IN THE MAGISTRATES COURT OF VICTORIA



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|IN THE MAGISTRATES COURT OF VICTORIA | |

AT latrobe valley

WORKCOVER DIVISION

Case No. C10383318

|ADAM ROBINSON |Plaintiff |

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|SPI ELECTRICITY PTY LTD |Defendant |

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|MAGISTRATE: |S GARNETT |

|WHERE HELD: |LATROBE VALLEY & MELBOURNE |

|DATE OF HEARING: |11, 12 & 21 SEPTEMBER 2012 |

|DATE OF DECISION: |3 OCTOBER 2012 |

|CASE MAY BE CITED AS: |ROBINSON v SPI ELECTRICITY |

REASONS FOR DECISION

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Catchwords: 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.

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|APPEARANCES: |Counsel |Solicitors |

|For the Plaintiff |Mr Horner |Maurice Blackburn |

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|For the Defendant |Mr Batten |Minter Ellison |

HIS HONOUR:

Mr Robinson commenced employment with the defendant’s predecessor, the SECV, on 6 January 1986. He lodged a workcover claim dated 8 March 2011 alleging that he sustained injuries to his back on Tuesday 1 February 2011 when performing gas meter reading duties. He has remained off work since 1 February 2011 and claims weekly payments of compensation and medical treatment expenses. The defendant has denied liability on the grounds that he did not sustain injury on that date and raises a jurisdictional issue as to whether he is able to allege that his condition arose throughout the course of his employment.

Mr Robinson gave evidence that for the past 10 years of his employment he has worked as a Field Services Representative which required him to read electricity and gas meters and to connect and disconnect power in urban and rural locations. He said that he worked 37.5 hours per week from 8 a.m. to 4.50 p.m. Monday to Friday. He told the court that in order to perform these duties he was required to travel between Traralgon and Warragul which required him getting in and out of his vehicle up to 400 times per day. He told the court that access to the properties could involve him in walking on uneven terrain and opening and closing gates and climbing over fences. He estimated he may have to open and close as many as 50 gates in one day.

Mr Robinson gave evidence that he experienced back symptoms as a result of a fall in the course of his employment on 12 August 2005 which required him to take the afternoon off work and attend his general practitioner on one occasion. He told the court that although he completed an incident report form he did not lodge a workcover claim in relation to that incident. He told the court that he also experienced back pain in December 2010 but kept working without complaint and did not receive medical treatment. He said he then took annual leave during the second half of January 2011 as his wife had obtained new employment and he need to stay home to look after his 10 year old daughter and 7 year old son. Mr Robinson gave evidence that he did not work on Monday 31 January 2011 as it was his rostered day off and returned to work on Tuesday 1 February. He told the court that he was required to attend 17-18 sites between Longwarry and Traralgon, a distance of 250km-280km, which required him to get in and out of his car and open numerous gates on properties. He said that over the course of the day his back became sorer and sorer so much so that by the end of the day he could barely move. He said that he was in “a hell of a lot of pain”.

Mr Robinson gave evidence that he attended Dr Olukolu in the afternoon and was prescribed anti inflammatory medication, advised to take panadol and certified unfit for work for the rest of the week. He told the court that the following day he attended Mr Robinson, a clinical masseur, for treatment and was subsequently referred by his doctor to Mr Malham, Neurosurgeon, who in turn referred him to Dr Verrills, musculoskeletal Physician. He told the court that he continues to suffer from constant lower back pain which worsens with activity and that he has not been offered light duties by his employer.

