WORKCOVER DIVISION Case No.F CLINICAL LABORATORIES PTY LTD --- S GARNETT LATROBE VALLEY REASONS FOR DECISION ---

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1 !Und efined Boo kmark, I IN THE MAGISTRATES COURT OF VICTORIA AT LATROBE VALLEY WORKCOVER DIVISION Case No.F SHARON TURNER Plaintiff v CLINICAL LABORATORIES PTY LTD Defendant MAGISTRATE: S GARNETT WHERE HELD: LATROBE VALLEY DATE OF HEARING: 28 APRIL 2016 DATE OF DECISION: 9 MAY 2016 CASE MAY BE CITED AS: TURNER v CLINICAL LABORATORIES MEDIUM NEUTRAL CITATION: [2016] VMC009 REASONS FOR DECISION Catchwords: Application for re-instatement of weekly payments from 25 May 2015 prior dismissal of proceedings at Magistrates Court on 16 December 2010 where plaintiff sought weekly payments and medical treatment expenses: Preliminary Ruling: Accord and Satisfaction Estoppel. APPEARANCES: Counsel Solicitors For the Plaintiff Mr Horner Maurice Blackburn For the Defendant Mr Richards Minter Ellison

2 HIS HONOUR: 1 Ms Turner is aged 47 years and was employed by the defendant between July 2005 and August 2007 as a pathology collector and then area supervisor. She sustained a psychiatric injury which arose out of or in the course of her employment and in particular on or about 29 August She submitted a claim for compensation for which liability was accepted by the defendants WorkCover agent in accordance with the provisions of the Act. 2 On 4 August 2008, QBE Workers Compensation gave notice of its intention to terminate her weekly payments of compensation and medical treatment expenses on that date on the basis that; she was no longer incapacitated for work; her incapacity for work was no longer materially contributed to by an injury arising out of or in the course of her employment and her incapacity for work was no longer materially contributed to by an injury which entitled her to compensation. 3 Ms Turner issued proceedings in the Magistrates Court (A ) seeking an order that she was entitled to weekly payments of compensation and medical treatment expenses from 4 August By way of an Amended Defence dated 6 May 2010, the defendant alleged that Ms Turner had a capacity to return to work in her pre-injury duties from the alleged date of injury and/or alternatively from a later date. By way of a further Amended Notice of Defence dated 16 July 2010, the defendant alleged that Ms Turner was not entitled to receive weekly payments of compensation exceeding 130 weeks in aggregate on the grounds that she had a current work capacity or if she had no current work capacity, such incapacity was unlikely to continue indefinitely. 4 On 16 December 2010, the proceedings were resolved after the filing of Minutes of Consent whereby the proceedings were dismissed. The terms of settlement provided that with an express denial of liability, the defendant was 1

3 to pay Ms Turner weekly payments of compensation at the rate for no current work capacity from 5 August 2008 to 19 March 2010 (being the balance of weekly payments up to the 130 week entitlement period) together with ongoing reasonable medical and like expenses in relation to her psychiatric condition. 5 On 25 May 2015, Ms Turner made an application seeking a re-instatement of her weekly payments of compensation from that date which was rejected by the defendant on 1 June In the current proceedings, the defendant raises the special defences of accord and satisfaction and issue estoppel. The parties seek a preliminary ruling on these issues. 6 The parties tendered numerous documents relating to the previous proceeding including a medical report of Dr Kenny, Consultant Psychiatrist, dated 28 April 2008 and questionnaires completed by Dr Phare, treating general practitioner, and Mr Hodgson, treating psychologist, which were relied on by QBE to terminate Ms Turner s weekly payments of compensation and medical treatment expenses on 4 August Dr Kenny opined that Ms Turner was capable of returning to work at any other pathology laboratory or any other work other than with the defendant. He stated that her condition had largely resolved but she still had minor residual symptoms of frustration and resentment and warranted further, albeit limited, psychological treatment for a period of 12 months. Dr Phare opined that Ms Turner would be fit for work in 1-2 months but not at the defendant s premises and Mr Hodgson expressed an opinion that she would be fit to return to work with appropriate supports. 7 It is apparent that QBE did not possess the medical evidence necessary to terminate Ms Turner s entitlement to medical treatment expenses as at 4 August 2008 and have in fact continued to pay for her treatment expenses by virtue of the terms of settlement dated 16 December It appears to me that the focus of the previous proceedings was her capacity to return to work rather than issues relating to ongoing causation. This issue was resolved on 2

4 16 December 2010 between the parties by the defendant agreeing to pay weekly payments to the expiration of the 2 nd entitlement period. Additionally, the court was informed that on 27 February 2009, QBE accepted liability in relation to a S 98C claim and a Medical Panel assessed Ms Turner as having a 20% permanent psychiatric impairment as a result of her injury. She was also granted a serious injury certificate for the purposes of pursuing a damages claim in These factors add strength to her submission that the only issue resolved on 16 December 2010 related to her work capacity at that time. 8 The parties referred to a number of decisions including: Ozbilgi v Bradnams Windows & Doors P/L 1, Bunney v Ryan Moves 2, Derks v R & J Fibreglass 3, Fuat v One Steel Ltd 4, Warren v Jennifer A Yates P/L 5, Perkins v GIO 6, Bucic v Arnej P/L 7 and Filipovski v Tandem Australia P/L 8 regarding the principles involved in issue estoppel and accord and satisfaction. Other cases of relevance are; AMP v Chalkley 9, Cihan v South Pacific Tyres 10, Hall v HIH 11 and Perkins v GIO It is clear from the principles stated in these cases that the agreement reached by the parties on 16 December finalised any claim by Ms Turner to be entitled to weekly payments up to the 130 week entitlement period. The agreement extinguished all claims by her for weekly payments against the defendant in relation to her psychiatric condition to that point. However, it did not extinguish her right to prove an entitlement to weekly payments beyond 130 weeks if she is able to satisfy the evidentiary onus that from 25 May [2011] VSCA April 2013 Magistrate Saines 3 [2009] VSC [2010] VCC [2006] VCC [1995] VCC September 2014 Magistrate Wright. 8 9 February 2016 Magistrate Wright. 9 [1998] VSC January 2005 and 19 May 2005 Magistrate Wright. 11 Judge Rendit 5 October Judge Higgins 12 December

5 her psychiatric condition has deteriorated to such an extent that she has no current work capacity which is likely to last indefinitely. My finding is consistent with the approach taken in Perkins, Chalkley, Hall and Cihan. 10 Accordingly, Ms Turner is not barred by the agreement on 16 December 2010 from prosecuting her claim for weekly payments from 25 May I will list the matter for Hearing in the Latrobe Valley WorkCover Circuit commencing 15 August

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