Wade v Victorian WorkCover Authority (Ruling as to Costs)
[2025] VCC 105
•17 February 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-24-02981
| BRIANA WADE | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE PILLAY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 February 2025 | |
DATE OF RULING: | 17 February 2025 | |
CASE MAY BE CITED AS: | Wade v Victorian WorkCover Authority (Ruling as to Costs) | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 105 | |
RULING
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Subject:RULING AS TO COSTS
Catchwords: Resolution of the matter on the basis the plaintiff would accept a pain and suffering certificate only – Plaintiff abandoned any claim for loss of earning certification –– plaintiff obtained alternative employment – plaintiff failure to disclose unique nature of employment to doctors
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013 (“WIRC Act”), s134AB(38); WorkCover (Litigated Claims) Legal Costs Order 2016
Cases Cited:Matthews v Latrobe Regional Hospital (Ruling as to Costs) [2021] VCC 1161
Ruling: Application denied
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Brett KC with Mr C Madder | Arnold Thomas & Becker |
| For the Defendant | Mr C Miles | Wisewould Mahony |
HIS HONOUR:
1This matter resolved on the morning the serious injury application by the plaintiff was to be heard. It resolved on the basis that the plaintiff would be granted a pain and suffering certificate pursuant to s134AB(38)(b)(i) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“WIRC Act”). The plaintiff abandoned any claim for loss of earning certification made pursuant to s134AB(38)(b)(ii) of the WIRC Act.
2The plaintiff and defendant agree that by reason of the settlement the plaintiff is entitled to costs in accordance with the WorkCover (Litigated Claims) Legal Costs Order 2016 (“WLCO”). The parties, however, disagreed as to whether there ought be certification of counsels’ fees. This was because the defendant had served a notice pursuant to s4 Part A of the WLCO offering certification for pain and suffering only on 17 October 2024.
Brief relevant chronology
3As the subject of the dispute is so confined it is only necessary to set out very brief relevant key dates.
4The plaintiff was born in 1981 and is a qualified nurse. In 2009 she commenced work with Barwon Health as a Division 1 nurse. She worked fifty-six hours per fortnight doing surgical nursing. Her affidavit material indicated that, as at 2021, she had hoped to increase her hours to approximately seventy-two per fortnight. However she alleges sustaining injury at work in the following terms:
“As a consequence of the nature of her employment and the requirement to perform repetitive, heavy and/or awkward manual handling, particularly on or about 12 December 2020, when she was required to open and close a heavy door to enter and exit the medication room, [she] sustained injury.”[1]
[1]Plaintiff’s Draft Statement of Claim at paragraph [5]
5The injury she sustained was to the cervical spine. Her injury progressed such that on 24 February 2022 she underwent cervical discectomy at the C7-T1 levels.[2] She attempts to return to work, but her symptoms persisted and she underwent a second procedure on 8 December 2022, being a left C7-T1 cervical foraminotomy. After rehabilitation she returned to work with Aspen Medical as a telephone nurse in June 2023. She continued to experience some symptoms and continued to have treatment involving both cervical branch blocks and radiofrequency denervation.[3] The work continued to exacerbate her pain, leading her to cease work with Aspen Medical in December 2023.
[2]Plaintiff’s Court Book (“PCB”) 98
[3]PCB 137, PCB 17
6On 21 December 2023, she launched a serious injury application under both heads, claiming for pain and suffering and loss of earning certification.
7Sometime in January 2024, she commenced employment as a complex care coordinator caring for a patient, who I will refer to as Ms X.
8As indicated, on 17 October 2024 the defendant served an offer in accordance with the WLCO which offered to grant pain and suffering certification but not loss of earnings certification. If that offer was taken, the offer stipulated that costs in accordance with the WLCO would be paid.[4] Obviously the plaintiff did not accept the offer. No response was made to the offer by the plaintiff’s solicitor. No evidence was received by the Court by the plaintiff’s solicitor or by the plaintiff as to their consideration of the offer.
[4]See the bundle exhibit to the affidavit of Caroline Harold, sworn 7 February 2025
9The offer lapsed after twenty-eight days without being accepted.
10On 4 December 2024, a defendant medico-legal practitioner, Dr Majid Raghozar, a consultant occupational physician, reported for the defendant. In that report Dr Raghozar indicated that the plaintiff remained working twenty-four hours per week as a home care coordinator (with Miss X).[5] Dr Raghozar then listed eight occupations for which he considered the plaintiff had capacity for.