In cross examination, he agreed that in his workcover claim form dated 8 March 2011, he did not disclose that he had suffered from a previous back complaint or the incident where he fell on 12 August 2005. He agreed that he applied for 4 weeks leave in January 2011 because his wife commenced new employment and he needed to take care of his children and that he was unhappy when he was only granted leave for the last two weeks of January. He told the court that on 1 February he worked for approximately 5 hours before he arranged for his wife to make him an appointment to see his doctor, who he saw at 3.23 p.m. because of increasing back pain. He agreed that he had to attend 16 industrial sites on 1 February between Traralgon and Longwarry, which he said, included a timber mill and 3 connection/disconnection jobs at the end of the day. He agreed that he told his supervisor, Mr Thomas, that he had an appointment to see his doctor that afternoon and agreed that he did not tell him the reason for the appointment. He gave evidence that he could not recall telling his masseur, Mr Robinson, on 4 February, that his pain “happened about a week ago” and told the court that if he made that record he must have made it up. He also told the court that he did not tell Mr Poulton, his Manager, during a telephone conversation on 2 February, that he hurt his back “lifting or playing with his children before 1 February”. Mr Robinson told the court that if Mr Poulton gave this evidence, “he is lying”. He also denied telling Mr Movcham, a work colleague, that he suffered back pain as a result of lifting his child at home. He also told the court that if Mr Movcham gave that evidence, “he is a liar”. He told the court that he went to work on 1 February with back pain and it gradually got worse during the course of the day.

Mr Robinson gave evidence that he has not worked since 1 February 2011, has not made any effort to return to work and is receiving income protection assistance. He said that his job involved bending and twisting particularly when he was required to get in and out of his vehicle during the course of a working day. He agreed that he played with his children whilst looking after them in January 2011 but did could not recall lifting his 7 year old during that period. Mr Robinson agreed that he has other medical conditions including gout, plantar fascitis and anxiety/depression. He also agreed that since ceasing work he has become a house husband.

A DVD was shown to Mr Robinson during cross examination depicting him walking briskly with his wife and crossing a road whilst carrying a loaf of bread. He agreed that he is able to walk for approximately one hour or so depending on his pain level.

Mrs Robinson gave evidence that she returned to work after the Christmas break in 2010 on 4 January 2011 and arranged for her father to take care of the children until her husband commenced leave in mid January. She told the court that she did not see her husband lift the children nor did he tell her that he did whilst he was caring for them over that period. She told the court that her husband regularly mentioned to her that he was experiencing back pain and would ask her to massage his back or put a heat pack on it. She told the court that they regularly walk together for exercise purposes and that her husband would regularly take panadol if he was in pain. In cross examination, she gave evidence that she believes she was at home with her husband on 28 January, can recall her husband complaining of back pain on 31 January 2011 on his rostered day off but cannot recall whether she made the doctors appointment for him on 1 February. She agreed that her husband was not happy that his request for leave for all of January was refused.

Mr Poulton, Manager of Field Data Collection, gave evidence on behalf of the defendant. He told the court that he has been employed with the defendant and its predecessor for a period of 18 years. He gave evidence that at approximately 10.30 a.m. on 2 February 2011, Mr Robinson rang him to inform him that his doctor had given him the rest of the week off. He said that he asked Mr Robinson what happened and was told that he was “playing with or mucking around with the kids”, or words to that effect. In his statement to an investigator dated 6 April 2011, Mr Poulton said that Mr Robinson had told him when he questioned him as to how he hurt his back that it was caused by; “lifting my kids or something similar to that”. He told the court that Mr Robinson did not tell him the injury occurred at work or that work caused it. He gave evidence that field work is a physical job which involves constant walking but is not physically demanding. In cross examination, he conceded that he has not been involved in field work for over 8 years and did not have regular contact with Mr Robinson but had a clear recollection of his conversation with him on 2 February. He agreed that he told the defendant’s workcover officer, Ms Lister, that Mr Robinson had told him that he had injured himself because “he had done something at home”, without more detail being given. He said that in his opinion, the job as a field officer is not physically demanding even though it may require walking up to 6 hours per day, climbing of stairs, prolonged driving and being required to get in and out of a car up to 400 times per day and being required to regularly open and close gates.

Mr Thomas gave evidence on behalf of the defendant. He told the court that he has been employed by the defendant for a period of 10 years as a Senior Field Representative and is Mr Robinson’s supervisor. He told the court that he allocated the list of installations that Mr Robinson was required to perform on 1 February 2011. He told the court that some of these installations were rural and others were in town which included a hospital and milk factories. He gave evidence that the meters were generally located between knee and chest height and most of the locations involved the opening and closing of cyclone gates. He said that the tasks involved bending and twisting. He recalled that on 1 February Mr Robinson appeared at his office in the mid-afternoon and he informed him that he had to attend a house in Moe for an electrical connection and that is when Mr Robinson told him that he had a doctor's appointment arranged that afternoon. He told the court that Mr Robinson did not tell him that he was suffering from a back problem or that he had sustained an injury. He gave evidence that Mr Movcham told him three or four weeks later of what Mr Robinson told him was the cause of his back problem. In cross examination, he told the court that he has daily contact with Mr Robinson and that he never mentioned to him that he had injured his back or that his back problem was as a result of lifting or playing with his children. He agreed that the duties of a Field Representative involved reaching upwards, leaning over fences and bending and twisting.

