Wesfarmers Limited v John Moll
[2015] VMC 25
•12 June 2015
| IN THE MAGISTRATES COURT OF VICTORIA |
AT MELBOURNE
F12053106
| WESFARMERS LIMITED | Applicant |
| v | |
| JOHN MOLL | Respondent |
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MAGISTRATE: | Magistrate B.R. Wright |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 9 June 2015 |
DATE OF DECISION: | 12 June 2015 |
CASE MAY BE CITED AS: | Wesfarmers Limited v. John Moll |
REASONS FOR DECISION
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Catchwords:
Workers Compensation – Rejected Claim for Weekly Payments - Application for Revocation of Direction by Conciliation Officer – “Genuine Dispute” – “Arguable Case in Support of Denial of Liability”- Workplace Injury Rehabilitation and Compensation Act ss 297, 298 and 299
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant-Employer | Mr B McKenzie | Wisewould Mahony |
| For the Respondent-Worker | Mr A Saunders | Slater and Gordon |
HIS HONOUR:
1 This is an application for a revocation of a Conciliation Officer's direction pursuant to s.299(2) of the Workplace Injury Rehabilitation and CompensationAct 2013 (“the Act”).
2 On 11 May 2015 a Conciliation Officer directed that weekly payments be made to Mr Moll for a period of 12 weeks from 6 June 2015, exercising his powers pursuant to s.297(3) and (4) of the Act.
3 This application before me is dealt with on a “de novo” basis (see, ACC v Krilis, County Court, Judge Rendit, unreported, del. 25 September 1995 at p.26). In addition, this court can consider fresh material not before the Conciliation Officer at the time (see, Krilis (supra) at p.30). Both parties agree on these two aspects.
4 The dispute before the conciliation officer arose out of a 130 week Notice to Terminate weekly payments dated 2 March 2015, effective as at 3 June 2015, on the basis that it was alleged that Mr Moll either had a “current work capacity” or “no current work capacity” not likely to continue indefinitely. The essential facts including applicable dates were not in dispute before me.
5 Mr Moll is currently aged 53 years old and was employed by Wesfarmers as supermarket night filler. On or about 6 September 2012 he sustained an injury to his low back and lodged a claim form on 18 December 2012. It was agreed that liability was admitted for the claim and he had not worked since 22 September 2012. However, there is reference in some of the medical material before me of a short attempt at return to work on light duties.
6 A number of medical reports were exhibited to the affidavit in support of the application. In addition, the Conciliation Officer’s direction referred to some further medical report material. Both Counsel referred to such medical material in their respective submissions. I will summarise the relevant medical and lay material. The earlier medical material prior to the direction was also summarised in the Conciliation Officer's outcome certificate.
7 On 26 July 2013, Mr Moll underwent a discectomy at L4-5 level (“the first operation”). Because of continuing problems, he was referred to Mr Craig Timms, a neurosurgeon. He undertook a fusion procedure at the same L4-5 level on 21 July 2014 (“the second operation”).
8 He was assessed by Dr Dominic Yong who calls himself a "specialist occupational physician" on 1 December 2014 (“his first report”). Dr Yong took a history of that "his symptoms have persisted" and that his surgeon had recommended an operation at a different level. Dr Yong thought that the ongoing symptoms related to a symptomatic L5-S1 disc and that the fusion to the L4-5 level had led to increasing forces to the adjacent levels. This was also a contributing factor to the symptomatic L5-S1 disc, together with age and constitutional factors.
9 Dr Yong thought that he had a “current work capacity” at that stage to perform tasks with restrictions, namely, (1) To avoid repeated bending and twisting in the back; (2) avoid repeated firm pushing and pulling; (3) avoid lifting more than five kilos on a repeated basis and (4) varying posture regularly between sitting, standing and walking. He thought that Mr Moll would require restriction of working hours to work initially three hours per day, three days per week. He thought that if Mr Moll was to proceed with an operation, it was likely his rehabilitation post-operatively would be for a six to nine month period afterwards.
10
Mr Moll was then assessed for vocational assessment purposes by a Therese Lovell, who refers to herself as a “rehabilitation consultant”, at Nabenet on
the following day, 2 December 2014. I do not know her qualifications, experience or claimed expertise, as these details are not included in her report.
11 In any event, she had an extremely limited range of medical material for purposes of the assessment. She had a medical certificate and a brief telephone conversation with Mr Moll's GP who told her he required further rehabilitation before he would be fit for work of any kind, though suitable employment options as later detailed "are suitable pending further treatment and recovery".
