Amendola v United Doormakers (Vic) Pty Ltd (Ruling)
[2012] VCC 1038
•15 August 2012
| 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-11-03675
| ANTONY AMENDOLA | Plaintiff |
| v | |
| UNITED DOORMAKERS (VIC) PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 August 2012 | |
DATE OF RULING: | 15 August 2012 | |
CASE MAY BE CITED AS: | Amendola v United Doormakers (Vic) Pty Ltd (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1038 | |
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, s134AB, s5 and s45
CASES CITED – Rizk v Sigiard Security Services (Vic) Pty Ltd [2009] VCC 00636; Monteiro v Tiago Enterprises Pty Ltd [2012] VCC 362
RULING – Application refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A D B Ingram | Clark Toop & Taylor |
| For the Defendant | Mr S A Smith | Thomsons Lawyers |
HIS 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 10 April 2012 by the defendant’s solicitors to the Court.
2 On 1 August 2011, the plaintiff issued an Originating Motion seeking leave pursuant to s134AB of the Act to bring common law proceedings in relation to injuries he alleges he suffered to his lumbar spine in the course of his employment with the defendant.
3 According to the affidavit lodged in support of the plaintiff’s serious injury application, he first suffered back problems when he was fifteen years of age as a result of being “dumped” by a wave at Portsea Back Beach. Subsequently, when he was eighteen years of age, he was involved in a motor vehicle accident, as a result of which he suffered some upper back soreness over a period. Both injuries appear to have resolved. Further, he had unrelated health issues in particular a bowel condition which caused left leg pain.
4 On the 7 July 2008, he fell from a ladder while carrying out his employment duties, and suffered pain in his lower spine. He returned to work after a short period, and, when leaning forward working in a production area, felt some clicking in his lower back and as a result, had difficulty walking and standing up. He says that subsequently, his back went into spasm. He was taken by an ambulance to hospital. He again resumed employment with the defendant until January 2009, when his left foot was caught in a protruding piece of work equipment, he twisted his back and suffered an aggravation of the back condition. As a result of these three workplace incidents, the plaintiff alleges he has suffered a significant disc injury at the L5-S1 level which has required extensive conservative treatment and has led to disablement, including in respect of his social, domestic, recreational and workplace activities. He has not worked since 2009, and was made redundant by the defendant in February of that year.
5 His application is brought under subsection (a) 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.
6 Further, on 18 February 2009, the plaintiff was involved in a further motor vehicle accident, as a result of which he suffered some increase in his spinal symptoms. He also suffered injury to a shoulder.
7 The plaintiff’s serious injury application was subject to directions orders made 3 November 2011 and was listed for hearing on 4 May 2012. The matter came before the Court on that day, but was not reached and was adjourned to 29 January 2013.
8 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.”
(my emphasis)
9 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.
… .”
10 Section 5 of the Act defines a “medical question” to mean:
“(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
…
(h)a question prescribed to be a medical question in respect of an application for leave under section 134AB(16)(b); or
(i)a question determined to be a medical question by a court hearing an application for leave under section 134AB(16)(b).”
11 Mr Smith, on behalf of the defendant, provided six proposed questions to be determined by a Medical Panel. Those questions are annexed to this Ruling. Generally, the questions fall into two categories. Question 1 enquires as to the nature of the plaintiff’s medical condition relevant to alleged injuries to his lumbar spine, left lower limb and any psychological/psychiatric injury. Questions 2 to 6 enquire as to the plaintiff’s capacity for employment, in relation to a number of specified areas of employment and generally, on either a full-time or part-time basis.
12 Mr Smith referred me to a decision of his Honour Judge Misso in Rizk v Sigiard Security Services (Vic) Pty Ltd.[1] In that decision, his Honour examined a number of questions which a worker sought to have referred to a Medical Panel, and determined that s45(1)(b) was a mandatory requirement for a question(s) to be referred to a Medical Panel, providing the question(s) was in fact a “medical question” within the definition contained in s5, having regard to the matters to be determined in the serious injury application. Importantly, however, at the time of his Honour’s judgment, s45(1D) was not included in the Act, and was inserted by subsequent amendment in 2010.[2]
[1][2009] VCC 00636
[2]See s76(3) Accident Compensation Amendment Act 2010 (No 9 of 2010)
13 I further had regard to a decision of his Honour Judge Saccardo in Monteiro v Tiago Enterprises Pty Ltd,[3] although application for a referral to a Medical Panel in that case was made on the day of hearing of the serious injury application, and his Honour determined that it was an abuse of process as contemplated by s45(1B).
