Abbott v Eptec Victoria Pty Ltd

[2011] VSC 267

Do Not Send for Reporting
IN THE SUPREME COURT OF VICTORIA		Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 6150 of 2010

MALCOLM ABBOTT

Plaintiff

v

EPTEC VICTORIA PTY LTD

DR PETER LOWTHIAN (as Convenor of Medical Panels pursuant to the provisions of the Accident Compensation Act 1985)

MEDICAL PANEL (constituted by Dr Andrew Newman-Morris, Mr Steven Leitl and Dr Peter Lowthian)

Firstnamed Defendant

Secondnamed Defendant

Thirdnamed Defendant

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JUDGE:	BEACH J
WHERE HELD:	Melbourne
DATE OF HEARING:	16 June 2011
DATE OF JUDGMENT:	21 June 2011
CASE MAY BE CITED AS:	Abbott v Eptec Victoria Pty Ltd & Ors
MEDIUM NEUTRAL CITATION:	[2011] VSC 267

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ADMINISTRATIVE LAW – Review of Medical Panel – Whether jurisdictional error – Whether error of law on the face of the record – Adequacy of reasons – Whether failure to consider relevant material.

ACCIDENT COMPENSATION – Review of Medical Panel – Whether jurisdictional error – Whether error of law on the face of the record – Adequacy of reasons – Whether failure to consider relevant material – Accident Compensation Act 1985, ss 5, 56, 67, 68 and 98C.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A.G. Uren QC with Mr A.D.B. Ingram	Melbourne Injury Lawyers
For the Firstnamed Defendant	Mr M.F. Fleming SC with Ms F.L. McKenzie	Lander & Rogers
For the Secondnamed and Thirdnamed Defendants	No appearance	Monahan & Rowell

HIS HONOUR:

Introduction

1. On 6 March 2007, Mr Malcolm Abbott, the plaintiff, commenced employment with Eptec Victoria Pty Ltd, the first defendant. On 18 November 2009, the plaintiff completed a claim form seeking impairment benefits pursuant to s 98C of the Accident Compensation Act 1985. The claim was in respect of an alleged injury to the plaintiff’s left foot, left leg and back, suffered during the course of the plaintiff’s employment with the first defendant.

1. Initially, the claim was rejected. However, on 22 February 2010, QBE Workers’ Compensation (Vic) Limited, on behalf of the first defendant, accepted liability pursuant to s 98C of the Act for “injury to the right (sic, left) foot and leg sustained in the course of [the plaintiff’s] employment to 18 September 2007”. In March 2010, the plaintiff sought conciliation in respect of the failure by QBE to accept liability for his back condition.

1. On 19 July 2010, a conciliation officer, pursuant to s 56(6) of the Accident Compensation Act, referred the following medical question to a Medical Panel for its opinion:

“What is the nature of the worker’s medical condition (including any sequelae) relevant to the accepted foot injury?”

1. The second defendant is the Convenor of Medical Panels pursuant to the provisions of the Accident Compensation Act.  Following the referral of the medical question, on 20 September 2010, a Medical Panel, the third defendant, answered the medical question in the following terms:

“In the Panel’s opinion, the worker is suffering from the residual effects of a Morton’s neuroma of the second web space of the left foot, treated surgically relevant to the accepted left…