12 She also had a medical report dated 20 February 2014 from Mr Kendall Francis, a consultant independent medical examiner surgeon, who had examined Mr Moll as far back as about February 2014. Mr Francis thought that Mr Moll had no work capacity then and thought he would need to improve his degree of pain and back movement limitation, both of which were severely incapacitating him.
13 Ms Lovell was told of his two operations, the first operation before Mr Francis' examination and the second operation after Mr Francis' examination. She also took a history from Mr Moll that his surgeon "reportedly suggested he may need further surgery at L5-S1". She also took a current history of central lower back pain predominately in the sacral region, right foot numbness and occasional faecal incontinence. The significance of these symptoms and the reported suggestion of further surgery did not seem to impact on her opinion as stated in the report.
14 She stated in her report "Nabenet have identified the following suitable employment options for him. (1) Customer service representative for home; (2) administrative assistant; (3) call centre operator; (4) cashier office or restaurant and (5) bank worker". Because he was still certified with “no current work capacity”, new employment services were not recommended by her.
15 I note that his employment with Wesfarmers appears to have been terminated as at October 2014, according to Mr Moll’s history to Dr Yong. She made no suggestion as to any restrictions or graduated days or hours to return to work on those employment options.
16
Her report was referred back to Dr Yong who in a medical report of
19 January 2015 (“his second report”), thought that the suggested employment options "would comply with the restrictions and would be considered reasonable". He made no comment on graduated hours or days for that return to work. He did not re-examine Mr Moll for the purpose of his second report or refer to the symptoms of right foot numbness and occasional faecal incontinence in Nabenet’s report, of which there is no note in his first report.
17 The Notice of Termination dated 2 March 2015, referring to Mr Yong's two medical reports and the Nabenet vocational assessment report as part of the grounds for the decision, was then issued and served on Mr Moll.
18 However, in the interim period on 19 January 2015 Mr Moll underwent a third surgical procedure on his back, namely an L5-S1 fusion procedure (“the third operation”). According to the Conciliation Officer, Mr Timms reported on 9 February 2015 that Mr Moll was then in the acute post-operative phase after major reconstructive surgery of his spine. He hoped that approximately three months post-operatively Mr Moll was likely to have some capacity to return to work on alternative to light duties on reduced hours. It was likely he would take the full 12 months for his symptoms to stabilise. He thought no predications of capacity nor long-term prognosis could reasonably be given at that stage.
19 On 11 May 2015, the Conciliation Officer then issued his direction to make weekly payments.
20 Wesfarmers then had Mr Moll re-examined on 27 May 2015 by Dr Yong who took a history of the third operation on 19 January 2015. In his subsequent report (“his third report”), he noted that Mr Moll had stated he had started a swimming program about six to eight weeks after the surgery. After about one month (which would make it about mid-April 2015), he had a flare-up in symptoms with what was reported as a burning sensation in his lower back. Mr Timms had referred him to have further scans and advised him to cease Pilates and exercises.
21
Dr Yong in his third report repeated those aspects in his summary and also noted complications suggestive of a psychological comorbidity and said
Mr Moll had commenced counselling. In his third report, Dr Yong now stated that Mr Moll did not have any current work capacity and had what he had referred to as a "temporary total incapacity" for work which would cease as the flare-up continued to resolve as he proceeded down an activity-based program. After the flare-up resolved he would be advised to restart his post-operative rehabilitation program on a graduated basis which he "anticipated" would be in the coming weeks (my emphasis).
22 If the post-operative rehabilitation program did not lead to further improvement, then Dr Yong considered a referral to a rehabilitation physician would be indicated to consider a multi-disciplinary program. He did not think that the suggestion of employment options in the Nabenet vocational assessment report were "relevant".
23 He was then sent a letter from the applicant's solicitors, the contents of which are unknown, and was asked for a supplementary report. He did not re-examine Mr Moll again.
24 In this further report (“his fourth report”), he now stated that "over the following few months" (my emphasis), as opposed to weeks in the earlier report, his flare-up "should improve with the current conservative measures". He said that the "plan" would be to recommence his rehabilitation therapies and go down an activity-based program. If this did not lead to any further improvement, then referral to a rehabilitation specialist "is indicated" to consider a multi-disciplinary rehabilitation program. "It would be approximately around this time he would develop a capacity for suitable employment." He "envisaged" this would take approximately three months. Despite being asked specifically for the purposes of his third and fourth reports, he made no further comment as to suitability for the employment options identified in the Nabenet report. That completes the medical and other material in this application.
