Amani v Yellow Constructions Pty Ltd
[2016] VCC 943
•8 July 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-15-03647
| AHMAD SHUAIB AMANI | Plaintiff |
| v | |
| YELLOW CONSTRUCTIONS PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE BOWMAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 June 2016 | |
DATE OF JUDGMENT: | 8 July 2016 | |
CASE MAY BE CITED AS: | Amani v Yellow Constructions Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 943 | |
REASONS FOR JUDGMENT
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Catchwords: Workplace Injury Rehabilitation and Compensation Act 2013 – s274 – contested application in relation to referral of questions by defendant to a Medical Panel – Defendant’s Submissions summarising and containing references to surveillance – matters of credit raised – s274(5) – whether issues more appropriately determined by the Court – factors to be considered.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr N Dunstan | Zaparas Lawyers |
| For the Defendant | Ms K Gladman | Minter Ellison |
HIS HONOUR:
General Background
1 This matter comes before me by way of an application by the defendant to send medical questions to a Medical Panel pursuant to s274 of the Workplace Injury Rehabilitation and Compensation Act 2013, hereinafter referred to as “the Act”. The defendant has proposed that some six questions, which relate to the plaintiff’s application for a serious injury certificate pursuant to s134AB(17)(b) of the Accident Compensation Act 1985, should be forwarded to a Panel. The plaintiff opposes this in relation to three of the six questions.
2 Mr N Dunstan of counsel appeared on behalf of the plaintiff. Ms K Gladman of counsel appeared on behalf of the defendant. No oral evidence was called. Various documents were placed before me, including the six proposed questions and a variety of documents compiled by the defendant. In addition, each counsel made detailed and helpful submissions.
3 It should be said at the outset that there was no argument but that all six questions, as finally drafted, are medical questions within the meaning of the Act. Further, there was no opposition to questions 1, 2 and 3 being referred to the Panel. Essentially, these questions concerned whether the plaintiff had any medical condition of the back or psychiatric condition; whether any such condition was materially contributed to by an incident on 14 July 2012; and whether any such condition is permanent in that it is likely to persist for the foreseeable future. The dispute in relation to the remaining three questions focussed entirely on s274(5) of the Act. That sub-section reads as follows:
“A court must not refer a medical question if it appears to the court that the formation of an opinion by a Medical Panel on the medical question would depend substantially on the resolution of factual issues which are more appropriately determined by the court than by a Medical Panel.”
4 I shall summarise the contents of three questions in dispute. Question 4 in essence asks whether, as a result of a physical injury, the plaintiff has a capacity to undertake his pre-injury employment; whether he has a current work capacity; or whether he has no current work capacity. Further parts of the question inquire as to whether any incapacity results from or is materially contributed to by his back condition and whether incapacity for work is permanent within the meaning of the Act. Question 5 asks similar questions, but is confined to any psychiatric condition. Question 6 inquires of the plaintiff’s capacity for performing suitable employment, if he has such capacity, and in particular asks as to the number of days and hours per week that employment could be performed in the foreseeable future and what restrictions, if any, would be placed on such work currently and in the foreseeable future. It was not an issue in the present case, but I am somewhat curious as to why, for the purposes of question 6, the foreseeable future seems to be defined as “12 to 18 months”.
5 The plaintiff’s basis for the argument that s274(5) operates is a comparatively narrow one. In essence, as is apparent from the Defendant’s Submissions contained in the folder of material which is to accompany the Medical Panel Referral, considerable attention is directed to videos of surveillance of the plaintiff carried out on 13 March 2013 and 28 May 2014. It is argued that there is some commentary on what is on the videos, in addition to comparing this with the plaintiff’s presentation to medical examiners.
6 Thus, the central argument on behalf of the plaintiff focussed upon the surveillance and the attack on credit, it being asserted that this was a factual issue more appropriately determined by the Court than by a Medical Panel and that s274(5) was applicable accordingly.
7 I turn now to a summary of the submissions made on behalf of the parties, and I shall deal with them in the order in which they were presented.
The submissions on behalf of the defendant
8 The submissions of Ms Gladman on behalf of the defendant could be summarised as follows.
9 The surveillance material is but one of many aspects which would be considered by a Panel. When the members of the Panel were considering or viewing the surveillance material, the plaintiff and his representatives would be present and could take part in any discussion concerning it. The disc in relation to the surveillance of 13 March 2013 was forwarded to Dr George Wilson, occupational physician, who has seen the plaintiff on a couple of occasions at the request of the defendant and who has provided various reports. The surveillance of 28 May 2014 has not been viewed by a medical examiner.
10 The key issues to be determined by a Panel relate to the plaintiff’s capacity for employment. Surveillance and credit are but two of many issues to be considered. The opinions of treating and medico-legal doctors play a significant role. A Medical Panel is in an ideal position to assess capacity for employment and the questions in issue are valid medical questions directed to the central issue to be determined. The plaintiff will have every opportunity to present his case and the material gathered on his behalf.
