Victorian WorkCover Authority v Kalenjuk - [2017] VSCA 17

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2016 0112

VICTORIAN WORKCOVER AUTHORITY	Applicant
v
OLGA KALENJUK	Respondent

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JUDGES:	SANTAMARIA and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 February 2017
DATE OF JUDGMENT:	16 February 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 17
JUDGMENT APPEALED FROM:	[2016] VCC 948 (Judge Bowman)

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ACCIDENT COMPENSATION – Appeal – Workplace injury – Serious injury – Serious injury application – Elbow injury – Epicondylitis – Whether worker’s epicondylitis had recovered – Whether worker’s injury continued to have a substantial organic basis – Disentangling physical consequences from psychological consequences – Whether judge was correct in concluding that there was ongoing epicondylitis or organic elbow injury – No error in judge’s conclusion – Reasons for judgment – Whether reasons adequate – No inadequacy in judge’s reasons – Appeal dismissed – Accident Compensation Act 1985 s 134AB.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J P Gorton QC with Mr M J Hooper	Wisewould Mahony
For the Respondent	Mr J H Mighell QC with Mr S J Carson	Maurice Blackburn

SANTAMARIA JA

BEACH JA:

In May 2009, Olga Kalenjuk, the respondent, commenced employment with Enterprise Contractor Services (Vic) Pty Ltd. Her employment involved performing cleaning work at the Ford Motor Company. In 2010, while vacuuming in the course of her employment, the respondent developed right elbow pain. In March 2011, the respondent ceased work. After initial examinations and investigations, the respondent was found to be suffering from epicondylitis affecting her right elbow.

In June 2015, the respondent commenced a proceeding in the County Court against the Victorian WorkCover Authority, the applicant, seeking leave pursuant to s 134AB(16)(b) of the Accident Compensation Act 1985 (‘the Act’) to commence a proceeding at common law claiming damages. The respondent relied upon paragraphs (a) and (c) of the definition of ‘serious injury’ contained in s 134AB(37) of the Act.[1] The injury relied upon by the respondent for the purpose of paragraph (a) of the definition was the injury to her right elbow. So far as paragraph (c) of the definition was concerned, the respondent alleged that she had suffered an exacerbation of a pre-existing and previously well-controlled bipolar disorder arising out of her employment.
[1]The expression ‘serious injury’ is defined in paragraph (a) of its definition to mean ‘permanent serious impairment of a body function’, and in paragraph (c) to mean ‘permanent severe mental or permanent severe behavioural disturbance or disorder’.

The respondent’s application was heard in the County Court by Judge Bowman over two days in June 2016. The respondent was the only witness to give oral evidence and to be cross-examined. The parties otherwise tendered medical reports and notes from clinical files. The respondent only sought leave to commence a proceeding claiming ‘pain and suffering damages’.[2] She did not seek leave to claim pecuniary loss damages.
[2]As that expression is defined in s 134AB(37) of the Act.

On the hearing of the application, there was no issue that the respondent had initially suffered a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] VSCA 17
Decision Date: 16 February 2017

CaseChat Overview and Summary

The Victorian WorkCover Authority sought to appeal a decision regarding a worker’s entitlement to ongoing injury payments, with the respondent being Kalenjuk. The dispute centred on whether the worker’s elbow injury, specifically epicondylitis, had fully recovered or continued to have a substantial organic basis. The matter was heard in the Court of Appeal of the Supreme Court of Victoria.

The primary legal issues the court had to address were whether the trial judge correctly concluded that the worker’s epicondylitis still had an ongoing organic basis, and whether the judge’s reasons for judgment were adequate. The court needed to determine if the physical consequences of the injury were distinguishable from any psychological consequences and if the worker's injury continued to meet the criteria for a serious injury under the Accident Compensation Act 1985.

The Court of Appeal found no error in the judge's conclusion that the worker's injury continued to have a substantial organic basis. The court reviewed the evidence and determined that the judge's reasons were thorough and sufficient. The appeal was dismissed, affirming that the worker's elbow injury still had an ongoing organic basis, thus maintaining the entitlement to injury payments. The decision underscored the importance of accurately distinguishing between physical and psychological consequences in assessing ongoing injury claims.

Orders