Latest case updates for self-insurers - September 2024

McPhee v Steelsmith Engineering Pty Ltd [2024] VSC 254 

The worker had an accepted claim for a left knee injury sustained on 11 November 2004 and his weekly payments were terminated after 130 weeks on 5 May 2011. The worker sought reinstatement of his weekly payments and the dispute resolved by way of terms that his weekly payments were to continue from 19 August 2011 to 16 April 2012 with no interest payable. 

The worker subsequently lodged a further claim in January 2018, which included an alleged left knee injury. The claim was rejected on the basis the worker had already been compensated for a left knee injury. The decision was again disputed by the worker and questions were referred to a Medical Panel who determined the worker was suffering from a left knee dysfunction, whereby employment was a significant and contributing factor, and which caused the worker to have no current work capacity since 17 April 2012. The employer was ordered to pay the worker weekly payments of compensation from 17 April 2012 to date and continuing in accordance with the Accident Compensation Act 1985 (Vic) (the Act).

The worker was paid $4,011 for interest on the weekly payments; however, claimed that in accordance with section 114E(1)(b) of the Act, he was entitled to interest from the day on which his incapacity commenced on 17 April 2012 until the day of the order, amounting to $148,350.81. The parties were unable to agree to interest, resulting in the worker’s claim being heard by the court.

Section 114E(1)(b) of the Act provides that if a decision to reject a claim for weekly payments is set aside by the court, the outstanding weekly payments and any interest on the outstanding weekly payments are payable from the day on which the incapacity commenced until the day the decision is set aside. This section mirrors section 193(1)(b) of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (WIRC Act).

Magistrate Hoare rejected the worker’s claim for interest and found that section 114E(1)(b) was not enlivened because the decision was a refusal of reinstatement of weekly payments, not a decision to reject a claim for weekly payments, and as orders were made by consent adopting the Medical Panel’s opinion, the decision had not been set aside by a court. 

The worker appealed Magistrate Hoare’s decision. The Honourable Associate Justice Daly heard the appeal and found in favour of the worker on all three issues as follows, namely that:

• the decision was a decision to reject the 2018 claim, not a rejection of a reinstatement of weekly payments request;
• section 114E(1)(b) would also apply to requests for reinstatement of weekly payments from a previously accepted injury. Analysing the Court of Appeal’s decision in O’Brien Transport Services Pty Ltd v Williams [2022] VSCA 62, adopting a non-technical approach to the reference ‘claim for weekly payments’ in section 114E(1)(b) would extend the operation of ‘claim’ beyond new claims; and
• the effect of the consent order was to set aside the decision. Adopting the Panel’s opinion by the court reversed the decision and applied the Medical Panel opinion. 

The Honourable Associate Justice Daly’s non-technical interpretation of section 114E(1)(b) has confirmed interest would be payable on weekly payments where the orders made setting aside a rejection of a reinstatement of weekly payments was due to a Medical Panel opinion.

Rossington v Hungry Hampers Catering [2024] VMC 6 (11 April 2024) 

The worker suffered injury to his right shoulder in the course of his employment with the employer in 2018 (2018 injury). Liability was accepted.

In March 2020, the worker lodged a claim for impairment benefits for the 2018 injury and liability was accepted. Ultimately, a Medical Panel assessed the worker’s whole person impairment (WPI) at 7 per cent. 

A second notice was issued, which determined the worker’s WPI at 7 per cent equating to a $17,216 entitlement. However, this sum was reduced to $Nil after a deduction was made of $23,116 reflecting a prior lump sum entitlement paid to the worker for a right shoulder injury sustained in 2011 (2011 injury), under section 217(4) of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (WIRC Act). Despite the Medical Panel’s opinion that no apportionment was required for an unrelated injury or cause, the agent considered the worker’s impairment was a recurrence, aggravation, acceleration, exacerbation or deterioration of the 2011 injury. The court, however, considered the evidence as a whole established the 2018 injury was a new injury. 

The court found the agent had unlawfully failed to adopt and apply the Medical Panel’s opinion in accordance with section 313(4) and failed to accept the opinion as final and conclusive. Further, the court also found the agent applied section 217(4) impermissibly because the requisite element of ‘recurrence, aggravation, acceleration, exacerbation or deterioration of the injury’ was absent. 

The learning in this case is that section 217(4) cannot be applied unless a Medical Panel’s decision also supports that a deduction is required. Further, more generally this case is an important reminder that Medical Panel opinions are binding and are required to be accepted as final and conclusive. A Magistrates’ Court cannot reconsider, effectively or actually, a Panel opinion. If an agent or self-insurer wants to challenge a Medical Panel opinion, it must take the appropriate steps to seek judicial review in a superior court. 

