Adones v Retirement Care Australia Operations (2) Pty Ltd (Ruling)
[2013] VCC 171
•6 February 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-01618
| MARIA ADONES | Plaintiff |
| v | |
| RETIREMENT CARE AUSTRALIA OPERATIONS (2) PTY LTD (ACN 113 961 103) | Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25 January 2013 | |
DATE OF RULING: | 6 February 2013 | |
CASE MAY BE CITED AS: | Adones v Retirement Care Australia Operations (2) Pty Ltd (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 171 | |
RULING
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SUBJECT – ACCIDENT COMPENSATION
CATCHWORDS – Application pursuant to s134AB of the Accident Compensation Act 1985 – referral of matter to Medical Panel to answer medical questions
LEGISLATION CITED – Accident Compensation Act 1985, s1324AB, s5 and s45
CASES CITED – Kocak v Wingfoot Australia Partners & Ors [2011] VSC 285; Amendola v United Doormakers (Vic) Pty Ltd (Ruling) [2012] VCC 1038; Monteiro v Tiago Enterprises Pty Ltd (Ruling) [2012] VCC 362
RULING – Application granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Hooper | Zaparas Lawyers |
| For the Defendant | Mr R Kumar | Hall & Wilcox |
HER HONOUR:
1 This is an application by the defendant for the referral of certain questions, said to be “medical questions”, to a Medical Panel pursuant to the provisions of s45 of the Accident Compensation Act 1985 (as amended) (“the Act”). The application was first foreshadowed in a letter dated 19 September 2012 by the defendant’s solicitor to the Court.
2 On 11 April 2012, the plaintiff issued an Originating Motion seeking leave pursuant to s134AB of the Act to bring common law proceedings in relation to injuries to her left and right hand and wrist, depression and anxiety she alleges she suffered in the course of her employment with the defendant.
3 The plaintiff’s application is brought under ss(a) and (c) of the definition of “serious injury” as contained in s134AB(37) of the Act, and leave is sought in respect of both pain and suffering and loss of earning capacity.
4 The plaintiff’s serious injury application is fixed for hearing on 16 and 17 July 2013.
5 Counsel for the plaintiff opposed the referral. The basis for the opposition was that the questions and answers to the questions will not be of assistance to the Court in determining the s134AB application. Secondly, there are factual issues and the medical evidence depends on the factual issues. Thirdly, the referral amounts to an abuse of process.
Background
6 According to the affidavit lodged in support of the plaintiff’s serious injury application, she first suffered tingling and numbness in her right hand and pain in and around her right wrist in July 2002.
7 In September 2002, the plaintiff lodged a Worker’s Claim Form in relation to her right hand injury, which claim was accepted.
8 In November 2002, the plaintiff had right carpal tunnel release surgery. When she returned to work in January 2003, she relied upon her left hand more than her right because her right hand was still painful following the surgery. In March 2003, she started experiencing pain in her left hand. In July 2003, she had a nerve conduction study of her left hand and wrist.
9 In late 2005, whilst working as a kitchen hand, she was required to work as a relieving cook, which became her official job with the defendant.
10 In April 2007, the food processor broke down, which required the plaintiff to carry out more manual work preparing food, such as chopping and mixing.
11 In October 2007, the plaintiff lodged a second Worker’s Claim Form in relation to the aggravation of her right hand injury, which claim was accepted. She returned to work in November 2007 with the assistance of an additional staff member and was provided with a 10-minute rest break each hour. By March 2008, the plaintiff was unable to cope with the 8-hour shift and returned to work as a kitchen hand, working Tuesday, Thursday and Friday.
12 In March 2008, the plaintiff complained of pain in her left forearm and numbness in the second and third fingers of her left hand. In May 2008, the plaintiff had surgery to her right wrist to remove a ganglion, and attended physiotherapy. After the surgery, the plaintiff suffered from depression.
13 In July 2008, the plaintiff returned to work and worked in the kitchen and laundry.
14 In November 2008, the plaintiff was required to perform work without an assistant, and the pain in her right hand and wrist returned and worsened. She also experienced pain in her left hand. She ceased work in December 2008 as she was unable to cope with her duties.
15 In June 2009, Dr Patel recommended a carpal tunnel release of her left hand/wrist but approval was not given for the procedure.