Mr Movcham gave evidence on behalf of the defendant. He told the court that he has been employed as a Field Services Officer for 25 years, is a good friend of Mr Robinson and would see him almost daily in the course of his employment. He said that in general terms a field services officer is required to read electricity meters and connect/disconnect power to domestic and industrial sites which involves city, town and rural work. He told the court that the job involves a lot of travel, walking up to 6 hours per day on even and uneven ground, ascending and descending stairs, driving up to 4 hours at a time, getting in and out of a vehicle approximately 400-550 times per day, lifting, pushing and pulling gates, reaching up and bending. He told the court that field officers are also required to use an operating stick when working with fuses which is wooden, has 3 sections, each of which is 3m in length and weighing approximately 6kg. Mr Movcham gave evidence that he went on holidays during the first 2 weeks of January 2011 and when he returned Mr Robinson then took annual leave. He said that he could not recall having a conversation with Mr Robinson in the week preceding Tuesday 1 February and could not recall having a conversation with him prior to that time regarding any back complaint that he may have bee suffering from. Mr Movcham gave evidence that he definitely did not tell Mr Thomas that Mr Robinson had told him that he had hurt his back lifting his children.

Dr Olukolu reported that Mr Robinson presented at the clinic on 1 February 2011 with a flare up of chronic back pain and subsequently a diagnosis of lumbar osteoarthritis was made. Mr Robinson provided a history that his work involved a lot of moving in and out of a car which aggravates the pain for which he uses Mobic. On 28 February 2011, the clinical records disclose that Mr Robinson attended the clinic and requested Dr Olukolu refer him to a specialist and an MRI scan. He requested a letter for work because he believed work may have contributed to the back pain as his job as a meter reader involved lots of repetitive movement up to 300 times per day getting in and out of a car, walking and bending. An x ray of the lumbosacral spine dated 11 February 2011 indicated L3/4 discopathy. A CT scan of the lumbar spine taken on 17 February 2011 indicated minor broad based disc bulges at L3-4 and L4-5 levels with no notable central canal or foraminal narrowing. It was also noted that there were minor facet joint degenerative changes of the mid and lower lumbar spine. In a medical questionnaire completed by Dr Olukolu on 28 March 2011, he noted that Mr Robinson presented with a flare up of back pain on 1 February and stated that; “he saw a chiropractor a week prior to presentation on the 01/02/2011 for same pain”. During his evidence, Mr Robinson confirmed that he arranged for Dr Olukolu to alter the questionnaire on the basis that he did not see a chiropractor one week before 1 February. In her report dated 6 August 2012, Dr Olukolu expressed the opinion that the kind of work Mr Robinson did for the past 26 years would have significantly caused the degenerative changes in his back. She is also of the opinion that with the appropriate pain treatment he should be able to return to modified duties not involving too much repetitive movement of the back.

The clinical notes of remedial masseur, Mr Robinson, were tendered. These records indicate that Mr Robinson attended for treatment on the following dates prior to 1 February 2011 in relation to low back pain; 24 April 2009, 10 July 2009, 8 August 2009, 10 August 2009, 18 May 2010, 3 September 2010 and 2 December 2010. The records also reveal that he complained to his masseur on 24 April 2009, 10 July 2009, 18 May 2010 and 3 September 2010 that he experienced back pain “getting in and out of his work car”. On 18 May 2010, Mr Robinson made a notation that he asked Adam if it was possible to get a higher work car to take the strain off his back. On 4 February 2011 the masseur recorded: “Lx/hip pn, happened about a week ago, hurts to “get in and out of car at work, more so getting out of car”.

