (whether or not consecutive) in respect of which a weekly payment has been paid or is payable to the worker’.

The reference to weekly payments being ‘paid or payable’ reflects the wording of the predecessor provision being s 93B(3A) (subsequently repealed) of the Accident Compensation Act 1985 (the AC Act).

That provision was inserted into the AC Act by Act 7 of 1996. It is plain from the Second Reading speech that one of Parliament’s primary aims included: ‘Second, to alter the basis of calculating the period of a worker’s entitlement to long-term weekly payments so as not to disadvantage incapacitated workers that return to work’.[3]
[3]Victoria, Parliamentary Debates, Legislative Council, 5 June 1996, 385-386 (Hon. R.M. Hallam).

Before that, a worker’s entitlement period would cease upon having been ‘incapacitated for 104 weeks’. See for example, the decision of McGown v Victorian Workcover Authority (McGown)[4] which is referred to at paragraph [s93B.4] of the Lex Nexus Accident Compensation Vic publication.
[4][1995] VCC 20.

It seems to me that the argument made by the employer in this case is really the same as the reasoning of the Court in McGown which preceded the legislative change. To say that the entitlement period coincided with Mr Stankovic’s return to work and remaining at work notwithstanding a capacity for only modified duties (as I have found), is contrary to Parliament’s very intention in legislating to alter the definition of entitlement periods to include the words ‘paid or payable’.

Neither Counsel could refer me to any authorities that have considered what is meant by the phrase ‘paid or is payable’.

In a different context, in McCluskey v A B Oxford Managers Pty Ltd, Magistrate Wright considered the words ‘paid or payable’ and the intention of Parliament with regards to the ‘enhancement period’ brought about by Act 107 of 1997. There, His Honour concluded that ‘the words, “paid or payable” did not cover payments made by an employer outside the strict provisions of the Act’.[5]
[5][2017] VMC 002 [34].

To my mind, that is really what happened here. In summary, the evidence in the case was as follows:

a. Arc was notified on the day of the incident that Mr Stankovic has suffered an injury in the workplace in compensable circumstances - a deep finger laceration due to a circular saw accident.

b. Arc took him to hospital where he required surgery and wrote directly to the hospital to cover surgery costs and then paid for hand therapy expenses for several months;

c. Arc paid full wages while he was off work and accepted his return to work apparently without any formal clearance as to capacity; and

d. Finally, Arc had the benefit of that situation continuing for some eighteen months without any enquiry of the worker as to any ongoing restrictions or consequences of the incident.

I conclude that Arc, based on these matters, has effectively made payments of wages to Mr Stankovic outside the strict provisions of the Act and, on that basis, it seems to me that weekly payments were not ‘paid or payable’ until 2 April 2021.

In essence, Mr Stankovic’s entitlement had not crystallised because of Arc paying for wages and treatment outside the strict provisions of the Act which essentially obviated the need (in a practical sense) for Mr Stankovic to make a WorkCover claim.

Accordingly, I find that the commencement date of the first entitlement is 2 April 2021 which was the date of the first certificate of capacity.

Conclusion

In summary, I conclude that Mr Stankovic had an incapacity for pre-injury duties from the date of the incident with his entitlement commencing on 2 April 2021 for the reasons provided.

I will hear from the parties in relation to final orders.

MAGISTRATE HOARE

16 February 2023