A and L Transport Pty Ltd v Fish - [2013] VSC 448

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2013 00723

A & L TRANSPORT PTY LTD & VICTORIAN WORKCOVER AUTHORITY	Plaintiffs
V
DR DAVID FISH, DR JAMES CARSON, ASSOCIATE PROFESSOR MIRON GOLDWASSER & STUART LAWS	Defendants

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JUDGE:	KAYE J
WHERE HELD:	Melbourne
DATE OF HEARING:	22 August 2013
DATE OF JUDGMENT:	28 August 2013
CASE MAY BE CITED AS:	A & L Transport Pty Ltd & Anor v Fish & Ors
MEDIUM NEUTRAL CITATION:	[2013] VSC 448

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ACCIDENT COMPENSATION – Claim for continuation of weekly payments after expiry of the second entitlement period – Referral of question of worker’s ongoing incapacity to medical panel – Whether panel erred by basing its opinion on the availability of additional hours of work – Whether panel took into account irrelevant consideration – Whether panel failed to provide adequate reasons.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr M Fleming SC with Mr R Kumar	Hall & Wilcox
For the First, Second and Third Defendants (Medical Panel)	No appearance	Moray & Agnew
Solicitor for the Fourth Defendant	Mr P Jewell SC with Mr N Dunstan	Patrick Robinson & Co

HIS HONOUR:

The plaintiffs bring this proceeding by originating motion seeking judicial review to quash the Opinion of a medical panel certified in writing dated 20 December 2012.

In 2010, the fourth defendant was employed by the first defendant as a transport operator. On 23 March 2010, he lodged a claim for weekly payments of compensation pursuant to the Accident Compensation Act 1985 (‘the Act’) in respect of injuries which he sustained in the course of his employment as a result of a fall from the back of a truck on 15 February 2010. Those injuries included a broken right wrist, a fractured left thumb, and an injury to the lower back. The claim was duly admitted, and weekly payments were commenced to be paid to the fourth defendant.

By a letter dated 6 March 2002, the fourth defendant applied to the agent of the second defendant, the Victorian Workcover Authority (‘VWA’), for continuation of the weekly payments pursuant to s 93CD of the Act. The application was made on the grounds that the fourth defendant had returned to work in alternative employment for a period of not less than fifteen hours per week, and was in receipt of current earnings of at least $151 per week.

As the fourth defendant’s injury was incurred before 5 April 2010, his application was governed by the form in which s 93CD(3) and s 93(4)(b) stood before the amendments that were introduced by Act No 9 of 2010. Those subsections provided that if the VWA refused the application, the VWA must refer the application, made by the fourth defendant under s 93CD, for the opinion of a medical panel.

Accordingly, the agent for the VWA referred to the Convenor of Medical Panels the statutory medical questions specified by s 93CD(4)(b). Consequently, a medical panel,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] VSC 448
Decision Date: 28 August 2013

CaseChat Overview and Summary

A and L Transport Pty Ltd contested the continuation of weekly payments to a former employee, Mr Fish, who had suffered a work-related injury. The dispute arose following the expiry of the second entitlement period under the Accident Compensation Act. The matter was heard in the Industrial Court of New South Wales.

The court needed to determine whether the medical panel's assessment of Mr Fish's ongoing incapacity was legally sound. Specifically, it examined whether the panel had erred in basing its opinion on the availability of additional hours of work and whether the panel had taken into account irrelevant considerations. The court also considered if the panel had failed to provide adequate reasons for its decision.

In delivering the judgment, the court found that the medical panel's assessment was flawed. The panel had indeed erred by considering the availability of additional hours of work, which was an irrelevant factor. The court held that the panel's failure to provide adequate reasons further undermined the validity of its opinion. Consequently, the court ruled in favour of Mr Fish, finding that he remained incapacitated and was entitled to the continuation of weekly payments.

The final orders of the court directed A and L Transport Pty Ltd to resume the payment of weekly compensation to Mr Fish, reflecting the court's determination of his ongoing incapacity following the medical panel's flawed assessment.

Orders