[3][2012] VCC 362
14 For the purpose of this Ruling, I shall presume that all of the questions which the defendant seeks to have referred to a Medical Panel fit within the definition of “medical question” as defined in s5 of the Act, although I have some reservations about at least some of the questions. The real matter to determine is, given the imprimatur contained in s45(1)(b), whether such questions should not be referred “if it appears to the court that the formation of an opinion by the Medical Panel … will depend substantially on the resolution of factual issues which are more appropriately determined by the Court than a Medical Panel”.
15 In determining this issue, it is necessary to consider the process by which and the manner in which a court determines whether a worker meets the “serious” injury level as prescribed by the Act. In order for a court to be satisfied that the plaintiff reaches that level in respect of pain and suffering, the impairment to the body function, when judged by a comparison with other cases in the range of possible impairments or losses, must be fairly described as being more than significant or marked, and as being at least ‘very considerable’.
16 In relation to determining whether a worker achieves the “serious” level in respect of earning capacity, the worker must prove that he has suffered a loss of earning capacity of at least 40 per cent when a comparison is made between his before and after injury earnings.
17 Question 1 of the defendant’s proposed questions asks as to the nature of the plaintiff’s medical condition to the lumbar spine, left lower limb and psychological or psychiatric injuries. I was not taken to any of the medical opinions filed in support of the serious injury application. It is common for different medical practitioners to come to different conclusions as to the nature and extent of a worker’s “medical condition” arising from injury. One practitioner may diagnose a worker as suffering a disc related injury with radiologically confirmed referred sciatic pain. Another practitioner may regard the same worker’s condition as a musculoligamentous strain. Regularly, practitioners are called to be cross-examined and their opinion challenged as to a worker’s condition.
18 Further, in this application, there is the prospect of real issues as to the nature and extent of the plaintiff’s earlier injuries and conditions, and the subsequent motor vehicle accident, and whether, and to what extent, those injuries play a role in the plaintiff’s present condition. There is also the question of the plaintiff, it appears, having suffered three separate workplace incidents. No doubt the plaintiff will be carefully cross-examined about those incidents and defendant’s counsel, will seek to direct responsibility for pain and restriction away from them and towards the other non-work incidents.
19 In relation to loss of earning capacity questions, while again the opinion of the various practitioners is likely to vary, in addition, there is often evidence called from vocational experts who examine the medical opinions, research potential areas of employment to which a worker may or may not be suited, and provide an opinion as to whether the worker could undertake the duties involved.
20 Of most importance is the examination and cross-examination of the worker. For the purpose of serious injury applications, generally the plaintiff files several affidavits setting out his or her background, other physical and psychological conditions, the circumstances giving rise to injury, and the consequences as a result. Those matters are the subject of careful and often detailed challenge by defendants’ counsel. The capacity of a worker to undertake employment is, in my experience, usually the subject of significant cross-examination.
21 It is only after all of these matters are undertaken, and the trial judge has the benefit of submissions by each counsel at the conclusion of the evidence, that he or she is in a position to make a determination as to serious injury to the level prescribed by the Act. In that process, the judge will make a determination as to the nature and extent of the plaintiff’s current medical condition and the extent to which it was caused or contributed to by the subject workplace injury. Again, it is only after that process that the trial judge will be in a position to determine the plaintiff’s capacity for employment generally, or specifically as to a range of jobs which are suggested that he or she has the capacity for, and whether that capacity is for full-time or part-time employment. In many serious injury applications, the credibility of the plaintiff is a key issue; it is only after the plaintiff has been cross-examined that a judge is capable of determining whether or not to accept the allegations made by the plaintiff in his or her affidavit and in the histories to the various medical practitioners.
22 It is only after that whole detailed process has been undertaken that an assessment can be properly made as to the nature and extent of the plaintiff’s medical condition, and his or her capacity for employment.
23 While I am not completely familiar with the process undertaken in the course of a Medical Panel assessment, I understand that it usually involves several practitioners, often with a different speciality. The plaintiff appears and is examined by the practitioners. There is only one examination and assessment, and the process is not adversarial. I presume they have available the opinions of the various treating and consultant doctors which are to be relied upon in the course of the serious injury application. However, there is no process by which the opinions of those doctors, and the allegations of the plaintiff can be challenged.
24 The questions which the defendant seeks to refer to the Medical Panel go to the heart of the determination by a court as to whether a plaintiff achieves the “serious injury” level both in respect of pain and suffering and economic loss.
25 For the reasons referred to above, the resolution of those matters is best determined by a court rather than a Medical Panel, and substantially so. I am of the opinion that the determination of those questions will substantially depend on the factual issues to which I have referred. In the circumstances, the considerations fit clearly within the exemption prescribed by s45(1D) of the Act.
26 The defendant’s application is refused.
27 I shall hear from the parties as to costs.
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