A medical report of Mr Malham, Neurosurgeon, was tendered. Mr Malham reported that he first saw Mr Robinson on 5 April 2011 on referral from Dr Olukolu. He obtained a history that Mr Robinson sustained a work injury on 1 February secondary to his significant bending twisting activities with route reading and the physical requirements of walking up to 6 hours per day, driving 4 hours at a time, entering and exiting a car up to 400 times per day, lifting, pulling and pushing gates on rural properties and carrying hand held electronic recording devices. Mr Malham noted that he told Mr Robinson that he had symptomatic low lumbar facet joint pain, most likely from facet joint capsular tear and that he should walk regularly, avoid repetitive bending/twisting activities and no lifting greater than 10kg. Mr Malham referred Mr Robinson to Dr Verrills, musculoskeletal physician.

A medico-legal report from Mr Khan, Orthopaedic Surgeon, dated 28 April 2012 was tendered based on his examination of Mr Robinson on 22 February 2012. Mr Khan obtained a history from Mr Robinson that his back symptoms developed over a period of time during his occupation and that he first reported it on 1 February 2011. Mr Robinson told him that his symptoms developed insidiously for a period of 8 years and that he had received remedial masseur treatment as well as applying heat bags for relief. He also told Mr Khan that he received medial branch block treatment from Dr Verrills in September 2011 which gave him limited relief and was waiting to undergo radiofrequency denervation treatment. Mr Khan reported that he arranged for Mr Robinson to undergo an MRI scan on 2 March 2012 which revealed evidence of disc desiccation at L3-4 and L5/S1 levels associated with facet joint hypertrophy at the L4-5 level. There was also evidence of annular tear with mild disc bulge at L5/S1 and mild disc bulges were noted at L3-4 and L4-5. Mr Khan is of the opinion that Mr Robinson’s employment duties, as described by him, has significantly contributed to his condition and has left him with a residual partial disability and chronic back pain. He recommends that Mr Robinson attend a pain management clinic for treatment. He also recommends that Mr Robinson undergo a re-training program and that he should avoid work involving excessive bending, twisting and turning of his spine or keeping his spine bent for long periods or lifting weights more than 2kg and should avoid activities requiring extension after forward flexion.

The defendant tendered medical records from the Central Gippsland Family Practice which records that Mr Robinson attended on 4 December 2003 (lower back strain), 30 April 2004 (ache between shoulder blades extending into neck aggravated by driving and hanging clothes),12 August 2005 (fall at work), 9 March 2006 (sacro-iliac joint pain), 6 May 2008 (back pain), 8 September 2008 (lower back pain) and 1 February 2011 as detailed above. Mr Robinson attended this clinic on regular occasions for other medical ailments including; gout, plantar fascitis and anxiety/depression. A number of medico-legal reports of Mr P Battlay, were tendered relating to his examination of Mr Robinson on 29 March 2011. Mr Battlay obtained a history from Mr Robinson that he had been aware of muscle problems in the past but that they had not incapacitated him and he had been receiving massage treatment every few months that had relieved his problems. He told Mr Battlay that his lower back pain came on gradually on 1 February which he attributed to the general nature of his duties which required him to frequently get in and out of his vehicle to read meters. Mr Battlay diagnosed that Mr Robinson had lumbar spondylosis aggravated by his work duties. After being provided with an investigation report, medical reports and records, Mr Battlay reported on 20 July 2011 that, noting the doctors records that there had been no mention of back pain until 1 February 2011 and the relative benign state of his spine in relation to degeneration, that; “there is a very strong case to be made out he was in fact injured while he was on holidays rather than doing his job” and accordingly, he concluded that employment was not a significant contributing factor to his back problem. On being provided with the notes of Mr Robinson, masseur, regarding Mr Robinson’s past attendances, Mr Battlay provided a further supplementary report dated 16 August 2011 noting a history was obtained by the masseur that an injury occurred a week prior to his attendance on 4 February when he was on annual leave. Mr Battlay maintained his opinion that there was an aggravation when he was not at work and his duties were not a contributing factor to his injury.

