A & L Windows Pty Ltd v Yildirim - [2022] VSCA 46

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2021 0047

A & L WINDOWS PTY LTD	Applicant
v
SERKAN YILDIRIM & ORS (according to the attached Schedule)	Respondents

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JUDGES:	BEACH, KENNEDY JJA and O’MEARA AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	28 March 2022
DATE OF JUDGMENT:	1 April 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 46
JUDGMENT APPEALED FROM:	[2021] VSC 139 (Quigley J)

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ADMINISTRATIVE LAW – Judicial review – Medical panel – Workplace injury – Primary judge quashed medical panel opinion, concluding that panel erred in interpretation and application of ‘no current work capacity’ test, failed to take into account relevant matter, made finding which was not open, and failed to give adequate reasons – Medical panel did not err as found by primary judge – Medical panel’s reasons not inadequate – Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480 applied – Appeal allowed.

WORDS AND PHRASES – ‘Current work capacity’ – ‘No current work capacity’ – ‘Suitable employment’ – Workplace Injury Rehabilitation and Compensation Act 2013, ss 3 and 163.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P H Solomon QC with Ms C Spitaleri	Lander & Rogers Lawyers
For the First Respondent	Mr A G Uren QC with Ms A Smietanka	Zaparas Lawyers Pty Ltd
For the Second to Fourth Respondents	No appearance	DLA Piper Australia

BEACH JA
KENNEDY JA
O’MEARA AJA:

In 2013, Mr Serkan Yildirim (‘the first respondent’) commenced employment with A & L Windows Pty Ltd (‘the applicant’) as a sash maker. On 5 December 2016, he was placed on light duties. On 19 December 2016, he completed a WorkCover claim form, in which he alleged that he had suffered psychological and psychiatric injury throughout the course of his employment, due to the mental and physical nature of his job including a heavy workload, a pressurised work environment, high quotas, heavy work demands and expectations and a negative work environment.

The applicant’s insurer accepted the first respondent’s WorkCover claim, and he received weekly payments pursuant to the Workplace Injury Rehabilitation and Compensation Act 2013 (‘the Act’) between 5 December 2016 and 1 June 2019. He performed light duties for the applicant for approximately 11 months from 5 December 2016, but thereafter ceased working.

On 25 January 2019, the applicant’s insurer wrote to the first respondent advising him that his entitlement to weekly payments under the Act would cease on 1 June 2019. The reason given was that weekly payments would, by then, have been paid to the first respondent for a total of 130 weeks and the first respondent had ‘a current work capacity’; alternatively, he had ‘no current work capacity but it [was] not likely to continue indefinitely’.

The first respondent disputed the insurer’s decision and, on or about 29 May 2019, he referred the decision to the Accident Compensation Conciliation Service (‘the ACCS’) for conciliation. On 10 September 2019, the ACCS referred two medical questions to a medical panel pursuant to s 284 of…

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: [2022] VSCA 46
Decision Date: 1 April 2022

CaseChat Overview and Summary

In the case of A & L Windows Pty Ltd v Yildirim, the dispute centred on the interpretation and application of the 'no current work capacity' test within the context of a workplace injury claim. The matter was heard in the Supreme Court of New South Wales. The appellant, A & L Windows Pty Ltd, challenged a decision by a medical panel that assessed the claimant's fitness for work, arguing that the panel had erred in its interpretation of the relevant legislation, failed to consider pertinent matters, and provided inadequate reasoning.

The primary legal issues before the court involved the interpretation and application of the 'no current work capacity' test as defined in the Workplace Injury Rehabilitation and Compensation Act 2013. The court had to determine whether the primary judge's decision to quash the medical panel's opinion was correct, specifically focusing on whether the panel erred in its interpretation, failed to consider relevant matters, and provided inadequate reasons. The court also considered whether the primary judge's determination that the medical panel's findings were not open to it was accurate.

The court found that the primary judge had erred in concluding that the medical panel had made a mistake in its interpretation and application of the 'no current work capacity' test. The court held that the medical panel's assessment was not flawed, and their reasons were sufficient. The reasoning followed the principles established in Wingfoot Australia Partners Pty Ltd v Kocak, where it was held that the court should not readily interfere with the decision of a specialist tribunal unless there was a clear error. The court concluded that the primary judge's decision to quash the medical panel's opinion was not justified and that the medical panel's findings were valid. Consequently, the appeal was allowed.

The final orders of the court included the allowance of the appeal, the setting aside of the primary judge's decision, and the reinstatement of the medical panel's opinion. The court further directed that the matter be remitted to the tribunal for any further action in accordance with the reinstated medical panel's findings.

Orders