Kothe v VWA [2024] VCC 292 (19 March 2024)

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By Stuart Eustice, Partner, Holly White, Associate, and Zoe Vlahogiannis, Lawyer

Introduction

The Country Court of Victoria was required to rule on a “serious injury” application under s335 of the Workplace Injury Rehabilitation and Compensation Act 2013 brought by the Plaintiff.

Factual Background

In 2016, while working at a retail store the Plaintiff suffered an injury to her right wrist/hand requiring surgery in 2017.  While the Plaintiff was recovering from her 2017 surgery, she commenced work as a DJ.

The plaintiff claimed to have suffered a serious injury by reason of the pain and suffering consequences of her right wrist/hand injury.

Submissions

The Plaintiff submitted that her wrist injury was a “serious injury” as it caused her significant ongoing pain and had forced her to modify how she went about her day-to-day life including using a small DJ deck.

In response, the VWA contended the Plaintiff’s wrist injury did not meet the definition of a serious injury. The VWA argued the Plaintiff had recovered from her wrist injury by 2018 as evidenced by her DJ performance and that she was now instead suffering from an unrelated lower back injury which impacted on her everyday life.

Both parties provided medical reports supporting their positions to the court and the VWA tendered videos of the Plaintiff performing as a DJ which they contended showed the Plaintiff had full use of her right wrist.

Conclusion

The Court noted the Plaintiff had failed to mention her lower back condition to her medical-legal experts and had downplayed this condition in her affidavit material.

As a result, the Court determined the Plaintiff’s medico-legal reports were compromised by the authors’ lack of knowledge of the Plaintiff’s back condition.

The Court concluded that while the Plaintiff undoubtably suffered an injury to her wrist in 2016 she had experienced a reasonably successful recovery as evidenced by her ability to begin her DJing career. The Plaintiff’s current impairment was therefore a result of other factors including the Plaintiff’s lower back issue, not the Plaintiff’s wrist injury.

Relevance

This case stands as a reminder of the importance of ensuring that all Medico-legal experts are given the full context of a plaintiff’s co-morbidities and conditions. As the court aptly put “medical opinions are often only as good as the reliability of the information provided to the medical examiner”.

Care should therefore be taken to ensure letters of instruction are detailed and that experts are provided with the relevant resources required to come to an informed conclusion.

For further information, please do not hesitate to contact us.

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