The defendant also tendered a medico-legal report of Mr Polke, Orthopaedic Surgeon, dated 31 July 2012. He examined Mr Robinson on that date and was provided with numerous medical records, some of which were not tendered. Mr Polke obtained a history from Mr Robinson that when he returned to work on 1 February after being on annual leave he was reading meters, travelling with his laptop and downloading the readings off the meter stations and by the end of the day he suffered severe low back pain and was in “absolute agony and could not move”. Mr Robinson told him that he was taking 20mg of Nexium, Progout, Lexapro and Panadeine forte. Mr Polke diagnosed that he suffers from minor lumbar disc degeneration associated with mild facet joint arthropathy. He believed that work activity of getting in and out of a car many times a day could aggravate his back pain. Mr Polke is also of the opinion that Mr Robinson would be fit for work as a meter reader but avoiding frequent getting in and out of a car. He believes the work contribution to his condition has mostly ceased.

Submissions: Jurisdictional Issue

The defendant submitted that any reliance by Mr Robinson on his alleged injury arising throughout the course of his employment is not justiciable before the court. Mr Batten contended that Mr Robinson is restricted to proving that he sustained injury to his back on 1 February 2011, notice of which was given by him to the defendant on 2 February 2011, pursuant to S 102 of the Act, the particulars of which were contained in the claim form dated 8 March 2011 as required by S 103 of the Act. Mr Batten noted that in his claim form, Mr Robinson alleged that he had injured his lower back on 1 February 2011, at 8.00 a.m. when he was performing the task of gas meter reading and his back pain increased as the day went on. He also noted that Mr Robinson did not disclose or seek to rely on any past history of injury or incidents in the course of his employment. Mr Batten submitted that it was this claim and not any other that the defendant considered and decided to reject in accordance with S 109 of the Act and on this basis the court is restricted to determining Mr Robinson’s entitlement to compensation under the Act for the alleged injury occurring on 1 February 2011 and not any other injury that may have occurred on other dates or throughout the course of his employment. In support of his submission, Mr Batten referred the court to the decisions of General Motors-Holden’s Ltd v Mete[1] and Elder v Mayne Nickless Limited[2].

Mr Horner submitted that Mr Robinson’s entitlement under the Act should not be determined by a restrictive interpretation of the contents of his claim form and the court has power, by virtue of S 39 of the Act, to inquire into, hear and determine any question or matter under the Act. On this basis, he contended that the court can consider all of the evidence presented to determine whether Mr Robinson sustained an injury arising out of or in the course of his employment generally and on 1 February 2011.

The Statement of Claim filed on 10 February 2012 alleges (paragraph 5) that Mr Robinson suffered injury arising out of or in the course of his employment. It does not specify a particular date of injury. The Defence filed on 10 April 2012, denies the allegations contained in paragraph 5 of the Statement of Claim. It does not raise any issue concerning the allegation that injury arose out of or in the course of employment or raise any “special defence”. Furthermore, the jurisdictional issue raised by the defendant was not raised with the court until the commencement of the hearing.

S 82 of the Act contains the general entitlement provision to the effect that a worker is entitled to compensation in accordance with the Act if he/she suffers an injury which arises out of or in the course of employment. Division 3 of the Act sets out the claims management and procedural provisions which require that; the employer is to keep a register of injuries (s 101); notice of an injury must be given to an employer within 30 days after the worker becomes aware of the injury (s 102(1)); a worker is not entitled to recover compensation unless notice of the injury has been given within 30 days (s 102 (5)), subject to the exceptions contained in sub-section (6); a claim for compensation must be in a form approved by the Authority (s 103 (1)); and, the Authority must give written notice of a decision to accept or reject a claim for compensation within 28 days of receiving the claim (s 109 (2)). The preliminary issue to determine is whether the court is deprived of jurisdiction to determine the issue of whether Mr Robinson sustained injury throughout the course of his employment. Although the defendant referred the court to the decisions in Mete and Elder in support of its submission, I am also aware of conflicting decisions given by Judge Stabey in Klucovski v ACC[3], and Judge Mulvany in Solano v ACC[4]. There is also a later decision of Judge Strong in Crosswell v VWA & MMI[5] which supports the defendant’s submission.

