WorkCover Division Judgments 2012
Selected judgments handed down in the Workcover Division of the Magistrates' Court of Victoria during 2012.
Abdalla v Swan Services | Magistrate: B R Wright Reasons for Decision Workers Compensation – Rejection of Claim – Worker Subjected to Threats and Assaults at Work – Whether Acting for the Purposes of and in Connection with Employers Business – Whether Worker Injured “Outside Employment” – Serious and Wilful Misconduct – Whether Self-Inflicted Injuries – Accident Compensation Act 1985 ss 82 (1), (3) and (4), 83(2)(d) Download File (PDF 92KB) |
Allianz Australia & Anor v Scandolera | Magistrate: B R Wright Reasons for Decision Workers Compensation – Application for Revocation of a Conciliation Officer’s Direction – Hearing De Novo – “Genuine Dispute” – Matters to Be Taken into Account – Accident Compensation Act 1985 ss 59, 60 Download File (PDF 30KB)
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Berryman v Saferoads Pty Ltd | Magistrate: S.Garnett Reasons for Decision S 109 Rejection – Assault by co-worker on journey home from Christmas function after worker engaged in abusive, drunken and provocative behaviour: issue whether injury arose out of or in course of employment: S 82 (1), S 82 (4) – serious and wilful misconduct Download File (PDF 80 KB) |
Breen v WVA | Magistrate: B. Wright Reasons for Decision Workers Compensation – Injury to Back - Rejection of Claim for Weekly Payments – Previous Admitted Back Injury Surgery and Damages Settlement with Earlier Employer – Further Alleged Injury with Defendant – Consent Dismissal in County Court and later Payment of Medical Expenses and Surgery by VWA - Issue Estoppel/Res Judicata Defence – Causation Issues – Incapacity Beyond 104 Weeks – Accident Compensation Act ss 5, 82, 93C Download File (PDF 84 KB) |
| Bukarica v Venture DMG | Magistrate: B R Wright Reasons for Decision Workers Compensation – Rejection of Claim – Alleged Back Injury – Denial of Injury and Incapacity – Credibility Issues – Accident Compensation Act 1985 ss 82, 93. Download File (PDF 72 KB) |
Casey v Direct Skills | Magistrate: B Wright Reasons for Decision Accepted Claim – Weekly Payments – Failure to Provide Certificates of Capacity Within 90 Days – Effect on Entitlement to Weekly Payments for Relevant Period – Accident Compensation Act s. 111 (1), (1A) and (4) Download File (PDF 52 KB) |
Coates v New Form Steel | Magistrate: S Garnett Reasons for Decision S 109 Rejection of claim for back injuries sustained on 15 October 2010 – credit issues – causation – capacity for pre injury duties. Download File (PDF 72 KB) |
Daniel Bell v Andrew Cross Motors | Magistrate: B Wright Reasons for Decision Workers Compensation – Rejection of Claim for Weekly Payments and Medical Expenses – Whether Worker Sustained a Back Injury in the course of employment – Questions of Fact - Accident Compensation Act s 82 Download File (PDF 52 KB) |
Dines v Tropical Star Coffee | Magistrate: B R Wright Reasons for Decision Workers Compensation – Rejection of Death Claim – Proposed Referral to Medical Panel – Whether Factual Issues More Appropriately Determinable by the Court – Form of medical Questions – Whether Medical Panel Should Have Access to Reasons for Previous Opinion – Accident Compensation Act ss 45(1D), 65, 92A Download File (PDF 32 KB) |
Fletcher v AMRS (Aust) Pty Ltd | Magistrate: B Wright Reasons for Decision Workers Compensation – Termination of Benefits – Denial of Work Related Injury – Whether Worker Injured In Course of Employment or “Incidental Thereto” – Place of Employment - Whether Worker Travelling for Purposes of Employment – Accident Compensation Act 1985 ss 82(1), 83(1)(b) and (2)(a). Download File (PDF 44KB) |
Green v Willdarben | Magistrate: S Garnett Reasons for Decision Termination of weekly payments after 130 weeks – Left arm injury: current work capacity – no current work capacity: identified “suitable employment” options - worker would need to obtain qualifications/undergo training - physical restrictions would apply and an accommodating employer – unrealistic expectations – worker has no current work capacity which is likely to last indefinitely. Download File (PDF 48KB) |
Lee v W Sinclair and Sons | Magistrate: P. Lauritsen Reasons for Decision Plaintiff and defendant settled an earlier worker’s compensation claim, subsequent to which the plaintiff returned to work – plaintiff’s current claim for compensation for injury arising out of the course of employment – Accident Compensation Act 1985, s 82(2A), inconsistencies arising as to whether a return to work plan constituted “redeployment” or “reclassification” – aggravation of pre-existing mental injury – no current work capacity – application of the rule in Browne v Dunn (1893) 6 R 67 – no estoppel in relation to latest injury. Download File (PDF 116KB) |
Lukey v Mercy Public Hospitals | Magistrate: B R Wright Reasons for Decision Workers Compensation – Rejection of Claim – Worker Leaving Work Premises at End of Shift – Crossing “Shared Area” – Whether In Course of Employment or Incidental Thereto – Accident Compensation Act 1985 ss 82,83 Download File (PDF 44KB) |
Manthopoulos v Spencwill Nominees | Magistrate: S Garnett Reasons for Decision S 114 (2) Termination of weekly payments on grounds that worker had received 130 weeks of weekly payments and has a capacity for ‘suitable employment’. Amendment to definition of ‘suitable employment’ by s 74 (3) of Accident Compensation Amendment Act 2010: factors to consider – industrial climate irrelevant – suitable employment options: onus of proof – “degree of realism” required – defendant embarked in an exercise of “cherry picking” aspects of particular jobs to create fictional employment options – worker has “no current work capacity” which is likely to last indefinitely. Download File (PDF 124KB) |
