Thinking | 28 October 2021
Latest case updates for self-insurers – October 2021
By Ilona Strong and Grace Bowran-Burge
In our latest update for self-insurers, we look at some recent cases, including the impact of COVID-19 on economic loss, a decision that confirms a worker cannot bring a second serious injury application for the same compensable circumstances, a case where a worker was found to have chronic pain but retained a capacity for pre-injury work and the ongoing question of when injuries can be aggregated.
In Hariharan v Vojtisek & Anor  QDC 276, the Queensland District Court considered the impact of COVID-19 when assessing a Plaintiff’s claim for past and future lost earnings.
The Plaintiff worked as a machine operator in the metal working industry in Victoria. He was travelling in Queensland when he was involved in a motor vehicle accident, resulting in injuries to his spine. Following his injuries he returned home to India. The Plaintiff commenced a motor accident insurance commission claim and argued that absent his injuries he would have spent six months in India and six months in Victoria (working as a machine operator in both countries). This arrangement was designed to allow the Plaintiff to spend additional time with his family and supplement his income in India with higher Australian wages. The Defendant contended that absent the Plaintiff’s injuries, the Plaintiff’s employer would not have permitted the Plaintiff to ‘flit backwards and forwards and only work through the busiest times of the year for some months.’ The Defendant also contended that COVID-19 ought to be considered in assessing both past and future loss of earnings.
The Court accepted the Defendant’s proposition and found it more likely that, absent his injuries, the Plaintiff would have been able to work for 10 months of each year in India and two months of each year in Victoria, working on a casual basis during busier times of the year. However, the Court found that from February 2020, when the COVID-19 pandemic began in Australia, this travel would no longer have been possible. The Court also expressly noted the limited employment opportunities in the metal working industry in both Australia and India from February 2020 to October 2021. Given substantial barriers, such as international travel bans and government-mandated lockdowns, the court determined the Plaintiff had no quantifiable economic loss between February 2020 and October 2021, entirely as a result of the pandemic.
This case demonstrates the Court’s willingness to consider the commercial reality of the employment market during the COVID-19 pandemic when calculating a Plaintiff’s economic loss. Employer evidence is likely to be particularly important in these scenarios, as employers will have intimate knowledge of the impact of the pandemic on their industry.
In Museums Victoria v Susnjara  VSCA 166 the Supreme Court of Appeal confirmed that a worker cannot apply for a second serious injury certificate in relation to injuries arising out of the same compensable circumstances.
The worker was a painter and had worked for Museums Victoria for a number of years. The worker alleged that repetitive and difficult work had resulted in multiple compensable injuries. The worker applied for a serious injury certificate relating to claimed injuries to both hands and a consequential psychological injury. The body functions the worker relied upon were his hands and upper limbs. The application was rejected and the worker was unable to demonstrate to the court that the claimed injuries were work-related or serious. Accordingly, the worker was unsuccessful.
Many years later, the worker again applied for a serious injury certificate arising from his employment with Museums Victoria, but now for a bilateral shoulder injury. Museums Victoria rejected this application, stating that the worker had previously made an application in respect of the same claimed injury, and accordingly was prohibited from bringing a second claim. Proceedings were subsequently issued and the County Court was required to determine the proper construction of ‘an injury.’ His Honour Judge Bowman found that separate conditions resulting from the same event were capable of being the subject of a separate serious injury application, that is, the worker could now bring a serious injury application in respect of his shoulders.
Museums Victoria successfully appealed this decision, with the Court of Appeal finding ‘an injury’ refers to a ‘compensable injury in the sense of the total injury suffered in the relevant compensable circumstances’. However, the Court went on to note that it is still open to a worker to attribute a specific injury to a different compensable act. It was therefore open to the worker to say that the shoulder injury was to do with a specific ‘overhead stretching’ movement required by the job, distinct from the repetitive work that was the alleged cause of the first serious injury application. Accordingly, the matter was remitted to the County Court in order for evidence to be heard in respect of the exact cause of the claimed shoulder injuries.
