Latest case updates for self-insurers – March 2023
By Ilona Strong and Grace Bowran-Burge
In our latest update for self-insurers, we look at recent cases, including an update on a Tasmanian Supreme Court appeal about an injury sustained during the course of employment; credit issues to be considered in matters involving significant complaints of pain; a useful reminder of the forensic analysis required to determine causation; the complexities that may arise in determining whether an incident is a transport accident; and a case study interpreting the American Medical Association Guides.
The dog and a log case – continued
Nazar v Hydro Electric Corporation [2022] TASFC 11
In our August 2022 newsletter we considered the case of Hydro Electric Corporation v Nazar [2022] TASSC 37. In this case the Tasmanian Supreme Court determined that an injury sustained by a worker, who fell on a log when walking his dog and while on call for his employer, did not occur during the course of his employment.
The worker, Mr Nazar, has now successfully appealed the matter to the Full Court of the Tasmanian Supreme Court. In Nazar v Hydro Electric Corporation [2022] TASFC 11, the Tasmanian Full Court, unlike the Supreme Court, concluded that the injury was sustained in the course of employment. The Full Court found the worker was injured while undertaking duties required by his contract of employment, such as being in the Tullah area, within an area of phone coverage, and he was paid for being on-call at the time of the injury. The Court concluded that the unexceptional nature of the activity the worker was undertaken while injured (walking his dog) did not take him outside the scope of his employment. Accordingly, the injury was found to be compensable.
This case illustrates the importance of closely examining the employment contract and the exact circumstances of injury in determining whether a worker’s injury was sustained in the course of their employment.
Credit in question
Borg v Woolworths Group Limited [2022] VCC 1792
The worker in this matter was employed by Woolworths Group Limited. The worker alleged that on 8 March 2017, while she was working on a machine called a sorter, a box of cordial was ejected from the machine and struck her in the stomach. She alleged the box forced her backwards, causing her to collide with a pallet and experience back pain. The worker sought permission to commence damages proceedings against Woolworths for both pain and suffering, and economic loss. Her application was rejected, and the worker subsequently filed court proceedings.
Hall & Wilcox, on behalf of Woolworths, did not dispute the worker sustained an injury as a result of the 8 March 2017 incident, but maintained that it was only a temporary impairment. In addition, Woolworths argued the worker was unreliable and unable to demonstrate there was a substantial organic basis to her complaints of pain. Finally, Woolworths argued the injury did not meet the statutory threshold.
His Honour Judge Purcell accepted the worker had aggravated pre-existing degenerative changes in her spine in the incident, but found that she had ‘failed to discharge her evidentiary burden to prove what impairment and impairment consequences were caused by the incident, both in respect to pain and suffering and pecuniary loss’.[1] Justice Purcell also found the worker had not established the necessary loss to her working capacity, given she had undertaken an office role after the injury before becoming redundant. Finally, Justice Purcell was ‘unable to accept her [the worker’s] broad and subjective complaints in the absence of corroborating objective evidence’.[2]
Ultimately, Justice Purcell found the worker had failed to establish she suffered from either a serious physical or psychiatric injury as a result of the 8 March 2017 incident. The proceeding was therefore dismissed. The case demonstrates that in matters primarily involving significant complaints of pain, credit issues often go hand in hand with a careful analysis of the evidence addressing the cause of the alleged pain.
Causation is critical: combining two incidents
Wilson v Victorian WorkCover Authority [2022] VCC 1283
The worker, Mr Wilson, was a 61-year-old maintenance manager. On 30 September 2014 he was using a whipper snipper when he stepped on a rut and fell to the ground, feeling immediate and severe pain to his left ankle (the first incident). Over the following weeks he experienced ongoing pain and instability. He strapped the joint but did not seek medical treatment. On 31 October 2014, at the same site and with his ankle still in a similar condition, he swung his right leg over the seat to disembark from a vehicle. During this process he fell and re-injured his left ankle (the second incident). The worker required five ankle surgeries and subsequently developed chronic regional pain syndrome. He sought leave to institute proceedings for damages against his employer in respect of injuries sustained over the course of his employment and arising out of the first incident.
The central issue in the matter was causation – was the first incident a sufficient cause of the subsequent incident? Or alternatively, did the first incident on its own give rise to consequences that were serious? The Victorian WorkCover Authority (VWA) contended the second incident was not caused by the first. Rather, it was a result of the worker misjudging the step as he was getting off the vehicle.
His Honour Justice Fraatz concluded that, while the worker returned to his normal duties after the first incident, he only did so ‘gingerly’,[3] as he ‘hobbled around with his ankle strapped’ doing the best he could.[4] Ultimately, Justice Fraatz found that ‘but for the first incident, Mr Wilson’s left ankle would not have been swollen, painful and unstable, or strapped, and would not have collapsed from underneath him… resulting in further insult to the ankle’.[5] Accordingly, His Honour considered there was a ‘sufficient causal connection between the first incident and the second incident’,[6] and granted the worker’s application for leave to commence proceedings.
Often, a worker may allege a subsequent injury was caused by an initial, compensable injury. This case serves as a useful reminder of the forensic analysis that is required in order to determine the cause of such injuries.