25 The applicant submitted that I should be satisfied pursuant to s.298(2) of the Act that there is a “genuine dispute” in this case in that there is an “arguable case” in support of the denial of liability for continuing payments of weekly compensation.
26 I was referred to a number of authorities as to “genuine dispute” such as Somerville v Vi [2008] VSC 89 per Justice Kyrou and QBE v Keep (Magistrates Court, Lauritsen DCM, unreported, del. 24 July 2009). In addition, I was referred to my decision in Allianz v Scandolera (del. 29 May 2012) in which I referred to those other two decisions.
27 In particular, Justice Kyrou refers to the need for a court to exercise great care and require the party to satisfy the court on the first party's evidence that there is no real question to be tried. Mr Lauritsen, then DCM, stated that the lack of a defence must be clearly demonstrated.
28 Mr Moll's Counsel did not seek to argue any differently as to the required test.
29 Counsel for Wesfarmers stated that the real basis of the termination was that Mr Moll's present “no current work capacity” was not likely to last indefinitely in view of the fact that Dr Yong agreed that Mr Moll had no work capacity “at present” only. He referred to the definition of “indefinitely” stated by Judge G.D. Lewis in Mitrovska v Berkeley Apparel [2006] VCC 1068 at para. 7, as "for the foreseeable future".
30 Further, in Woolworths v Jeffreys [2007] VSC 45 Hansen J at para.14 referred to the Oxford English Dictionary definition of “indefinitely” as "not clearly expressed or defined, vague, lasting for an unknown or unstated length of time".
31 Counsel for Wesfarmers also referred to two decisions which proceeded on the issue of “indefinitely” in post-130 week case circumstances, namely Evans v Scope (Magistrates Court, Magistrate Garnett, del. 4 March 2011) and Pearce v Victoria Carpets, a decision delivered by me on 16 December 2014. Both of those decisions proceeded on the merits of the respective cases. In the circumstances, I think that they are of little use in this application and do not take the matter further.
32 He further submitted that on the basis of Dr Yong's third and fourth reports at least that despite the third operation, Mr Moll's present no work capacity was not likely to last indefinitely in that in three months' time he would "develop a capacity for suitable employment". He said those jobs were as outlined in Nabenet’s vocational assessment report and Dr Yong's first report. He submitted it was not necessary for me to be satisfied that this argument would succeed, just that there is an “arguable case” in this regard on a prima facie basis.
33 Counsel for Mr Moll submitted that the situation at the time of the service of the Notice of Termination and now is vastly different and that Mr Moll had undergone further major spinal surgery and had a symptomatic flare-up while undertaking rehabilitation swimming. It could not be said that his condition had stabilised. Thus, he submitted that there was no prima facie basis for saying that his present “no current work capacity” was not likely to last indefinitely.
34 He further referred to Dr Yong's third and fourth reports and submitted that Dr Yong’s opinion that Mr Moll would be fit for suitable employment in three months was speculative at best and contingent on a number of factors. According to Dr Yong, he "anticipated" that over the following few months his flare-up "should" improve. He would then have to recommence his rehabilitation therapies and "proceed down" an activity based recovery program. If that did not lead to any further improvement, then a referral to a rehabilitation specialist "is indicated". This would be to "consider" a multi-disciplinary rehabilitation program. Further, he submitted that the suggested employment options in the Nabenet vocational assessment report pre-dated the third operation and were no longer valid, if they ever were.
35 I raised with both Counsel the issue of onus of proof in post-130 week termination cases as discussed by Mr Justice Smith in PTC v Pitts [2007] VSC 356 at para. 17.
"The case was one where it was plainly open to the learned magistrate to conclude that the plaintiff had established a prima facie case that no suitable employment as defined in the legislation existed and so was entitled to succeed in his case unless the defendant produced evidence sufficient to raise some specific alternatives for consideration. In my view, the reality was that the defendant had to adduce evidence sufficient to raise as a real possibility that there were particular types of employment available in the community which the plaintiff was capable of performing. If it did not, it would lose. Thus there was an evidentiary onus on the defendant on that issue."