[5]Defendant’s Court Book (“DCB”) 27
11On 19 December 2024, the plaintiff swore a supplementary affidavit.[6] In that affidavit, she deposed that her work with Ms X was a unique role: Ms X was born with a gene mutation, was non-verbal and lived in a wheelchair. Further, she required twenty-five people to care for her about twenty-four hours a day. The plaintiff’s role was to manage that care with oversight from Ms X’s father. She deposed that Ms X’s health was fragile and she may die if she caught a cold.[7] She deposed she could not do any of the jobs Dr Raghozar had outlined.
[6]PCB 22
[7]PCB 23-24, Plaintiff’ Supplementary Affidavit sworn 19 December 2024 at paragraphs [11]-[15]
12The matter then came on for hearing, at which time the plaintiff’s counsel announced the resolution of the matter on the basis the plaintiff would accept a pain and suffering certificate only and abandon her claim for loss of earnings certification.
The relevant principles
13The parties agree the relevant principles were set out in the decision of his Honour Judge Parrish in the decision of Matthews v Latrobe Regional Hospital (Ruling as to Costs),[8] particularly at paragraph 38, where his Honour stated:
“I consider that the issue for determination can be stated to be whether the plaintiff’s solicitors acted unreasonably in not accepting the offer contained in the first Notice or the offer contained in the second Notice. It was incumbent upon the solicitors for the plaintiff to assess the material that was available to them at the time that each offer was made, bearing in mind that there was 28 days to accept the offer. … .”
[8][2021] VCC 1161
14In this case the plaintiff submitted that it was reasonable not to accept the offer as, if Ms X died, then the plaintiff’s evidence was that she could not do any other position and therefore would succeed. To this end they submitted the plaintiff only had one opportunity in making a loss of earnings serious injury certification claim and thus it was appropriate to wait until the day of trial to make that determination.
15I do not accept those submissions for the following reasons.
16First, at the date the offer was made the plaintiff had been in the role with Ms X since January 2024, a period of some 9 months. She had not disclosed anything in relation to its unique nature to any of the doctors who had examined her, both for the plaintiff or the defendant, in all that time. These included Professor Paul D’Urso,[9] Dr Eman Awad,[10] Professor Peter Teddy[11] and Dr Rahgozar.[12] Rather, the histories they had taken were of her ability to work as a care coordinator – without reference to the specific circumstance of care for Ms X. They considered this was work for which she had a capacity and which they thought it was appropriate she worked in that area. This leads me to the inevitable conclusion that she certainly did have a capacity to work in income-producing activity – not limited simply to work with Ms X, which meant she could not satisfy the threshold required as at 17 October 2024.
[9]PCB 34
[10]PCB 54
[11]DCB 3
[12]DCB 16
17Second, no specific investigations were made by her solicitors in this period to focus on the confined and precarious nature of her employment caring for Ms X. Such would have been a reasonable step I consider.
18Third, the alternative positions Dr Rahgozar had recommended she had capacity for only became known to her on 4 December 2024. This was after the time the offer had expired. It is completely unclear how the plaintiff’s solicitor could come to the reasonable belief as of 17 October 2024, that the plaintiff had no capacity for these positions as she deposed to in her Affidavit dated 19 December 2024 when they were only ever put in issue after the expiry of the offer. Further, all the medical evidence in existence as of 17 October 2024 determined that she had a capacity for suitable employment.
19Fourth, it was suggested that it was entirely reasonable for the plaintiff to wait until the first day of trial to make this decision to abandon her loss of earnings claim, given she only had one chance at such a claim. However, this is a decision which the plaintiff made, armed with knowledge that she must lose her case if all things remained equal. In that circumstance, she made a forensic decision with attendant costs risks, not to accept the offer. Having made that assessment and forensic decision she is now bound by that choice.
20Alternatively the plaintiff submitted that the offer made on 17 October 2024 was one confined to a specific date (being 20 December 2020) when she had always framed her injury as also comprising a throughout the course of employment claim. On this basis, it was submitted that the plaintiff made a reasonable decision not to accept the offer but to go to trial to receive certification encompassing injury caused throughout the course of employment and also on a specific date. However, there is simply no evidence as to whether or not the plaintiff or her solicitor contemplated this issue at the time the offer was made. I would echo the comments of His Honour Judge Parrish at [31] and [32] of Mathews, that the purpose of the WLCO and the offer process is to promote resolution which saves costs for both the litigant and the public. Bearing this in mind, and with no evidence as to how the plaintiff considered this issue at the time the offer was live, I do not find that it was reasonable for the plaintiff to reject the offer as made.
21For these reasons, I would decline the plaintiff’s application.
22The parties are to file consent orders to give effect to this ruling within two days, failing which the matter can be bought on for short directions.
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