11 On referral from the Magistrates’ Court, surveillance discs and reports are routinely included in the documents and material forwarded for consideration by a Panel.
12 I might say that when Ms Gladman was making her initial submissions, the issues involved had not been narrowed to the extent that they were after Mr Dunstan had also spoken. Accordingly, her reply, to which I shall come, dealt more specifically with what eventually became the central area of contention.
The submissions on behalf of the plaintiff
13 The submissions of Mr Dunstan on behalf of the plaintiff could be summarised as follows.
14 In fact, there is a schism or division in the Magistrates’ Court in relation to the referral of surveillance. One magistrate regularly forwards surveillance material. A second magistrate, who also hears WorkCover cases, routinely will not send surveillance material.
15 The key issue centres on s274(5) of the Act. In the Defendant’s Submissions, which form part of the material to be forwarded to a Panel, great emphasis is placed upon the credit of the plaintiff from the outset. The question of credit, in that there is an allegation that there are no findings on clinical examination to explain the plaintiff’s ongoing claims of back pain, is first raised in paragraph 2 of the Defendant’s Submissions. Inconsistencies on presentation to Dr Wilson are noted in paragraph 9. That the plaintiff was adopting a “sick role”, inconsistent with his travelling overseas and the like, is set out in the opinion of Dr Wilson in paragraph 13 and is an issue raised in paragraph 14 in relation to employment capacity. Paragraph 15 deals in detail with what is seen on a surveillance video of 13 March 2013. Some nine features of this are listed. Paragraph 16 asserts that there is no evidence on that video of the plaintiff having pain in his back, nor being in any discomfort and that he was moving normally. Paragraph 17 deals with Dr Wilson’s comments, he having viewed the video, which comments are strongly unfavourable to the plaintiff’s case. In paragraph 30, the details of the video taken on 28 May 2014 are set out at length. There are some 15 features of the video listed. In paragraphs 31 and 32 there are assertions that the plaintiff demonstrates on the video that he can move normally and is free of restriction. These are just some of the paragraphs in which issues of credit, particularly in relation to capacity for employment, are raised. These are matters concerning which the plaintiff should be cross-examined and re-examined properly and in a Court setting. The Court is expert in dealing with this.
16 Reference is made to the decision of his Honour Judge O’Neill in Yianni v Victorian WorkCover Authority [2016] VCC 347, where matters of video surveillance and credit were specifically addressed in relation to capacity for employment, his Honour coming to the conclusion that the issue of Yianni’s work capacity was a matter better determined by a Court. In his Judgment, his Honour refers to a number of decisions or Rulings of this Court. He also refers to the decision of the High Court of Australia in Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43 and to the unreported decision of the Court of Appeal in United Doormakers (Vic) Pty Ltd v Amendola (delivered 16 November 2012).
17 In Wingfoot, the High Court, in describing the function of a Medical Panel, stated that it is in every case to form and give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.
18 In United Doormakers, the Court of Appeal stated as follows:
“It seems obvious that where the nature and extent of a putative plaintiff’s injuries (and their effect on the capacity for employment) are disputed, and where the resolution of those matters may turn on issues of credit, a court is in a much better position to resolve those factual issues than would the Medical Panel. Very often the most illuminative evidence on such matters flows from cross-examination in an adversarial setting — something which is not available to a Medical Panel.”
19 Reference is also made to the recent decision of the Court of Appeal in Richter v Driscoll & Ors [2016] VSCA 142 where, at paragraph 95, Ashley JA and Kaye JA stated as follows:
“… to say that whether a worker has ‘no current work capacity’ requires consideration of the worker’s ability to work in employment having regard to the entirety of the worker’s personal circumstances — these including the injury-caused incapacity and as well other circumstances personal to the worker bearing upon his or her ability not simply to perform physical tasks required by particular employment, but to work in that employment as a settled member of the workforce”.
20 In summary, questions of credit and surveillance are central to the issue of the plaintiff’s capacity for employment. These are factual matters best determined by a Court in accordance with s274(5) of the Act.
The reply on behalf of the defendant
21 As earlier observed, by this time the issues to be determined had narrowed considerably, so that Ms Gladman was in a position to focus on them specifically. Bearing this in mind, the reply of Ms Gladman on behalf of the defendant could be summarised as follows.
22 In fact, the magistrate, who was referred to as not forwarding surveillance material to a Medical Panel, does do this if that material has been forwarded to a medical practitioner. In the present case, that has occurred in relation to the video of 13 March 2013.
23 True it is in the present case that the defendant relies on some surveillance material, but credit is not the major issue. Section 274(5) is not enlivened. Before a Medical Panel, the plaintiff will have the opportunity to comment upon the surveillance. A Panel will reach its conclusion on the basis of submissions, affidavits, examination and the like. A Panel will not make a decision based solely upon the surveillance or upon credit. The Medical Questions could be asked without reference to surveillance.