Rossington v Hungry Hampers Catering (No 2) [2024] VMC 7 (29 April 2024)

Shortly after the court handed down its decision, the worker sought to increase his lump sum compensation as he had included, in his prayer of relief, a claim for interest and costs.  The worker sought compensation of $1,721.60, representing an increase of one-tenth of the lump sum under section 94(1). 

The employer submitted the agent’s conduct could not be considered unreasonable in the circumstances given it was open for the agent (in their view) to apply the section 217(4) deduction. They further submitted the agent was not responsible for the delay and at all times had acted promptly, unlike the worker who had taken three years to issue proceedings. 

The court agreed with the employer’s submissions and declined to use its discretion to direct that there be compensation paid to the worker under section 94(1). 

Connelly v Transport Accident Commission [2024] VSCA 20 

The Supreme Court has recently found a plaintiff’s right knee injury to be serious, focusing heavily on the potential for future surgery after hearing an appeal from the County Court relating to a serious injury application.  

In 2012, the plaintiff, who was then 24, fell off his pushbike after swerving to avoid a motor vehicle (the accident). He sustained injury to his right knee, resulting in a right knee ACL repair surgery. 

The plaintiff sought leave, under the Transport Accident Act 1986 (Vic) (TAA), to commence common law proceedings for the injuries he sustained as a result of the accident. In his evidence at the hearing, the plaintiff stated that following the accident he was never able to return to running other than for a short distance. The medical evidence from the plaintiff’s treating surgeon was that the plaintiff would likely, in the longer term, require further surgery.  

The County Court was not satisfied that the consequences of the plaintiff’s right knee injury met the ‘very considerable’ test. Aside from some physiotherapy in the six to 12 months after his surgery in 2013, the plaintiff had no other treatment post-surgery. In the reasons for her opinion, Her Honour Judge Clayton stated, ‘as Mr Connelly does not intend to currently undertake arthroscopy, I put it no more highly than a risk that Mr Connelly will require medical intervention in the future.’  

The plaintiff appealed this decision to the Supreme Court, who allowed the appeal and found the plaintiff did in fact have a serious injury. The Supreme Court found the medical evidence established the plaintiff suffered from a significantly disabling condition affecting his right knee, and that condition would likely progress and deteriorate over the remainder of his life. They also considered there was a real risk the progression of his injury would ultimately lead to him having to undergo surgery. Even if surgery was a mere possibility, they would have reached the same conclusion. Accordingly, the serious injury application was granted, notwithstanding Judge Clayton’s ‘exemplary’ reasoning.

In hearing the appeal, the Supreme Court also commented on the appropriate test to be applied, noting that on appeal they are required to conduct a real review of the evidence and to give the judgment which, in its opinion, ought to have been given in the first instance.  They stated that an appellant is no longer required to show the decision was plainly wrong or wholly erroneous and cannot be maintained. Instead, the applicable standard is the ‘correctness’ standard, which involves determining the one legally permissible answer to the question of whether the plaintiff has a serious injury or not, even though that will involve a value judgment from the appeal court. 

This judgment is a useful reminder of the importance of potential future surgery in determining a serious injury application. It is important to understand the significance of a medical condition and if it is likely to progress and/or deteriorate over time. For example, is surgery something that is perhaps just mentioned or something that might actually come to fruition at a later time based on the current evidence. It also provides further insight into how serious injury appeals are determined.

Al-Najle v KM Logistics & Services Pty Ltd [2024] VMC 5 

The court was tasked with resolving a factual dispute about the reasonable ordinary earnings of a worker, but for the injury, as required by section 153(2)(a) of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (WIRC Act). 

The employer was a contractor who provided logistics and transport services to a larger food logistics company. The employer placed an advertisement online seeking individuals to work on a casual basis as pick packers. After seeing the advertisement, the worker telephoned the employer and, by mutual agreement, he attended the workplace the same morning. The worker was injured that afternoon. 

The worker’s claim for compensation was accepted and the agent assessed the PIAWE at a rate of $131 per week. The worker disputed the decision and submitted that he was contracted to work four days a week at a rate of $27-$28 per hour from the hours of 3.00pm to 11.00pm and therefore his PIAWE should be assessed higher. The employer submitted that work arrangement was only for one day of work on a Sunday, at a rate of $25 per hour for four hours. 

The worker disputed this assertion and submitted that during the initial telephone conversation there was an agreement of 35 hours per week over four days of work. The worker submitted he would not have accepted the role if the work was only one day, as the travel time to get to the worksite was one hour and 45 minutes and therefore would not justify the limited renumeration. The worker also submitted that when he attended the worksite he was shown a contract that reflected rate of pay and hours that was discussed over the telephone. However, this contract was not signed by the worker, as the office was closed for the Sunday and there was an agreement to sign the contact on the Monday, which did not occur due to the injury. 

The employer submitted the worker was one of three people who were shortlisted from the advertisement. All three individuals attended the Sunday in question and were shown the work duties and told the work was for one day at a rate of $25. The employer submitted that, due to the injury, the worker was not hired but the other two attendants were and the business records show they were paid a rate of $25 for four hours of work for one day per week.  

