Latest case updates for self-insurers – April 2022

By Ilona Strong, Andrew Stamp and Grace Bowran-Burge

In our latest update for self-insurers, we look at some recent cases, including the difference between a psychological and psychiatric injury, whether there was negligence involved in a kerbside fall, why perception is paramount in relation to psychiatric injuries and statutory benefit claims, and whether an evidentiary dispute is required for a medical panel referral to be made.

The Supreme Court recently considered a request for judicial review in respect of a Medical Panel decision. A primary ground for appeal related to whether there was a distinction between a ‘psychiatric injury’ and a ‘psychological injury’.

In Moutray v The Union Pastoral Co Pty Ltd [2021] VSC 723, the Plaintiff commenced proceedings in the Magistrates’ Court claiming she sustained a compensable injury and had no work capacity. The Medical Panel was asked whether the Plaintiff had a consequential psychological injury. The Panel stated ‘no psychiatric condition’. On appeal, the Plaintiff submitted that the Panel, in answering that the Plaintiff had no psychiatric condition, failed to answer the question about a psychological injury.

The Supreme Court found the Panel did not err in answering the question of psychological injury with a response of ‘no psychiatric condition’ given a psychiatrist was on the Medical Panel.  Further, both the Plaintiff and Defendant addressed in their submissions whether the Plaintiff had an injury ‘of the mind’. Instead, the Supreme Court ruled that the Panel’s answer of ‘no psychiatric condition’ stated ‘quite plainly’ that there was no injury or condition of the mind consequential to the original claimed injury.

The Plaintiff also submitted that the Medical Panel ought to have determined whether the pain she complained of was genuine or feigned. The Supreme Court disagreed with this, finding it was sufficient that the Panel determined that even if some degree of pain was present, it was not sufficiently severe or persistent to support a diagnosis of an injury. The Court also reinforced the accepted legal principle that subjective reports of pain are not the same thing as a diagnosable injury or a diagnosable psychiatric disorder.

While care should always be taken in the choice of words, particularly when referring to an injury, the case serves as a reminder that courts will look at the context in which words are used. In this case, it was clear the Panel was focused upon the existence of any illness or disease of the mind.

Hall & Wilcox recently successfully defended a damages proceeding where the Plaintiff sustained a right ankle injury after tripping on a shallow kerb.

In Timothy Hooper v Universal Civil Staff Pty Ltd [2021] VCC 1757, the Plaintiff was working as a labourer on a construction site. His job was to provide a general clean-up of debris. In the process of trying to load a piece of timber into the back of an excavator, he took a step backwards, tripping on a kerb. His foot ended up in an excavation that was to become a garden bed. The Plaintiff rolled his right ankle and ultimately required surgery. Since the incident, he has remained mostly off work.

At the trial, the Plaintiff alleged the Defendant ought to have identified the garden bed as a hazard and accordingly, should have erected a tape barrier or parawebbing around it.

The Defendant argued the unfilled garden bed was not a hazard and that the injury was not foreseeable. In addition, the Defendant asserted that the Plaintiff was aware of the garden bed and ought to have looked behind him before taking a step backwards.

His Honour Judge Purcell found there was a relevant risk of a person stepping backwards into the unfilled garden bed, but no warning of this risk was needed. In particular, the kerb and garden bed were known to the Plaintiff. The erection of a tape barrier or parawebbing would not have prevented the injury because, in stepping backwards, the Plaintiff would not have seen any tape or webbing, and nor would it have physically prevented the fall. There was also no evidence that the garden bed posed a risk to anybody walking forwards such that taping or webbing should have been installed to guard against such a risk. Ultimately, His Honour described the incident as an ‘unfortunate accident and not one which an employer exercising reasonable care would have been expected to have foreseen and guard against’.

As noted by His Honour, the standard of care imposed on employers is not a standard of perfection, and instead a standard of reasonable care. In the circumstances, reasonable care did not extend to requiring the Defendant to prospectively identify hazards that might exist if people walked backwards without keeping a proper lookout.