McCormick v State Of Victoria | Magistrate: S Garnett Reasons for Decision Rejection of claim for limited period of incapacity and reasonable medical and like expenses – compensable injury to right knee on 23 April 2006 – prior non work related injury to right knee in 1985 – whether effects of 2006 injury resulted in incapacity for work in 2010 or whether due to pre-existing condition and effects of surgery performed in 1988. Download File (PDF 44KB) |
McGrath v Gromotka | Magistrate: S Garnett Reasons for Decision S109 Rejection – right hand/wrist injury – limited claim only. Download File (PDF 48KB) |
Missen v Primech | Magistrate: S Garnett Reasons for Decision Termination of weekly payments after 130 weeks – current work capacity –no current work capacity – suitable employment options identified – need for pain management program and psychological counselling. Download File (PDF 64KB) |
| Mullett v Ramahyuck | Magistrate: S Garnett Reasons for Decision S 109 Rejection: – denial of injury and incapacity – Anxiety/Depression Download File (PDF 36 KB) |
O'Dea v L'Oreal Australia Pty Ltd | Magistrate: B Wright Reasons for Decision Workers Compensation – Rejection of Claim – Whether Injury Deemed To or Arose Out of or in Course of Employment – Whether “Incidental” to Employment – Accident Compensation Act 1985 ss 82, 83(1)(b) Download File (PDF 40KB) |
Popov v Ainsaar | Magistrate: S Garnett Reasons for Decision S 109 Rejection – Left Shoulder injury – issue at hearing: capacity – Liability Download File (PDF 52 KB) |
Robinson v SPI Electricity | Magistrate: S Garnett Reasons for Decision S109 Rejection – alleged aggravation of degenerative back condition – factual dispute as to whether condition contributed to by an incident at home and/or whether general work duties on 1 February 2011 and in course of employment contributed to deterioration of condition and resulting incapacity. Jurisdictional issue as to whether worker entitled to rely on duties performed over course of employment or restricted to date of injury as contained in claim form. S 39, 102, 103 & 109 considered. Download File (PDF 80 KB) |
Russell v Terry White Chemist | Magistrate: S Garnett Reasons for Decision S 98C claim – liability determination initially disputed by worker pursuant to S 104B(6) and referred to Conciliation – worker subsequently accepted liability determination – matter referred to the Medical Panel for an opinion pursuant to S 104B(9) – Convenor queried description of accepted injuries being; “resolved soft tissue injury – lumbar spine” – Medical Panel not convened & opinion not provided - worker issued proceedings seeking determination/declaration for claimed injuries – defendant issued application for proceedings to be dismissed Download File (PDF 48 KB) |
Sitaris v Illesinghe & Prasantha | Magistrate: S Garnett Reasons for Decision S 109 Rejection of psychiatric injury claim – pre-existing condition – issue whether employment a significant contributing factor causing an aggravation of her condition leading to incapacity – worker failed to inform treating doctors of work issues whilst employed and first report of work issues to doctor occurred 4 months after ceasing work – workcover claim made 9 months after ceasing work – treating psychiatrist not called to give evidence. Download File (PDF 84 KB) |
Solum v State Owned Enterprise | Magistrate: B.R. Wright Reasons for Decision Workers Compensation – Rejection of Claim for “chronic fatigue syndrome” – Issue as to Diagnosis – “Disease” – Increased Mental Stress - Whether Employment a “Significant Contributing Factor” – Accident Compensation Act ss 5, 5(1B), 82 (1) and (2C)(b) Download File (PDF 56KB) |
Steele v Lyon Forklift | Magistrate: S Garnett Reasons for Decision Application to refer medical questions to a Medical Panel – S 45(1D): factual issues – surveillance material relied on by defendant attacking credibility of worker – allegations of injuries sustained in other employment: whether matter appropriate to be referred to a Medical Panel – Application refused. Download File (PDF 31KB) |
Stitt v Amcor | Magistrate: B Wright Reasons for Decision Rejected Claim for Compensation – Whether “dispute” between parties – Whether “dispute” between parties referred for conciliation and certificate issued by Conciliation Officer – Accident Compensation Act ss. 39(1), 49(1).. Download File (PDF 40KB) |
Stray v Metro Printing | Magistrate: S. Garnett Reasons for Decision Download File (PDF 48KB) |
Sullivan v Toll Holdings | Magistrate: S. Garnett Reasons for Decision S 88 (4) – Industrial Deafness – date of injury: issue whether exposure and injury occurred with defendant as last employer. Download File (PDF 40KB) |
Tognolini v Aegis | Magistrate: B Wright Reasons for Decision Workers Compensation – Rejection of Claim – Proposed referral to Medical Panel – Resolution of Factual Issues Required – Accident Compensation Act ss 45(1D) and (1E) Download File (PDF 44 KB) |
Treacy v Western Health | Magistrate: S. Garnett Reasons for Decision S 109 Rejection of claim for weekly payments and medical expenses – anxiety condition/depression – S 82(2A) relied on: S 82 (10): “management action” – whether management action taken on reasonable grounds and in a reasonable manner – whether injury caused wholly or predominantly by “management action” taken on reasonable grounds and in a reasonable manner – inaccurate history provided to treating doctors which formed the basis of their opinion. Download File (PDF 82 KB) |
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