The Court of Appeal decision restores the law to its previous state, being that a worker cannot bring a second serious injury application for variants of the same injury arising out of the same compensable circumstances. However, it is still open for a worker to try and establish that a different set of compensable facts caused the second injury.
In Sidiqi v Kotsios & Ors  VSCA 187 the Supreme Court of Appeal upheld a decision of the Medical Panel which found that, while the worker suffered from a chronic pain syndrome and adjustment disorder, he retained a capacity for his pre-injury employment.
The worker was employed as a storeman and forklift driver in a timber yard. On 26 August 2016 he suffered an injury when he bent over to pick up a piece of timber and felt acute pain in his lower back. The worker lodged a serious injury application, which was rejected and proceedings subsequently issued. His Honour Judge Wischusen referred questions regarding the worker’s injury and work capacity to the Medical Panel.
The Panel concluded the worker suffered from a chronic pain syndrome and a chronic adjustment disorder with mixed anxiety and depressed mood, and that these conditions were permanent. The Panel went on to find the worker did not suffer from any incapacity as a result of these injuries and was able to perform his pre-injury hours and duties. The worker appealed this decision, arguing that findings regarding his chronic pain were inconsistent with a finding that he had a full capacity to work and that the Panel had committed a jurisdictional error and failed to provide proper reasons.
The Supreme Court emphasised that a Medical Panel has expertise that should be deferred to, so long as the Panel complies with the principals of procedural fairness and the inferences it draws are open to be drawn on the evidence. The Court considered that it was plainly open on the material before the Panel to reach the conclusion it did and that a rational evaluation of that material as a whole ‘could not be said to compel a contrary conclusion’. Of note, the Court stated the worker’s ‘real complaint is not about the legibility of the Panel’s path of reasoning but about its outcome.’ Accordingly, the Court refused the worker’s application for leave.
The case serves as a useful reminder that a Court will defer to the medical expertise and experience of a Panel, and will not unnecessarily scrutinise the reasoning of a Panel. However, perhaps more importantly, the facts of the case demonstrate that a chronic pain diagnosis does not necessarily produce an incapacity for employment.
In order to be successful in a serious injury application, a worker is required to demonstrate a permanent serious impairment or loss of a body function. Accordingly, the question of when separate injuries can be aggregated to form one body function has been heavily contested by workers and employers alike. Two recent decisions have given further clarity to this question.
The worker sustained injuries to his right knee and right ankle when he collided with a metal chair. In bringing his serious injury application, the worker sought to rely upon an impairment of the right lower limb. At the initial hearing of the matter, the employer argued the worker could not aggregate the injuries to the right ankle and right knee to claim an impairment or loss of body function to the right leg. The employer further submitted that, if the injuries cannot be aggregated, neither injury on its own met the test for serious injury. His Honour Judge Purcell found the claimed right knee and right ankle could be combined, a decision the worker appealed. The Court of Appeal dismissed this application, finding a ‘common sense’ and ‘pragmatic’ approach allowed the aggregation of the claimed injuries. The Court also noted this aggregation is in accordance with earlier decisions which allowed aggregation of injuries to different levels of the spine. Importantly, the Court also stated a worker who suffers injuries to the shoulder and elbow of the one arm in the one incident or set of compensable circumstances, can aggregate these injuries to claim an impairment of the body function of the arm (overturning the comments previously made by the Court of Appeal in Lu v Mediterranean Shoes).
This month, the County Court again considered the issue of aggregation, this time in the context of a claimed neck and right shoulder injury. The Plaintiff was involved in a motor vehicle accident and sought a serious injury certificate, arguing her neck and right shoulder were affecting the same body function, in that pain radiated from her neck to her shoulder. His Honour Judge Lauritsen concluded this was not supported by the evidence, which showed the Plaintiff had sustained an aggravation of cervical spondylosis and a discreet rotator cuff injury. Accordingly, the two injuries could not be combined; however, the Plaintiff reached the serious injury threshold in respect of her cervical spine injury alone.
Whether a worker is able to aggregate injuries to various body parts will depend on the exact nature of the injuries, the claimed circumstances of injury and the medical evidence. This is also likely to be an area with attracts further litigation by workers, given the recent decision in Brassington.
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