The Magistrates’ Court of Victoria recently found in favour of a Plaintiff who alleged a psychiatric injury arising out of her employment. This judgment reinforces the legal principle that, in statutory benefit disputes regarding psychiatric injuries, it is the plaintiff’s perception of the events that is critical.

In Hell v Parks Victoria [2022] VMC 1, the Plaintiff alleged she suffered a psychiatric injury arising out of her employment. The Plaintiff claimed she was unable to cope with the amount of work and the demands placed on her by her employer. She further claimed to have felt ‘criticised, badgered and micro-managed’ by her direct supervisor. Finally, the Plaintiff claimed that, while she was carrying a pile of plates over to a table, she was given a physical ‘backhander’ on the left shoulder or arm and told by her direct supervisor to be quiet. None of the Plaintiff’s allegations were substantiated by an investigation.

The claim was rejected on the basis that there had been no work-related injury. Further, if there were such an injury, the Plaintiff was not incapacitated for her pre-injury employment.

Magistrate Hoare formed a highly favourable opinion of the Plaintiff’s treating practitioner, given his lengthy experience and long-term clinical relationship with the Plaintiff. Her Honour agreed with his diagnosis of anxiety and depression and found the Plaintiff was incapacitated for her pre-injury employment.

Her Honour also noted she was not required to determine where the truth lay in terms of the allegations, rather to consider whether the Plaintiff perceived, and was affected by, stressors actually arising from the circumstances of her injuries. In doing so, Her Honour referred to the statement of principle in Pulling v Yarra Ranges Shire Council [2018] VSC 248 that it is ‘necessary to consider what [the Plaintiff] perceived about her co-worker’s conduct because, having regard to the no-fault nature of the workers’ compensation system, that casual connection can be established by a subjective perception that has a real connection with the workplace whether or not it is objectively correct’. Accordingly, because the Plaintiff was affected by stressors arising from her perception of bullying, the Plaintiff’s claim was successful.

The case is a useful reminder of the importance of the evidence of treating practitioners as well as the difficulty for employers in defending statutory benefit cases involving a plaintiff’s perception of events.

The Supreme Court of Appeal has recently determined that no evidentiary dispute is required for a matter to be validly referred to a medical panel.

In Baumgartner v Victorian WorkCover Authority [2022] VSCA (2 March 2022), the Applicant lodged a Serious Injury Application in respect of injuries allegedly sustained to her neck and right shoulder, as well as consequential psychiatric injury. The Application was rejected and the Applicant subsequently commenced proceedings in the County Court, seeking a declaration that she had sustained a serious injury. The Respondent sought to refer various questions to the Medical Panel for determination. His Honour Judge Bowman ruled that the provisions permitting a referral to a medical panel are predicated on there being a dispute between the parties that is to be addressed and resolved. As there was no conflict in the medical evidence, His Honour ruled various questions could not be referred to a medical panel.

The Respondent sought judicial review before Her Honour Justice Forbes. Her Honour ruled the County Court had erred in confining the parameters of the dispute to an established conflict in medical evidence. In doing so, Her Honour noted that whether or not a ‘medical dispute’ is raised by the available opinions is, by itself, neither determinative of relevance nor demonstrative of an abuse of process. The entitlement to access an alternative mechanism of dispute resolution cannot be removed by demonstrating that a court, in considering those very issues on the potential evidence to date, might be compelled to a particular conclusion.

The Applicant appealed the Supreme Court’s ruling and submitted that referrals on questions where medical opinions are not in conflict is an abuse of process. The Supreme Court of Appeal dismissed the appeal. In doing so, the Court ruled that referrals to a medical panel are not only available in cases where there is evidence of a medical conflict between the parties. In addition, the fact that a defendant may have obtained evidence that supports the plaintiff’s case on some issues, does not mean those issues are irrelevant or precluded from further investigation.

The case confirms that referrals to the medical panel are made on the basis of what the plaintiff is required to prove to be successful, rather than what the evidence suggests they are likely to establish.


Ilona Strong

Ilona focuses on both statutory and common law claims across both Victorian and Tasmanian workcover legislation.

Andrew Stamp

Andrew practices in personal injury litigation on behalf of self insurers, employers, and WorkSafe Victoria and its agents.

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