24 The surveillance has been sent to the plaintiff. There has been the opportunity for him to see it and instruct solicitors and counsel. There may be a perfectly reasonable explanation for what is seen. This can be a matter of submissions and comments. Before a Panel, there will be written submissions and there can be viva voce submissions. The plaintiff will have the opportunity to put his own version of events. It is pointed out that the Panel has not asked whether the plaintiff is creditworthy. Thus, the issue of suitable employment is not one that is solely or fundamentally dependent upon credit.
25 True it is that in a Court there will be cross-examination on surveillance, but that does not mean that the matter is more appropriately determined by a Court. Arguments about whether the plaintiff has adopted a “sick role”, has a chronic pain syndrome or some type of functional overlay do not necessarily involve credit. Such features involve medical opinion and are not factual issues upon which a Panel would base findings or answer questions. The answers in relation to such questions really depend upon the medical opinion of the Panel based upon a number of matters, including the plaintiff’s own evidence.
26 In the present case, Dr Wilson has expressed an opinion without seeing the additional surveillance disc. The material, including that of Dr Wilson, includes a great number of referrals to the question of work capacity. It is an issue which has required consideration. Medical Panels are used to dealing with such issues.
27 Reference is made to the decision of his Honour Judge Parrish in Yealand v Traveller Caravans Pty Ltd [2013] VCC 1048. In that case, his Honour ruled that the questions involved should be referred to a Medical Panel. The questions involved both physical and mental injuries and also involved questions as to capacity for suitable employment. (As I pointed out to Ms Gladman at the time, his Honour specifically found that there was no suggestion of credit issues in that case. I shall refer to that again in my Ruling.)
28 One of the real issues in the present application is whether the plaintiff has a back injury that has an organic basis. Surveillance is just one of several factors that is involved in the answering of medical questions in this regard.
29 In short, whilst credit is an important issue, it is not the most important or sole issue. A Medical Panel has both the authority and the ability to deal with the questions in dispute.
Ruling
30 I am of the opinion that questions 1, 2 and 3 fall within the operation of s274 of the Act and can be referred to a Medical Panel. However, in my opinion, questions 4, 5 and 6 fall within the exception contained in s274(5) of the Act and should not be so referred. I have come to that conclusion for the following reasons.
31 On the basis of the material put before me, I have no doubt but that credit is a very significant issue in this case. In turn, surveillance plays a very significant role in that credit issue. Issues relating to or based upon credit feature prominently in the Defendant’s Submissions to the Panel. I would refer to the submissions of Mr Dunstan as set out above and agree that there is a large number of paragraphs of the Defendant’s Submissions which refer specifically to or are based upon matters of credit. Many of these incorporate observations concerning surveillance.
32 In this regard, I would refer to what was said by Warren CJ and by Priest JA in United Doormakers. I would repeat the extract from the Judgment that was put to me by Mr Dunstan:
““It seems obvious that where the nature and extent of a putative plaintiff’s injuries (and their effect on the capacity for employment) are disputed, and where the resolution of those matters may turn on issues of credit, a court is in a much better position to resolve those factual issues than would the Medical Panel. Very often the most illuminative evidence on such matters flows from cross-examination in an adversarial setting — something which is not available to a Medical Panel.”
33 What was said by their Honours seems to me to be applicable to the situation in the present case. Indeed, it bears upon it directly.
34 In Yianni, the decision of his Honour Judge O’Neill to which reference has been made earlier, his Honour stated as follows:
“However, it is necessary to assess the facts which underpin a determination of a worker’s work capacity following an injury. … In applications of this nature, the starting point is the credibility of the plaintiff. … The determination of a plaintiff’s credibility is far better undertaken in the court adversarial process.”
35 His Honour went on to say that it was not uncommon for doctors’ opinions to be challenged on the basis of the accuracy of the history provided and in respect of video surveillance.
36 His Honour concluded this particular discussion with the following words:
“In summary, while medical opinion is an important aspect of assessment of work capacity for various areas of employment, there are other areas, including as to a worker’s credibility, … In my view, those matters are substantial, and are better determined by a court.”
37 I would respectfully agree with and adopt his Honour’s statements.
38 Obviously the situation in relation to referral of Medical Questions will vary from case to case, depending upon the nature of the questions and whether or not s274(5) would appear to be applicable. I appreciate that, in Yealand, his Honour Judge Parrish referred questions, including some relating to capacity to engage in suitable employment. However, his Honour also stated that it was not particularly clear what “factual issues” the Medical Panel would have to determine. He went on to state specifically that “There is no suggestion of credit issues…”. Not only does this distinguish the situation in Yealand from that in the present case, but the clear impression given is that, had there been credit issues involved, his Honour may have given the matter further consideration.
39 In any event, what was said by the Court of Appeal in United Doormakers is clear. Where the resolution of matters may turn on issues of credit, a Court is in a much better position to resolve those factual issues than is a Medical Panel.
Conclusion
40 Questions 1, 2 and 3 are questions which can be referred to a Medical Panel. Section 274(5) applies in relation to questions 4, 5 and 6. The defendant’s application to refer them is refused.
41 I shall hear the parties as to any ancillary orders that are required.
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