16 In August 2009, the plaintiff underwent a thoracic outlet duplex scan.
Relevant provisions of the Act
17 The defendant’s present application is for a number of questions, said to be “medical questions” to be referred to a Medical Panel pursuant to s45(1)(b) of the Act. That section provides:
“(1) If the court exercises jurisdiction under this Part, the court—
(a) …
(b)subject to subsections (1B), (1C) and (1D), must refer a medical question to a Medical Panel for an opinion under this Division if—
(i)a party to the proceedings requests that a medical question or medical questions be referred; and
(ii)that party notified the court of the party's intention to make the request no later than 14 days prior to the date fixed for hearing of the proceedings or another time determined by the court.”
18 The section goes on further to provide:
“(1A)This section extends to, and applies in respect of, an application for leave under section 134AB(16)(b)—
(a)so as to enable in accordance with subsection (1)(a) the court hearing the application to refer a medical question (including a medical question as defined in paragraphs (h) and (i) of the definition of medical question in section 5(1)); or
(b)so as to require in accordance with subsection (1)(b) the court hearing the application at the request of a party to the application to refer a medical question (including a medical question as defined in paragraph (h) of the definition of medical question in section 5(1) but excluding a medical question as defined in paragraph (i) of that definition)—
for the opinion of a Medical Panel.
(1B)The Court may refuse to refer a medical question to a Medical Panel on an application under subsection (1)(b) if the Court is of the opinion that the referral would, in all the circumstances, constitute an abuse of process.
(1C)The Court has on an application under subsection (1)(b) the discretion as to the form in which the medical question is to be referred to a Medical Panel.
(1D)The court must not refer a medical question if it appears to the court that the formation of an opinion by the Medical Panel on the medical question will depend substantially on the resolution of factual issues which are more appropriately determined by the court than by a Medical Panel.
… .”
19 Section 5 of the Act defines a “medical question” to mean:
“medical question means—
(a)a question as to the nature of a worker's medical condition relevant to an injury or alleged injury; or
(ab)a question as to the existence, extent or permanency of any incapacity of a worker for work or suitable employment and the question whether a worker is partially or totally incapacitated; or
(aba)a question as to whether a worker has a current work capacity or has no current work capacity and what employment would or would not constitute suitable employment; or
(abaa)a question as to whether a worker, on a particular date or during a particular period, had no current work capacity and if not, what employment would or would not have constituted suitable employment on that date or during that period; or
(abb)a question as to whether a worker has no current work capacity and is likely to continue indefinitely to have no current work capacity; or
(abc)a question as to whether a worker has a current work capacity and, because of the injury, is, and is likely to continue indefinitely to be incapable of undertaking—
(i)further or additional employment or work; or
(ii)further or additional employment or work that would increase the worker's current weekly earnings—
and, if not so incapable, what further or additional employment or work the worker is capable of undertaking; or
(ac)a question as to the medical, personal and household or occupational rehabilitation service provided, or to be provided, to a worker for an injury, including a question as to the adequacy, appropriateness or frequency of that service; or
(b)a question whether a worker's employment was in fact, or could possibly have been, a significant contributing factor to an injury or alleged injury, or to a similar injury; or
(ba)if paragraph (b) does not apply, a question whether a worker's employment was in fact, or could possibly have been, a contributing factor to an injury or alleged injury, or to a similar injury; or
… .”
Questions for Referral
20 Counsel on behalf of the defendant provided three questions to be determined by a Medical Panel. They are:
“1What is the nature of the plaintiff’s medical condition/s relevant to the injuries alleged in her serious injury application (‘the alleged injuries’), namely:
(a) Injury to the right hand and wrist;
(b) Injury to the left hand and wrist;
(c) Bilateral carpal tunnel syndrome;
(d) Thoracic outlet syndrome;
(e) Dorsal wrist scapho-lunate ganglio[n] requiring surgical removal;
(f) Depression;
(g) Anxiety?
2Was the plaintiff’s employment with the defendant in fact, or could it possibly have been, a significant contributing factor to the alleged injuries?
3To what extent do the conditions found in question 1 result from, or are materially contributed to by, the alleged injuries?”
21 In relation to Question 1(b) – injury to the left hand and wrist, I was informed that the plaintiff was previously examined by a Medical Panel in 2010, at which time her left hand and wrist condition was assessed. The Medical Panel provided the following diagnosis:
“In the Panel’s opinion, the plaintiff is suffering from symptoms of intermittent pain in the left wrist, with a complaint of symptoms of left hand alteration, but without clinical evidence of left median neuropathy, relevant to the alleged left hand/wrist injuries.”
