A Kilsyth tradie has been granted leave to make claims against both the Transport Accident Commission (TAC) and the Victorian WorkCover Authority (VWA) after suffering two serious injuries in 2020 and 2021.
The TAC and VWA both tried to argue in the County Court of Victoria that the other party was solely responsible for the damages.
County Court Judge Liberty Sanger rejected this and found that the transport accident and the industrial accident were independent causes of a serious injury.
A Mr Muller, 53, sustained an injury to his right shoulder in a traumatic motor vehicle accident after his vehicle was rear-ended in August 2020.
The injury impacted his mental health severely, culminating in a suicide attempt.
He gave evidence in court to say his employer, Precise Carpentry, located in Kilsyth, offered great support and allowed him to return to work in early 2021 on lighter, supervisory duties.
In July 2021, when he and a team of four were carting sheets of plasterboard up four levels by passing them from ground level to the upper levels, the last plasterboard sheet fell from the grip of his co-worker and hit Mr Muller on the head and right shoulder.
His right shoulder was dislocated due to the force. His evidence was that his shoulder bone was hanging down his arm, and he “tore all the ligaments off [his] arm.”
Judge Sanger’s report indicated that had Mr Muller not been wearing a hard hat at the time, it could have been much worse.
Attempting to return to work on light duties, with a lifting restriction of five kilograms for four weeks, and a vision to gradually return to normal duties, Mr Muller found that he was unable to cope and stopped working in March 2023. He has not returned to work since.
Mr Muller was also diagnosed with silicosis around September 2021.
His claim to the VWA was approved for his silicosis injury without question, granting him a certificate for both his pain and suffering and loss of earning capacity.
His applications for injuries arising from the transport accident and the industrial accident were denied; therefore, Mr Muller began proceedings to gain a determination from the court.
Mr Muller’s credibility and reliability were not called into question, nor whether the injury he sustained would meet the standards of a ‘serious injury’, but whether the transport accident, the industrial accident, or both, caused Mr Muller’s serious injury.
The TAC stated that the consequences of the transport accident were not long-term because Mr Muller was “continuing to improve at the time of the industrial accident”.
The VWA instead claimed the industrial accident aggravated Mr Muller’s previous injury and that the two surgeries he underwent “returned (him) to the level of functioning that he had before the transport accident”.
Mr Muller provided three affidavits outlining his working history and the extent of his injury, as well as the ongoing effects of the injury.
He continues to seek treatment and is unable to “do physical work or any work, given his painful right shoulder”.
With numerous doctors’ reports submitted to the court, regarding both Mr Muller’s physical and mental health, it was clear his injuries were taking longer than expected to heal and he was experiencing sleep disturbances.
Judge Sanger said she was impressed with Mr Muller’s attempts to return to work and his passion for the work he was doing.
“I also found that he was a highly motivated and stoic worker who did all he could to return to work following both accidents,” she stated.
“I formed this view both on the basis of his expressed love of his work and affection for his employer, and also from the determination he showed to return to work following his suicide attempt.
“Mr Muller’s account of his injury and his symptoms was consistent with that obtained by the medical experts whose opinions were tendered as evidence that I relied on in this hearing.”
Despite the counsel for both organisations suggesting the medical evidence of differing doctors should be accepted as true, Judge Sanger took all reports into account.
“I was satisfied that on balance, the evidence established that Mr Muller was left with a long-term impairment of the right shoulder and arm following the transport accident and sustained an aggravation of his right shoulder and arm in the industrial accident, the aggravation itself being permanent.
“I was satisfied that the consequences of each of the impairments met the legal test for serious injury. I was thus satisfied that he was entitled to leave to proceed with a claim for damages for each of the applications.”
Judge Sanger granted Mr Muller leave to proceed with a claim for damages from the TAC, and a claim for damages for both his pain and suffering and loss of earning capacity from the VWA.
She would also hear from the parties on the question of costs.
