Kamener v Grifiin [2004] VSC 235

Kamener v Grifiin [2004] VSC 235 - VSC 2004 case summary — Zoe

[15]

"It is agreed: 1. The Plaintiff worker was employed from late May or early June 1999 as a dishwasher/kitchenhand at the Blue Ribbon Café, Glenferrie Road, Hawthorn until about the 15th day of July 1999, a total of about 8 to 10 weeks. 2. The Plaintiff worker made a claim for compensation dated the 17th day of July 2001 claiming injury to his right shoulder and lumbar spine as a result of lifting heavy trays of dishes repeatedly and as a result was incapacitated for work (sic). 3. The Defendant employer disputes the claim and denies the Plaintiff worker suffered any injury in the course of or arising out of employment with the Blue Ribbon Cafe, or that there was any consequential incapacity for work as a result of the claimed injures (sic). Issues and facts in dispute: A. The Defendant denies that the Plaintiff suffered any injury in the course of or arising out of or due to the nature of the stated employment. B. The Defendant contends that the medical histories provided to medical practitioners for the purposes of a claim for worker's compensation were false. C. The Defendant contends that if the worker suffered any injury, particularly to his right shoulder and back (including the low back), such injuries were suffered prior to employment with the said Blue Ribbon Café and in particular as a result of a motor vehicle accident on the 25th day of April 1998, and subsequent to his employment when he fell at his home residence on about 19th April 2001. Further, such alternative histories are consistent with histories provided by the Plaintiff to treating and/or examining medical practitioners relevant to other claims. D. The Plaintiff denies he suffered any relevant injury, particularly to his right shoulder and low back, before or after the relevant employment with the Blue Ribbon Café notwithstanding the recorded medical histories and which (sic) the Plaintiff contends are inaccurate. The Plaintiff contends that the medical histories provided to medical practitioners for the purposes of a claim for worker's compensation are truthful."

[30]

"The Panel, with the worker viewed a video taken of the work area of the café. The worker stated that it must have been taken after hours as there were few people working and that it appeared that the lay out of the area had been changed since he had left. He claimed that when he was working there the area was always very congested and certainly not as depicted in the video. In the Panel's opinion the worker is suffering from mild residual right shoulder symptoms due to aggravation of degenerative changes in the right acromio-clavicular joint. The panel also concluded that there is no medical condition of the neck and the abnormalities noted on the radiology in the lumbo-sacral spine are not relevant to any alleged injury. The Panel conducted a psychiatric examination and concluded that the worker is also suffering from a mild Adjustment Disorder with features of irritability, agitation and depressed mood which has arisen secondary to the pain and physical limitations resultant from his physical condition. The Panel considers the nature of the worker's duties probably caused a musculo/ligamentous injury of the right shoulder, which is now resolved and aggravated the degenerative changes of the right acromio-clavicular joint. The panel also considers the nature of the worker's duties probably resulted in a musculo-ligamentous injury to the lumbar spine, which has now resolved. The Panel therefore concluded that the worker's employment with the defendants was in fact a significant contributing factor to an injury to the right shoulder, a musculo-ligamentous injury to the lumbar spine which has now resolved, and to the development of a psychiatric condition, but employment could not possibly have been and was not in fact a significant contributing factor to any alleged injury to the cervical spine, nor to any alleged recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing condition of the lumbo-sacral spine or cervical spine in any way. The Panel considered the worker is not capable of performing his pre-injury duties due to the nature of the right shoulder condition and this incapacity is materially contributed to by the alleged right shoulder injury."

[44]

"65. Procedures and powers (1) A Panel is not bound by rules or practices as to evidence, but may inform itself on any matter relating to a reference in any manner it thinks fit. (2) The Panel must act informally, without regard to technicalities or legal forms and as speedily as a proper consideration of the reference allows. (3) Information given to a Panel cannot be used in any civil or criminal proceedings in any court or tribunal, other than proceedings- (a) before the County Court, the Magistrates' Court or the Tribunal under this Act or the Workers Compensation Act 195 8; (b) for an offence against this Act or the Accident Compensation (WorkCover I nsurance) Act 1993 or the Workers Compensation Act 195 8; (c) for an offence against the Crimes Act 1958 which arises in connection with a claim for compensation under this Act. ´(d) [repealed] (4) Any attendance of a worker before a Medical Pane l must be in private, unless the Medical Panel considers that it is necessary for another perso n to be present. (5) A Panel may ask a worke r- (a) to meet with the Panel and answer questions; (b) to supply copies of all documents in the possession of the worker which relate to the medical question to the Panel; (c) to submit to a medical examination by the Panel or by a member of the Panel. (6) If a Panel so requests and the worker consents, a person who is- (a) a provider of a medical service (within the meaning of paragraph (a) of the definition of "medical service" in section 5(1)); (b) [repealed] who has examined the worker must- (c) meet with the Panel and answer questions; and (d) supply relevant documents to the Panel. (6A) A person or body referring a medical question to a Medical Panel must submit a document to the Medical Panel specifying- (a) the injury or alleged injury to, or in respect of, which the medical question relates; (b) the facts or questions of fact relevant to the medical question which the person or body is satisfied have been agreed and those facts or questions that are in dispute. (6B) A perso n or body referring a medical question to a Medical Panel must submit copies of all documents relating to the medical question in the possession of that pers on or body to the Medical Panel. (7) The Convenor may give directions as to the arrangement of the business of the Panels. (8) The Minister may for the purposes of- (a) ensuring procedural fairness in the procedures of the Medical Panels; and (b) facilitating the proper administration of the Medical Panels- issue guidelines as to the procedures of Medical Panels. (8A) The Minister must consult with the Attorney-General before issuing any guidelines under this section. (9) The Convenor may give directions as to the procedures of the Panels but may not give directions inconsistent with any guidelines issued by the Minister. (10) The Convenor of the Medical Panel s and a member of a Medical Panel has in the performance of his or her duties as the Convenor of the Medical Panel s or as a member of a Medical Panel the same protection and immunity as a Judge of the Supreme Court has in the performance of his or her duties as a Judge. "

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Judgment (117 paragraphs)

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Cases Cited (4)