ACCIDENT COMPENSATION – Appeal – Workplace injury – Serious injury – Serious injury application – Loss of earning capacity – Whether applicant would continue permanently to have loss of earning capacity of 40 per cent or more – Medical panels – Medical panel opinions – Relevance of medical panel reasons – Admissibility of medical panel reasons – Issue of permanence of particular incapacities falling to be dealt with upon whole of evidence – Evidence established that applicant would continue permanently to have loss of earning capacity of 40 per cent or more – Applicant granted leave to commence proceeding claiming pecuniary loss damages – Workplace Injury Rehabilitation and Compensation Act 2013, ss 272 and 313 – Accident Compensation Act 1985, ss 134AB(16)(b), (37) and (38)(e)-(f).
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APPEARANCES:
Counsel
Solicitors
For the Applicant
Mr A D B Ingram with Ms C F Moore
Verduci Lawyers
For the Respondent
Mr M F Wheelahan QC with Ms B L Hutchins
Russell Kennedy
PRIEST JA
BEACH JA NIALL JA:
On 29 January 2011, in the course of his employment with Princes Laundry Services Pty Ltd, the applicant was lifting six blankets from one trolley to another when he suffered an injury to his lower back.
By an originating motion filed in the County Court on 18 September 2015, the applicant sought leave, pursuant to s 134AB(16)(b) of the Accident Compensation Act 1985 (‘the AC Act’) to commence a proceeding at common law claiming damages in respect of the injury he sustained on 29 January 2011. The applicant relied upon paragraphs (a) and (c) of the definition of ‘serious injury’ contained in s 134AB(37) of the AC Act.[1]
[1]The expression ‘serious injury’ is defined in paragraph (a) of its definition to mean ‘permanent serious impairment or loss of a body function’, and in paragraph (c) to mean ‘permanent severe mental or permanent severe behavioural disturbance or disorder’.
The physical injury relied upon by the applicant for the purpose of paragraph (a) of the definition was described in particulars provided by the applicant as:
(a) Injury to the lower back with radiation into the left leg;
(b) Impairment of the function of the lumbar spine.
The psychiatric injury relied upon for the purpose of paragraph (c) of the definition was described in the same particulars as ‘Psychiatric condition’.
The applicant’s application was heard in the County Court by Judge Lauritsen on 27 June 2017. In the course of the application, counsel for the applicant told the judge that, while the applicant sought leave to commence a proceeding claiming both ‘pain and suffering damages’ and ‘pecuniary loss damages’,[2] the claim in respect of pecuniary loss damages was only being…
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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AGLC
Tilahun Yirga-Denbu v Victorian WorkCover Authority [2018] VSCA 35
Case
[2018] VSCA 35
Decision Date
CaseChat Overview and Summary
Yirga-Denbu sought compensation for a workplace injury that resulted in a serious injury under the Workplace Injury Rehabilitation and Compensation Act 2013. The case reached the court as an appeal, focusing on the applicant's loss of earning capacity. The central issue was whether the applicant would continue to have a loss of earning capacity of 40 per cent or more permanently. The court also examined the admissibility and relevance of the opinions provided by medical panels, as well as the extent to which these opinions could be considered in determining the permanence of specific incapacities.
The court held that the issue of the permanence of particular incapacities was to be resolved based on the entire body of evidence. It found that the evidence presented established that the applicant would indeed continue to have a loss of earning capacity of 40 per cent or more permanently. Consequently, the court granted the applicant leave to commence proceedings for pecuniary loss damages. The court's analysis was grounded in sections 272 and 313 of the Workplace Injury Rehabilitation and Compensation Act 2013, as well as sections 134AB(16)(b), (37), and (38)(e)-(f) of the Accident Compensation Act 1985.
This decision underscored the importance of a comprehensive evaluation of all evidence when determining the permanence of specific incapacities in serious injury cases. It also highlighted that the reasons provided by medical panels, while influential, should be considered alongside other evidence to reach a well-rounded conclusion. The court's ruling paved the way for the applicant to seek further compensation for the established permanent loss of earning capacity.