The court held the burden of proof lay with the worker to establish he had an entitlement to weekly payments based on a higher PIAWE than assessed by agent and ultimately decided in favour of the employer. The court found the worker to be an uncredible witness who gave evidence that was often exaggerated, inconsistent and self-serving. The court also placed significant weight on the pay records of the employer, which indicated that two comparable employees were paid at the rate of $25 per hour for four hours of work on Sundays. This case highlights the importance of record keeping and is a reminder that the onus is on the worker to establish they have a higher PIAWE than that assessed by the self-insurer if a dispute arises. 

The Queensland Court of Appeal recently revisited the strict limitations on the entitlement to claim common law damages arising from injuries to workers as imposed by section 237 of the Workers' Compensation and Rehabilitation Act 2003 (Qld) (WCR Act).

In Greenall v Amaca Pty Ltd and Ors (2024) QCA 132, the plaintiff, Mrs Greenall, sought to claim damages against Amaca arising from the death of her husband, a former Amaca employee who contracted and died of mesothelioma from exposure to asbestos during the course of his employment with Amaca.

At the time of the worker’s death, the plaintiff was not completely or partially financially dependent on her husband’s earnings. As such, she did not meet the definition of ‘dependent’ under section 27 of the WCR Act. Consequently, the plaintiff did not qualify as one of the persons entitled to bring a common law claim under the gateway provision of section 237 of the WCR Act. 

The plaintiff sought to bypass the WCR Act, to commence a claim for damages against Amaca on the basis that she was entitled to damages for the loss of her late husband’s gratuitous services around the home, under section 64 of the Civil Proceedings Act 2011 (Qld) (CP Act). This section incorporated the ‘wrongful death’ claim previously known as a Lord Campbell’s Act action.

For the purposes of the appeal, Amaca admitted liability with respect to the negligence causative of the plaintiff’s husband’s death. It was also common ground that section 64 of the CP Act gives rise to an entitlement to claim damages for a dependency claim for loss of for gratuitous services. 

However, the judge at first instance rejected the plaintiff’s claim because of the specific wording of section 237 that:

• only the persons listed in section 237 were entitled to seek damages for an injury sustained by a worker;
• only a ‘dependent’ of a deceased worker was entitled to seek damages. This required the claimant to either have received the payment of statutory compensation for the worker’s death under the WCR Act, or a certificate from WorkCover Queensland to the dependent under the WCR Act. Only a ‘dependent’ under the WCR Act was entitled to stator compensation or a certificate under the WCR Act; and
• subsection 237(5) explicitly stated that ‘to remove any doubt, it is declared that subsection (1) (of section 237) abolishes any entitlement of any person not mentioned in the subsection to seek damages for an injury sustained by a worker’.

The plaintiff accepted she was not a ‘dependent’ under the WCR Act, and had not received statutory death benefits under the WCR Act nor a certificate from WorkCover Queensland entitling her to pursue a common law claim. 

The plaintiff argued section 237 only applied to persons who qualified as a ‘dependent’ under the WCR Act, and did not apply to any other persons who might have an independent entitlement at law to seek damages from the circumstances that resulted in the worker’s death. That is, as section 237 of the WCR Act did not apply to the plaintiff’s claim by virtue of the very fact that she was not a ‘dependent’, she was free of the fetters of the WCR Act to recover damages under other legislation, such as section 64 of the CP Act, which operated independently of the WCR Act. 

If the plaintiff’s argument was accepted, then the plaintiff’s claim against Amaca would not be indemnified by WorkCover Queensland, and potentially may not be the subject of a public liability insurance (depending upon the wording of the policy). Such an interpretation would have wider implications, exposing employers to a potential uninsured liability by non-worker claimants.

The Queensland Court of Appeal unanimously rejected this argument and relied upon an unbroken chain of authority since 2001 (including decisions interpreting the predecessor WorkCover Queensland Act 1996) that section 237 of the WCR Act abrogated the plaintiff’s right to seek damages following the death of her husband. The court noted the significance of such a loss of legal entitlement was not to be taken lightly but that the wording of section 237 was undoubtedly designed to abrogate legal rights in many other circumstances as well.

The court emphasised there was a clear and unambiguous statutory purpose expressed in section 237 that the employer not be exposed to liability for damages arising from the death or injury of a worker other than through the narrow gateway of the WCR Act. Accordingly, section 237(1) prevented the plaintiff from bringing an alternative claim under the CP Act, as that claim was abolished by section 237 because it sought damages arising from the injury or death of a worker.

The decision reinforces the previously held law that section 237 is a gateway that must be strictly complied with. The section is to be interpreted as part of the overall workers compensation scheme that exclusively governs the entitlement to compensation and limits the exposure of employers to common law damages arising from injury to their workers.