Transport accident or not?
Foursquare Construction Management Pty Ltd v Victorian Workcover Authority [2022] VSCA 237.
Mr McDonald, the worker in this matter, was employed by DC Bin Hire to deliver an industrial waste bin to a building site that was controlled by Foursquare Construction Management (Foursquare). The bin was delivered by truck. On 26 April 2016, while delivering the bin, the worker tripped and fell on a piece of reinforced steel mesh lying on the ground. The steel was in the vicinity of the truck.
The worker successfully claimed compensation under the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), and the VWA subsequently sought indemnity and recovery of payments from Foursquare. In its defence, Foursquare claimed the accident was a transport accident and that in order for the VWA to recover any damages paid, Mr McDonald needed to obtain a serious injury certificate under the provisions of the Transport Accident Act 1986 (Vic) (TA Act). It was agreed that Mr McDonald had not done so.
At first instance, Her Honour Justice Bourke determined that the incident was not a transport accident as it was not directly caused by the driving of the truck.[7] Foursquare appealed this decision. The Court of Appeal overruled the appeal and determined that the driving of a vehicle involves the propulsion and movement of the vehicle, including its movement to a stop. In this particular case, the key facts that the truck was parked and stationary, the accident did not occur due to alighting or exiting the vehicle, and the fact that the worker was not endeavouring to engage the truck for movement meant that the injury did not arise as a result of a transport accident. Accordingly, the Court of Appeal came to the same decision as Justice Bourke and Foursquare’s appeal was unsuccessful.
This case demonstrates the complexities that may arise in determining whether an incident is a transport accident, and the key factors that ought to be considered.
A case study in interpreting the AMA Guides
Arik v Vicinity Centres PM Pty Ltd [2023] VSC 94
Ms Arik slipped on a wet floor while visiting Broadmeadows Central Shopping Centre, resulting in injuries to her right knee, right hip and lower back. Under section 28LE of the Wrongs Act 1958 (Vic), Ms Arik obtained a certificate of assessment from an orthopaedic surgeon, stating that the degree of impairment from her right hip satisfied the threshold needed to recover damages for non-economic loss. Vicinity Centres (the owner and manager of Broadmeadows Central Shopping Centre) referred the matter to the Medical Panel for determination. The Medical Panel was not satisfied Ms Arik had sustained a significant injury. Ms Arik sought judicial review of the Panel’s opinion.
Ms Arik argued that the Panel was wrong to assess the degree of impairment of her hip by taking the highest rating of the range of motion deficits recorded on examination. Rather, the Panel was required to use the Combined Value Charts at the end of the American Medical Association Guides to the Evaluation of Permanent Impairment Fourth Edition (AMA Guides) to combine the measured whole-person impairment percentages for each range of movement. Ms Arik’s argument was based on the direction that appears in the introductory paragraphs in section 3.2 (the lower extremity), which states that ‘if the patient has several impairments of the same lower extremity part, such as the leg, or impairments of different parts, such as the ankle and a toe, the whole-person estimates for the impairments are combined.’
Applying that approach, Ms Arik submitted that her right hip is a lower extremity part, and that each of the restrictions in the range of movement of her right hip that were measured by the Panel is, in and of itself, an ‘impairment’ of the right hip for the purposes of the Guides. In accordance with the Guides, each of those impairments is to be combined using the Combined Values Chart to determine Ms Arik’s total whole-person impairment percentage. Vicinity accepted that the Panel had adopted the highest rating of its range of motion impairment assessments of Ms Arik’s hip but contended that the direction in 3.2 was not a direction to assign an individual impairment rating to every range of motion deficit and combine them. Vicinity also argued the direction in 3.2 could not displace the methodology prescribed by 3.2e which directs assessors to classify the loss of motion as mild, moderate or severe.
Justice Richards considered the context of section 3.2, including the headings and tables, the purpose of the AMA Guides and the previous iterations of the AMA Guides. Based on these factors, Her Honour determined that the meaning contended by Vicinity was not supported by the plain meaning of the direction in 3.2 and that to accept it would involve overlaying the AMA Guides with a legalistic interpretation. Accordingly, the Panel had fallen into error and should have combined the whole-person impairment estimates for the several range of motion restrictions it measured in Ms Arik’s right hip, rather than determining her degree of impairment by taking the highest rating.
The case demonstrates the complexities contained within the AMA Guides and that when interpreting the AMA Guides regard must always be had to its text, context and purpose.
[1] Borg v Woolworths Group Limited [2022] VCC 1792, [135].[2] Borg v Woolworths Group Limited [2022] VCC 1792, [56].
[3] Wilson v Victorian WorkCover Authority [2022] VCC 1283, [46].
[4] Wilson v Victorian WorkCover Authority [2022] VCC 1283, [46].
[5] Wilson v Victorian WorkCover Authority [2022] VCC 1283, [52].
[6] Wilson v Victorian WorkCover Authority [2022] VCC 1283, [12].
[7] Victorian WorkCover Authority v Foursquare Construction Management Pty Ltd [2021] VCC 2080.