22 The Medical Panel considered the relationship between the plaintiff’s left hand and wrist condition and her employment with the defendant, and stated:
“The Panel is of the opinion that the plaintiff’s employment could not possibly have been and was not in fact, a significant contributing factor to the development of any medical condition involving the plaintiff’s left hand/wrist.”
23 I shall now deal with each question.
24 The first question relates to a matter of diagnosis of the plaintiff’s medical condition. The words “nature of the” in Question 1 are superfluous. I accept a question of diagnosis must be relevant to the serious injury application. I do not accept the plaintiff’s submission that a diagnosis requires examination and determination of the factual background. I reject the plaintiff’s submission that the question and answers to the question will not be of assistance to the Court in determining the serious injury application.
25 In respect to paragraph (1)(b) relating to the left hand and wrist, in view of the Medical Panel’s opinion of 2010, the fact that the plaintiff has not returned to work and in view of the operation of s68(4) of the Act, in light of Kocak v Wingfoot Australia Partners & Ors,[1] I am minded to delete that sub-paragraph from the question.
[1][2011] VSC 285
26 Accordingly, Question 1 will be reformulated to read as follows:
“1What is the plaintiff’s medical condition/s relevant to the injuries alleged in her serious injury application (‘the alleged injuries’), namely:
(a) Injury to the right hand and wrist;
(b) Bilateral carpal tunnel syndrome;
(c) Thoracic outlet syndrome;
(d)Dorsal wrist scapho-lunate ganglio[n] requiring surgical removal;
(e) Depression;
(f) Anxiety?”
27 I accept that Question 2 and the answer is relevant to the ultimate determination by the Court.
28 In respect to Question 3, I consider that question should be re-drafted to read:
“If the worker has suffered a compensable injury to the right hand, has such injury resulted in or materially contributed to any permanent impairment?”
29 In reaching my decision, I have not been made aware of any factual issues in dispute which will affect the Medical Panel. It was not foreshadowed that there would be significant cross-examination of the plaintiff in relation to the work she performed or her credit. These were matters raised before Judge O’Neill in Amendola v United Doormakers (Vic) Pty Ltd (Ruling).[2] In Amendola, Judge O’Neill found that the questions depended on the determination of factual issues and the nature of the dispute was better determined by a judge. In that case, the plaintiff suffered injury to his lumbar spine over a number of years, when he was fifteen and eighteen, which resolved. Then in three separate workplace accidents, he alleged he suffered disc injury. In a subsequent motor vehicle accident, he suffered some increase in his spinal symptoms. In that case, there was a real issue as to the nature and extent of the plaintiff’s earlier injuries and conditions and the motor vehicle accident, and whether and to what extent those injuries played a role in the plaintiff’s condition. There was also a question of the plaintiff having suffered three separate workplace injuries. None of those matters arise in the case before me. I accept that the questions before me relate to whether the compensable injury gives rise to an impairment of a body function and not the extent of the impairment and the consequences.
[2][2012] VCC 1038
30 The plaintiff will have the opportunity of providing input into the agreed facts which have been prepared by the defendant and will be provided to the Medical Panel.
31 I reject the plaintiff’s submission that there is no utility in referring the question to a Medical Panel when all issues will be dealt with before a Judge in a s134AB application. Section 45(1A)(b) provides that I must refer a medical question to a Medical Panel for an opinion if it is a “medical question” as defined in s5 of the Act having regard to the serious matters to be determined in the serious injury application. There are two principal exceptions to the requirement to refer a medical question to the Medical Panel, which are if the referral constitutes an abuse of process (s45(1B)) and if the Court is of the opinion the formation of an opinion by the Medical Panel on the medical question will depend substantially on the resolution of factual issues which are more appropriately determined by the Court than a Medical Panel (s45(1D)).
32 I am not satisfied that the referral will constitute an abuse of process. In Monteiro v Tiago Enterprises Pty Ltd (Ruling),[3] Judge Saccardo refused an application for a referral to a Medical Panel which was made on the day of hearing of the serious injury application. His Honour determined it was an abuse of process as contemplated by s45(1)(b). In this case, an adjournment of the hearing of the serious injury application is not required to accommodate the referral to the Medical Panel.
[3][2012] VCC 362
33 As determined above, I am not satisfied that the formation of an opinion by the Medical Panel on the medical questions will depend substantially on the resolution of factual issues which are more appropriately determined by the Court.
34 Accordingly, I propose to refer the re-drafted medical questions to the Medical Panel.
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