Case review: WorkCover serious injury certificate granted (Mengot v The Muscle Pot)

A 2023 worker’s compensation claim involving a worker at the Vic Markets is a reminder about the factors that a Court considers when determining if a worker is entitled to WorkCover lump sum compensation. In the case of Vedrana Mengot v The Mussel Pot Pty Ltd, the injured worker was awarded a WorkCover serious injury certificate enabling her to pursue lump sum compensation after a workplace injury.

Vedrana Mengot injured her back in 2019 while working at the Victoria Markets for The Mussel Pot Pty Ltd.

Ms Mengot’s work was physically demanding, and she was frequently carrying out repetitive, awkward, and heavy tasks involved in handling deliveries and preparing food. This included lifting boxes of seafood and transferring them into plastic containers and cleaning and cooking muscles.

Early on a Saturday morning in October 2019, she was working without help, and was carrying out her normal duties when she lifted a box of muscles from under a bench and felt a pop in her back.

After the injury, Ms Mengot went to the Royal Melbourne Hospital and then to her local doctor. She had scans of her lower back that revealed disc bulges and herniations to her lower back, which were interfering with the nerve roots.

Ms Mengot lodged a WorkCover claim after her workplace injury.

Despite having a diagnosis and seeking ongoing medical treatment to resolve or reduce her symptoms, Ms Mengot experienced ongoing difficulties due to her back pain. She attempted to return to work approximately two weeks after the injury, but was unable to remain working.

Ms Mengot brought a WorkCover common law claim to sue her employer. In order to get access to compensation for her pain and suffering, she was required to first prove that she had suffered a “serious injury” as a result of the injuries she had sustained during her work for the employer (“the defendant”).

You can read more about WorkCover common law eligibility and entitlements in our earlier blog, “WorkCover common law damages in Victoria”.

Ms Mengot’s employment history and the nature of her injury were not contested by the defendant. However, the defendant argued that the injury was not severe enough to meet the statutory threshold for a serious injury certificate.

Ms Mengot’s symptoms, including chronic back pain, weight gain, sleep disturbances, and limitations in daily activities, were thoroughly documented through medical reports and Ms Mengot’s own evidence at the hearing.

Before the hearing, the defendant took screenshots of Ms Mengot’s Facebook profile. There was a picture of Ms Mengot, taken on a beach with her son, showing her jumping in the sand. A further photo showed her sitting on a motorbike.

In her evidence in Court, she explained that she hadn’t ridden the motorbike but simply posed on the bike for a photo. There were other photos of her at the snow, jumping in the air for photos. She explained that they were at the snow for a day trip as her lad had not previously seen snow.

In analysing the evidence, His Honour Judge Ginnane [56] found:

“…the screenshots were of limited probative worth. They did little to contradict the plaintiff’s account of her pain and functional restrictions or advance the defendant’s case. They struck me, however, as corroborating the plaintiff’s contention expressed in her affidavit evidence that she spends any spare time she has with her son.”

The Court considered a number of other factors, including:

• the severity of the injury;
• its impact on Ms Mengot’s daily life; and
• the extent of her impairment compared to similar cases.

Despite some challenges to Ms Mengot’s credibility regarding the frequency of her pain and potential surgical intervention, the Court ultimately found in favour of Ms Mengot.

The Court determined that Ms Mengot’s injury, although not constant, caused significant and ongoing pain and limitations that substantially affected her quality of life. Activities such as work, household chores, and recreational pursuits were impacted, leading to a reduction in employment prospects and a need for adaptations in daily life.

Based on these considerations, the Court granted Ms Mengot a serious injury certificate, recognising the seriousness of her impairment and its enduring consequences. The decision underscored Ms Mengot’s entitlement to pursue WorkCover common law damages and seek compensation for the lasting effects of her work-related injury.

If you’ve been injured at work and suffered a serious injury due to the negligence of your employer, you may be entitled to WorkCover common law damages.

Contact a Polaris lawyer for free advice about your eligibility and entitlements. It costs you nothing to find out where you stand.