In Mete, the worker lodged a claim form alleging “strained right ribs” occurring on a specific date for which liability was accepted. At the hearing he also sought to rely on a “back injury” as a contributing cause to his ongoing incapacity and therefore continuing entitlement to compensation under the Act. Judge Just held that the expression “an injury” in the termination provision in s 114, as it then was, meant an injury in respect of which a notice of injury had been given to the employer because in the absence of such notice there is no entitlement to recover compensation. After considering the procedural provisions in the Act at that time, which are not dissimilar to the current provisions, he held, “that not only a notice of injury but also a claim for compensation in respect of the injury must be provided to the employer as vital steps in pursuing a worker’s rights under the Act”. He held that the relevant injury is the injury alleged, that being, “strained right ribs”.

In Klucovski, the worker alleged in his claim form that he sustained injury to his back on 20 February 1986 when he was “trying to free conveyor which was caught by platform”. At hearing the worker sought to rely on the heavy nature of his work over a number of years as contributing causes to his degenerative lumbar spine condition causing his continuing incapacity for work. The respondent unsuccessfully sought to limit the Tribunal’s determination of the issues to the events occurring on 20 February 1986. After noting that the respondent did not allege that it had been taken by surprise or that it was prejudiced by the worker seeking to rely on activities performed throughout the course of his employment and after referring to the objects of the Act, as they then were; to provide suitable and just compensation to injured workers; to speedily and efficiently determine claims for compensation and deliver compensation to injured workers; and, to reduce the cost to the Victorian community of accident compensation; Judge Stabey held that; “the objects…would be completely frustrated if the submission (of the respondent) is upheld..”.

In Solano, the worker in his claim form alleged an injury to his right shoulder on 14 February 1986 while pulling a trolley. The respondent submitted that the Tribunal was limited to determining the workers ongoing incapacity in relation to the claimed injury. The worker submitted that the issue was not confined to the injury specified in the claim form but whether incapacity was attributable to “an injury” arising out of or in the course of employment. Judge Mulvany referred to the decisions in Mete and Klucovski and the relevant substantive and procedural provisions of the Act. He said; “The concept of “notice” in legal proceedings is distinct from the notice required by s 101 of the Act. It is a fundamental law of procedure that notice be given of all relevant particulars of an action. A party is entitled to know what case it must meet. In such circumstances the provision of a prescribed form may be relevant to the question of whether sufficient notice in proceedings has in fact been given. It is erroneous to consider that such notice can only be given by the submission of a claim form…. the claimant is not, subject to the provision of adequate notice, restricted to the allegations in the prescribed form”. Judge Mulvany also held that the respondents submission, if upheld, “ would, in my view, be clearly inconsistent with the objects of the Act particularly: to speedily and efficiently determine claims for compensation and to deliver compensation to injured workers. If the effect of the submission of a prescribed form were as submitted by Mr Hogan, the result would inevitably be the creation of an entangling web of procedures and legalism that would clearly offend against the objects of the Act”. Judge Mulvany concluded by ruling that in any proceedings it is necessary that adequate notice be given by the worker of any condition that will be alleged is contributing to his incapacity and if done, the Tribunal had jurisdiction to determine the issue.

In Elder, the worker lodged 2 claims relating to a respiratory condition said to have occurred from a spillage incident on 30 August 1994 but did not assert that the general circumstances of his employment produced or aggravated the relevant injuries. The worker sought to expand the activities relied on to include the general circumstances of the workers employment in a letter dated 27 August 1996 to the defendant’s solicitors. The employer submitted that the court could not determine the allegation made in the pleadings that the general nature of the workers employment produced or aggravated his condition because no claim in that regard had been made in accordance with s 103 of the Act. After considering the decisions in Klucovski and Solano and the procedural provisions of the Act, Judge Strong held; “The purpose of s 103 is to ensure that timely and sufficient notification of claims is given so as to enable claims to be considered and dealt with in the required way. On no view can the particulars given in the letter 27 August 1996 stand in place of notification of the kind required by s 103. It follows that there has been no decision of the Authority, authorised insurer or employer in response to any such claim. Mr Brookes jurisdictional point must therefore be upheld and it follows that I cannot entertain the plaintiff’s claim insofar as it is based on the general circumstances of the plaintiff’s employment”.