36 Thus, it seems to me that the present case is a matter as to whether Wesfarmers had set out an "arguable case" in support of its evidentiary onus on the issue. Both Counsel, not surprisingly, made submissions based on the previously discussed evidence and arguments on this issue.
37 As I have noted, this application is “de novo” as to which neither party disputed. Thus, the original notice and grounds must be considered in the light of the later material as well. Wesfarmers continues to rely on the Nabenet vocational assessment report and Dr Yong's four medical reports in support of its application.
38 Wesfarmers accepts that Mr Moll has “no current work capacity” at present subsequent to his third operation and recent symptomatic flare-up while undergoing his rehabilitation program. It submits that the five employment options are still appropriate for Mr Moll when he recovers from his symptomatic flare-up, restarts his post-operative rehabilitation program on a graduated basis and maybe has a referral to a rehabilitation physician and, if needed, then maybe undergo a multi-disciplinary rehabilitation program. Despite all these intermittent stages, it points to Dr Yong's opinion in his fourth report that he "envisages this would take approximately three months".
39 I agree with Mr Moll's Counsel that Dr Yong's opinion as to future capacity for suitable employment is contingent on satisfactory completion of a number of preliminary stages in his recovery, but also is contingent on whether he has to undertake any or all of those steps. It is difficult to see how Mr Moll's condition has stabilised at present.
40 On Wesfarmers own material, it is uncertain if and when he will have capacity for suitable employment. Merely “envisaging” that this would take approximately three months is insufficient support for its decision to terminate his weekly payments on a 30-week basis.
41 Further, there is even more doubt as to the time frame considered by Dr Yong for recovery to restart his post-operative rehabilitation program. In his third report he said that he would "anticipate that this would be in the coming weeks". However, a few days later in this fourth report, without seeing Mr Moll again, he said he "would anticipate over the following few months his flare-up should improve".
42 In the circumstances, on all the material before me his present “no current work capacity” is likely to last indefinitely at this stage. Taking into account the discussion of that issue in Mitrovska and Jeffreys decisions, it is not a situation of me finding such on the merits. I believe that there is no basis for Wesfarmers to allege to the contrary and there is no “arguable case” on that material.
43 Wesfarmers material in support of its application was also badly defective on a number of other bases as well. The only suggested employment options are those set out in the Nabenet vocational assessment report of 3 December 2014. Ms Lovell, qualifications and expertise unknown, in preparing the report only had a medical certificate and a short telephone conversation with the treating GP who told her that Mr Moll had no current work capacity at present.
44 She also had a nine-month-old report from Mr Francis. Mr Francis also said that Mr Moll had “no current work capacity”. She took a history of intervening back surgery and proposed further surgery. In addition, she noted a history of central low back pain with right foot numbness and occasional faecal incontinence.
45 I would have thought that such symptoms should have been a matter of major concern for any competent rehabilitation consultant, certainly together with the fact of intervening surgery and the anticipated further surgery.
46 Despite having no supporting medical material as to physical limitations or findings and the only material being that he had “no current work capacity”, she volunteered five suitable employment options without any timeframe or need for graduated return to work. She recommended a new employment service referral "once a current work capacity exists".
47 It is difficult to see how her opinion has any credibility taking into account those circumstances. At the very least, I do not consider her report constitutes the basis of an arguable case for those suggested employment options.
48 I accept however that Dr Yong did later endorse those options to a certain degree, then stating "it is likely that the tasks would comply with the restrictions and would be considered reasonable". I do not think that this retrospectively validates her opinion on the material that she had before her at the time.
49 However, the later circumstances appear to have altered Dr Yong's opinion. In his third report after the third operation, he was specifically asked about current work capacity and the five employment options again. He now stated, as opposed to in the second report, that Mr Moll had “no current work capacity”. He then specifically says that given that opinion, the question as to a capacity for the five employment options "is not relevant". He understandably does not address those five employment options again in his fourth report.
50 Thus, on the basis of the further material, there is no material as to suitable employment options for Mr Moll even if and when he recovers sufficiently for suitable employment to be considered. This is speculative as well. Thus, I find there is no arguable case as to whether the applicant could satisfy or would satisfy the evidentiary onus on that issue as well.
51 Overall, pursuant to the appropriate tests for there to be a “genuine dispute” as set out in the above cited two decisions, I am not satisfied that there is a “genuine dispute” or an “arguable case” as to the denial of liability of the applicant to continue to make weekly payments.
52 The application for revocation is dismissed.
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