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Recent Cases

Rendering v Gaffy & Ors [2017] VSC 53

Posted in Injury Compensation on 23 March 2017

DEK Rendering v Gaffy & Ors [2017] VSC 53

Supreme Court of Victoria

J Forrest J

Judicial review - accident compensation - first defendant employed by plaintiff
- plaintiff sought judicial review of Medical Panel’s decision concerning first
defendant’s work capacity - panel found first defendant’s work capacity limited
to two days per week and that this would continue indefinitely - ‘continue
indefinitely to be incapable of undertaking further additional employment or
work’ in s94CD(4)(b) Accident Compensation Act 1985 (Vic) - whether
Panel asked itself wrong question - held: Panel misdirected itself as to
s94CD(4)(b), which required consideration of ‘further or additional employment
or work’ without limitation to work being performed by worker when authority
required to make decision - Panel’s decision quashed - matter remitted

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Lumley v Sainsbury [2017] ACTSC 40

Posted in Injury Compensation on 9 March 2017

Supreme Court of the Australian Capital Territory

Murrell CJ

Damages - motor vehicle accident - plaintiff claimed damages for injuries
suffered in motor vehicle accident - liability admitted - assessment of damages
- extent of aggravation to pre-existing back condition - course which
underlying condition would have taken in absence of accident - utility of
chiropractic treatment and whether reasonable to continue with the treatment -
past and future economic loss - domestic assistance - held: damages assessed in
sum of $184,591.90 - judgment for plaintiff.

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IME’s and Determination of Liability

Posted in Injury Compensation on 9 March 2017

The insurer had made two IME appointments in Sydney in order to ascertain liability for the worker’s claim. The claim was placed under reasonable excuse pending the outcome of the IMEs. The injured worker wanted to refuse to attend the two appointments as the worker resided in rural NSW and they were of the opinion the insurer could have arranged appointments closer to the workers place of residence. Following an inquiry by WIRO the insurer explained that they had tried to secure appointments in the rural area but there were very limited IMEs to choose from, and there would have been a long waiting period. The insurer also advised that they had organised the two IMEs in the same building one after the other so as not to inconvenience the worker. The IMEs were booked for early January and the insurer was required to organise travel as a matter of urgency. WIRO subsequently contacted the injured worker, explained the situation, and the worker agreed to attend the examinations so long as a support person could also attend with them. WIRO passed this request into the insurer who provided their approval and immediately made all travel arrangements.

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Return to Work

Posted in Injury Compensation on 9 March 2017

An injured worker was currently on a working holiday visa which he stated was to come to an end in January 2017. He was currently certified fit for light duties and was not sure whether his claim was accepted. The worker was also unsure whether he had any entitlement to weekly or medical expenses once his employment had ceased. The insurer confirmed to WIRO that the worker was currently on a 12 month working visa, which allowed him to work at 1 employer for a maximum of 6 months at a time They confirmed that the worker’s employment with his current employer (with whom he sustained the injury) will cease in January 2017 due to the 6 month timeframe. They advised that the entire visa will expire in August 2017. Understanding this, the insurer arranged rehabilitation support to assist with vocational options and job seeking assistance, and they confirmed weekly entitlements will commence once his employment with the current employer is ceased.

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Determination of Liability

Posted in Injury Compensation on 9 March 2017

The injured worker contacted WIRO seeking to make a complaint as he alleged that his claim had been declined contrary to the evidence of his treating doctors. The worker stated that he was diagnosed with depression and had not been provided with any return to work assistance. In response to WIRO’s preliminary inquiry the insurer provided a copy of the decline documents stating that the worker’s physical injury had resolved and that liability had been declined for “secondary psychological injury” on the basis that the worker had suffered no injury under sections 4, 9, or 9A. The insurer had attached an IME report to the declinature notice stating that the worker had suffered a psychological injury as a result of the employer’s failure to provide suitable duties and confirmed that this psychological injury had brought about an incapacity for work.

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State of New South Wales v Stockwell [2017] NSWCA 30

Posted in Injury Compensation on 9 March 2017

Court

of Appeal of New South Wales

McColl, Leeming & Simpson JJA

Industrial law - applicant sought extension of time to appeal pursuant to
s353(1) Workplace Injury Management and Workers’ Compensation Act 1998
(NSW) from decision of Workers Compensation Commission to confirm arbitrator’s
finding that respondent was a paramedic under cl25, Pt 19H, Sch 6 Workers
Compensation Act 1987 (NSW), thus exempting him from amendments to the
Workers Compensation Act (‘2012 amendments’) - applicant contended that
respondent lost classification for failure to undertake courses and
examinations required by award - meaning of ‘paramedic’ - proper construction
of 2006 Award - held: failure to comply with the proviso did not mean
respondent did not have status of a paramedic at injury’s deemed date - appeal
dismissed.

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McCallum v Reynolds (No 2) [2017] NSWSC 108

Posted in Injury Compensation on 24 February 2017

McCallum v Reynolds (No 2) [2017] NSWSC 108

Supreme Court of New South Wales

Harrison AsJ

Interrogatories - negligence - plaintiff sued defendants, claiming she was
injured when she fell from railing of balcony of rental property owned by first
and second defendants - first and second defendants sought leave pursuant to
r22.1 Uniform Civil Procedure Rules 2005 (NSW) to file and serve
interrogatories on plaintiff and that plaintiff provide verified answers within
14 days of service - it was defendants’ second application seeking
interrogatories - Campbell J dismissed first motion - interrogatories sought in
relation to whether plaintiff intoxicated at time of accident - special reasons
- necessity - onus - ss48 & 50 Civil Liability Act 2002 (NSW) -
held: motion dismissed.

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Whittington v Smeaton [2016]

Posted in Injury Compensation on 29 April 2016

Supreme Court of the Australian Capital Territory

- Negligence - boating accident - plaintiff was observer on jet ski driven by second defendant - jetski was towing first defendant waterskier - first defendant owned jet-ski - first defendant fell -

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MR C

Posted in Injury Compensation on 2 March 2016

MRS L

Posted in Injury Compensation on 2 March 2016