In Crosswell, Mr Batten who appeared for the defendant submitted that the court had no jurisdiction to determine any question or matter relating to an injury which had not been the subject of a claim for compensation. In that case, the worker lodged a claim form alleging that he sustained a back injury on 7 October 1987 when he fell off a ladder. In the Statement of Claim, it was alleged that the worker sustained the injury over a period of time due to the arduous and repetitive nature of the work performed and in particular suffered injury when on or about 7 October 1987 he fell from a ladder. Judge Strong held that the expanded claim was not a “question or matter arising out of” the decision to terminate, because such alleged injuries have never been the subject of a claim”. He ruled that he could not adjudicate on any claim made where it was alleged the incapacity arose from injury said to occur due to the arduous and repetitive nature of the plaintiff’s work or injury which occurred by way of gradual process.

More recently, in the matter of Fordham v Rosma Fishing Co Pty Ltd[6], the worker sought to expand his claim by alleging that his back injury was a result of heavy lifting and repetitive strain due to the nature of his employment as a deckhand. Magistrate Wright disallowed the proposed amendment on a number of grounds including the fact that no claim form had been lodged apart from one dated 26 February 2010 whereby it was alleged the back injury occurred consequent to a foot injury sustained on 24 February 2007 leading to a limp. He noted that there had been no Notice of Rejection pursuant to s 109 and no conciliation certificate pursuant to s 49 (1) and additionally the court did not have jurisdiction pursuant to s 39 of the Act.

Conclusion: Jurisdictional Issue

The jurisdiction of this court to determine the proceeding is contained in s 39 of the Act. The court has jurisdiction to inquire into, hear and determine any question or matter under the Act out of any decision of the Authority, employer or a self insurer or any recommendation or direction of a conciliation officer. In this matter, it is not in dispute that; Mr Robinson did not give notice of prior injury, save and except for the incident and injury occurring on 12 August 2005; did not lodge a claim form alleging a back injury throughout the course of his employment; the Authority has not made a decision and issued a Notice in accordance with s 109 in relation to an injury occurring throughout the course of his employment and a conciliation certificate has not been issued relating to any such claim. Notwithstanding that the pleadings referred to a period throughout the course of employment, that the defendant did not plead a “special defence”, raise the jurisdictional issue until hearing and the court has heard evidence relating to all issues, I find that I do not have jurisdiction to determine the merits of the expanded claim having regards to the provisions of the Act and the reasons given in Mete, Elder and Crosswell.

Conclusion

I find that Mr Robinson was experiencing low back symptoms when he commenced work at 8 a.m. on 1 February 2011. This finding is consistent with the evidence he gave and with what he recorded on his claim form. I find that despite his evidence to the contrary, an incident did in fact occur at home one week prior to 4 February whilst he was on annual leave. This finding is consistent with the history given by him to his masseur when he attended him on 4 February and with what he told Mr Poulton on 2 February when he reported that his doctor had certified him unfit for work for the rest of the week. I do not accept his assertion that his masseur invented the history he recorded or that Mr Poulton was untruthful. Although I have found that Mr Robinson did not give truthful evidence concerning the incident that I have found did occur whilst on annual leave, I do accept his evidence that on 1 February his back symptoms gradually got worse during the course of the day as a result of performing his normal work activities and in particular the need for him to get in and out of his vehicle whilst attending the various locations he was allocated that day. I accept that he was being truthful that by the end of the day he was in “a hell of a lot of pain”. I find that the “incident” at home and the work he performed on 1 February 2011, significantly aggravated his pre-existing degenerative back condition.

Mr Robinson was able to work until 1 February despite experiencing intermittent symptoms of low back pain from 2003. The “incident” at home coupled with the work he performed on 1 February 2011 has resulted in his incapacity for his pre injury employment from that date.

I find that Mr Robinson has remained incapacitated for his pre injury duties as a field services representative from 1 February 2011 and after receiving the appropriate treatment as recommended by his treating doctors should be fit for suitable work not involving repetitive bending, twisting and lifting activities. Accordingly, Mr Robinson is entitled to compensation pursuant to the provisions of the accident Compensation Act 1985.

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[1] (1986) 1 Vic ACR 41. 18 September 1986 Judge Just.

[2] Judge Strong 12 February 1997. [1997] VCC 3.

[3] (1986) 1 Vic ACR 260. 18 September 1986.

[4] (1989) 2 Vic ACR 318. 21 April 1989.

[5] 20 August 1998.

[6] 11 November 2011.

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